State v. Nicholas L. Sparby-Duncan

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 6, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP1012-CR Cir. Ct. No. 2023CT10

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

NICHOLAS L. SPARBY-DUNCAN,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Dunn County:
JAMES M. PETERSON, Judge. Affirmed.

Before Stark, P.J., Hruz, and Gill, JJ.

¶1 GILL, J. Nicholas L. Sparby-Duncan appeals from a nonfinal order
denying his motion to dismiss criminal charges of failing to install an ignition
interlock device (IID) and operating a motor vehicle with a prohibited alcohol
No. 2024AP1012-CR

concentration (PAC), as a second offense.1 The issue on appeal is whether the
statutes criminalizing the failure to install an IID and driving with a PAC are
unconstitutional as applied to Sparby-Duncan because Sparby-Duncan would not
have been subject to an IID order or a 0.02 PAC absent his prior refusal to submit
to a warrantless blood draw.

¶2 Sparby-Duncan argues that “the use of the prior refusal to impose
criminal penalties” on him is unconstitutional under the United States Supreme
Court’s decision in Birchfield v. North Dakota, 579 U.S. 438 (2016), and the
Wisconsin Supreme Court’s decisions in State v. Dalton, 2018 WI 85, 383
Wis. 2d 147, 914 N.W.2d 120, and State v. Forrett, 2022 WI 37, 401 Wis. 2d 678,
974 N.W.2d 422. Conversely, the State argues that the IID and PAC statutes are
constitutional as applied to Sparby-Duncan because “the connection between
Sparby-Duncan’s prior refusal and his current charges is indirect at best,” and
“Sparby-Duncan’s IID order was a civil penalty or consequence for refusing a
blood draw, which is permissible under Birchfield.”

¶3 We agree with the State that Sparby-Duncan has failed to show that
the IID and PAC statutes are unconstitutional as applied to him. It is undisputed
that, pursuant to Birchfield, a state may impose civil penalties on a driver based on
his or her refusal to submit to a warrantless blood draw. See Birchfield, 579 U.S.
at 476-77; Forrett, 401 Wis. 2d 678, ¶8 n.5. Here, as a result of Sparby-Duncan’s

We granted Sparby-Duncan’s petition for leave to appeal the circuit court’s nonfinal
1

order on July 24, 2024. See WIS. STAT. RULE 809.50(3) (2023-24). This appeal was then
converted from a one-judge appeal to a three-judge appeal under WIS. STAT. RULE 809.41(3)
(2023-24).

All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise
noted.

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refusal, the State imposed a civil penalty on him—namely, an IID order. As a
result of the IID order, by statute, Sparby-Duncan is subject to a PAC of 0.02,
rather than 0.08. The IID and PAC charges in the instant case threaten to impose
criminal penalties on Sparby-Duncan for violating the IID order and for driving
with a blood alcohol concentration above 0.02, not for refusing to submit to a
warrantless blood draw. Stated differently, the refusal and the IID and PAC
charges are sufficiently attenuated from one another such that the IID and PAC
charges are not unconstitutional under Birchfield, Dalton, and Forrett. We
therefore affirm the circuit court’s order denying Sparby-Duncan’s motion to
dismiss the IID and PAC charges.

BACKGROUND

¶4 In January 2023, the State filed a criminal complaint charging
Sparby-Duncan with three counts: (1) failure to install an IID; (2) operating a
motor vehicle after revocation; and (3) operating a motor vehicle while intoxicated
(OWI), as a second offense. The State subsequently filed an amended complaint
adding a fourth count—operating with a PAC, as a second offense. The amended
complaint alleged that Sparby-Duncan had operated a motor vehicle with a blood
alcohol concentration of 0.078. The amended complaint further alleged that
Sparby-Duncan was subject to a 0.02 PAC because he was “subject to an order
under [WIS. STAT. §] 343.301”—i.e., an IID order. See WIS. STAT.
§ 340.01(46m)(c) (providing that “[p]rohibited alcohol concentration” means “an
alcohol concentration of more than 0.02” “[i]f the person is subject to an order
under [§] 343.301”).

