Repeat drunk drivers' constitutional rights at question for State Supreme Court

Posted: 9:26 AM, Nov 02, 2021
Updated: 2021-11-02 23:33:30-04
drinking and driving

A drunk driving loophole could open the door for softer penalties for repeat offenders.

Scott Forrett was convicted of his 7th OWI in 2017.

However, the Wisconsin Court of Appeals voted in favor of Forrett regarding a dismissed 1996 OWI charge being used to increase his penalty in 2017 because he refused a blood draw. Since that 1996 arrest, Forrett received two more OWIs in 2013 and 2017. At the time, he was charged with his 6th and 7th OWIs, respectively.

But it was during sentencing for his 2017 case, when his attorney first questioned how his client was being sentenced.

“Judge, August 26, 1996 was a refusal,” Attorney Nicholas Martinez said. “There wasn’t an OWI conviction but it still counts as a prior.”

Sentencing transcript Forrett
The court transcript shows when Scott Forrett's attorney initially questioned the count of OWI convictions.

Martinez raised the question at the 2017 sentencing, but didn’t push more.

“Judge, the case where the OWI was a refusal is odd,” Martinez said during sentencing. “I looked it up on CCAP. The OWI was dismissed and read into a felony eluding. That’s all I’m aware of.”

Back in 1996, a criminal complaint says Forrett was seen weaving in lanes of traffic three separate times before officers attempted to stop him. Forrett then led police on a roughly eight mile chase, reaching speeds of 65 miles per hour on some Waukesha and Jefferson County roadways. Officers say he drove “past a set of railroad tracks where the gates were coming down and the train lights were flashing.”

Forrett eventually pulled over and officers noted a strong odor of intoxicants, bloodshot eyes and slurred speech. When ordered to put his hands on his head and get on the ground, the criminal complaint says Forrett told police, “[Expletive] you guys. I ain’t playing your game.”

Read-in charges explained
When a charge is dismissed, but read-in, it's essentially like the crime itself never happened but a court can consider the facts around the charge.

Forrett faced three charges from the incident: Knowingly fleeing/eluding an officer, OWI 5th with a blood test refusal and operating after revocation or suspension, 4th offense. He pleaded guilty to the first and third charges, but the OWI with refusal was dismissed, but read-in.

When a charge is dismissed but read-in, essentially the judge can take the facts around that charge into account for the purpose of sentencing, but the charge itself is dropped.

Flash forward to 2017. Judge Michael J. Aprahamian, during sentencing, referred to Forrett’s refusal of a blood test in the reasoning for handing down his sentence.

“Back in the 90s there, and we have this refusal, and that’s what is mitigating,” Judge Aprahamian said.

Wisconsin OWI graduated sentencing
As OWI offenders accumulate more offenses, the penalties get harsher. The gap between 6th and 7th are at the forefront of State v. Forrett.

It was a big distinction. A 6th OWI in Wisconsin is a Class G Felony, which calls for a 1 to 10 year sentence. A 7th OWI is a Class F Felony, requiring a 3 to 12.5 year sentence.

Judge Aprahamian sentenced Forrett to 11 total years, six in prison, five years of extended supervision. His attorneys appealed, saying it was unconstitutional.

They won.

Maistelman's prediction

The brief read, in part, “The Wisconsin OWI statutes that allow a [blood draw] refusal to count as a prior offense to increase a person’s sentence are unconstitutional facially and as applied to Mr. Forrett. Accordingly, this Court should reverse and remain this case for the circuit court to commute Mr. Forrett’s OWI 7th to an OWI 6th and either hold a new sentencing hearing or impose the maximum sentence authorized for an OWI 6th.”

“I think the Court of Appeals got it right in this case,” Attorney Michael Maistelman said. “They couldn’t count the refusal to provide a blood sample as a prior OWI.”

Forrett’s attorneys declined to be interviewed for this story, as the case is still being litigated through the State Supreme Court. Maistelman is a legal analyst. He compares the blood test refusal to the right to remain silent.

Comparing right to remain silent

“You have a right not to testify against yourself,” Maistelman said. “You have that right and that’s whether it’s via testifying in person or testifying by being forced to provide your blood.”

“How many chances are we going to give these people?” Marla Hall said. “We’re already giving them way too many chances. It’s destroying lives.”

Hall doesn’t use those words lightly. Five years ago today, her only child, Clenton Hall, along with three other people, were killed by a wrong-way drunk driver on I-94. The accused driver, Brysen Wills, had at least two prior OWI convictions. He has yet to face consequences for the incident because a brain injury he received during the deadly crash has deemed him unfit to stand trial several times.

Marla recalls learning her son was killed

It’s the biggest thing that frustrates her search for justice right now. But there are many microaggressions she’s felt over the last five years as she’s vowed to change drunk driving laws in Wisconsin.

“It’s frustrating,” Hall said. “I don’t want [Clenton] to be a statistic. They don’t care that he’s another statistic. Of course, the drunk lives.”

The fire inside of Hall has brought her to the Capitol plenty of times since 2016. She’s been on television more times than she’d like to have been, keeping this problem alive so more families don’t have to deal with the pain she’s been forced to endure.

When the I-Team brought the Forrett case to her for her opinion, Hall was livid at the potential outcome.

“I was upset,” Hall said. “As many as that man has had, he should never be out. How many chances do we give these people? Dismissed, but read-in? It’s supposed to count. This is ridiculous. I hope the Supreme Court doesn’t change this.”

On this crisp fall day, Hall’s anger came through during specific moments about the current state of Wisconsin’s OWI laws. But it couldn’t overshadow the joy she has when talking about her son.

Nothing but positive memories

“He was such a goof,” Hall said with a smile. “I know everybody says that but he was the funniest person. He was the ‘atypical’ accountant. They’re sort of nerdy and quiet. Not him. He always made everybody laugh at work. I used to tell everyone at work, I got the wrong kid at the hospital. Plus, he was smarter than a whip.”

Photos of her son are all around her home. On this day, she pointed out a photo of a young Clenton with Brett Favre. Memories, like that day, are more vivid than ever.

"He was going to tell Brett some tips on how to play the Cowboys," Hall said. "But when he saw Brett, he just stood there. Brett says, 'Come here buddy.' That's the first time he never said anything. I couldn't believe it. He had all these ideas to play the Cowboys."

Clenton was a burgeoning accountant for RitzHolman. He and his girlfriend, Katey, who was also killed in the crash, were planning on getting married and had already been approved for a home mortgage. He was 26 years old, ready to start his life when it came to a screeching halt.

“I’d be a grandma,” Hall said. “He told me, when he was 30, I could be grandma. He lost his future. There is no future. No marriage. No kids. You’re never the same, you know? It’s hard to be happy. Everything changes.”

A future lost

Unfortunately, the changes coming next for Wisconsin’s OWI laws could be for the worse in Hall’s eyes. Should the State Supreme Court rule in Forrett’s favor, he could have at least a year shaved off of his prison sentence. It’s an outcome that Maistelman believes will happen and could have greater impacts on repeat offenders.

“There could be quite a few people that have been charged and convicted of additional OWIs, based upon the refusal, that could try to collaterally attack that to reduce and throw out one of the OWI convictions,” Maistelman said.

Take Milwaukee County for example. The District Attorney can’t say exactly how many blood draw refusals there are annually, but estimates at least 150 cases per year.

“I’m just tired of it,” Hall said. “Nothing is changing. The victims have no say in that. They need more say in that. It’s not right.”

Marla's message to Supreme Court

Hall is helping victims have a voice. In the past five years, she’s been crucial in the fight to strengthen OWI laws in Wisconsin. Just last year, Gov. Tony Evers signed two bills into law; one creating a mandatory minimum sentence for drunk drivers who kill someone and another that creates a mandatory minimum sentence for 5th and 6th OWI offenders.

It’s progress, albeit slower than she’d hoped. But it isn’t stopping her motivation to prevent tragedies like hers from happening more often in Wisconsin.

“I’m so sick of saying, baby steps,” Hall said. “It’s not fair.”

“The reasons we’re in court are because people are presumed innocent until proven guilty,” Maistelman said. “People that commit heinous crimes, like getting in a car when you’re drunk and driving, it’s like a loaded gun. If I was the person who lost a loved one, I would not really care if this defendant had their constitutional rights violated. I would want an eye for an eye. But we live in a society where laws and justice are supposed to be respected.”

Maistelman on fairness

Hall’s biggest goal is to change Wisconsin’s first OWI offense from just a ticket, to a misdemeanor where the driver has to show up in court. Wisconsin is the only state in the country with a penalty like this.

Attorneys in the Forrett case will submit arguments to the State Supreme Court later in November.

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