¶5 Sparby-Duncan moved to dismiss Counts 1 and 4—the IID and PAC
charges—arguing that the statutes criminalizing the failure to install an IID and

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No. 2024AP1012-CR

operating a motor vehicle with a PAC are unconstitutional as applied to him under
Birchfield, Dalton, and Forrett. As background for his motion, Sparby-Duncan
alleged that he “was convicted in Eau Claire County of refusing to submit to a
warrantless blood draw” in 2008, which “was his first OWI-related conviction”
under WIS. STAT. § 343.307(1). He further alleged that on December 17, 2013, he
pled guilty to operating a motor vehicle with a detectable amount of a restricted
controlled substance (RCS) in his blood, which was his second OWI-related
conviction under § 343.307(1). According to the motion to dismiss, as a result of
the 2013 RCS conviction, Sparby-Duncan’s driver’s license was revoked, and he
was ordered to install an IID for a period of 12 months, pursuant to WIS. STAT.
§ 343.301(1g) (2013-14).

¶6 It is undisputed that, following the Wisconsin Supreme Court’s
decision in Forrett, the State could no longer count Sparby-Duncan’s 2008 refusal
as a prior OWI-related offense under WIS. STAT. § 343.307(1). See Forrett, 401
Wis. 2d 678, ¶1 (holding that “Wisconsin’s OWI graduated-penalty scheme is
unconstitutional to the extent it counts prior revocations for refusing to submit to a
warrantless blood draw as offenses for the purpose of increasing the criminal
penalty” for a subsequent OWI offense). As a result, the State charged the OWI
and PAC counts in this case as second offenses, rather than third offenses.

¶7 However, in his motion to dismiss, Sparby-Duncan argued that he
was entitled to additional relief under Forrett, along with Birchfield and Dalton.
Specifically, he argued that those cases should be interpreted to prevent the State
from imposing “criminal consequences that are inextricably intertwined with past
refusals of the type the parties to this case agree are not countable under WIS.
STAT. § 343.307(1), including those resulting from orders to install IIDs.”
Sparby-Duncan further argued that the IID and PAC charges in this case are

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No. 2024AP1012-CR

inextricably intertwined with his 2008 refusal because, absent that refusal, the
sentencing judge in the 2013 case could not have imposed an IID order, and absent
the IID order, he would not have been subject to a 0.02 PAC.

¶8 In response to Sparby-Duncan’s motion to dismiss, the State argued
that the IID and PAC charges do not seek to impose criminal penalties on
Sparby-Duncan based on his 2008 refusal. Instead, the State asserted that the IID
and PAC charges seek to impose criminal penalties on Sparby-Duncan based on
his failure to comply with the IID order, which was a civil penalty for the 2008
refusal, and based on his act of driving with a PAC. The State emphasized that,
under Birchfield, the government may impose civil penalties as a result of an
individual’s refusal to submit to a warrantless blood draw.

¶9 Following a nonevidentiary hearing, the circuit court denied
Sparby-Duncan’s motion to dismiss the IID and PAC charges. The court reasoned
that the Wisconsin Supreme Court’s holding in Forrett “was that you couldn’t
enhance a later OWI … based upon an offense that shouldn’t be counted because
of a refusal for a blood draw.” The court further reasoned that the IID order
imposed against Sparby-Duncan in 2013 was not an “ongoing punishment” for his
2008 refusal and that any potential criminal punishment in the instant case would
instead “come from failing to install” the IID. The court stated that the “[s]ame
reasoning” applied to Sparby-Duncan’s motion to dismiss the PAC charge.

¶10 Sparby-Duncan now appeals from the circuit court’s order denying
his motion to dismiss.2

2
We held oral argument in this case on November 18, 2025.

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No. 2024AP1012-CR

DISCUSSION

¶11 Under either a facial or an as-applied constitutional challenge, “the
constitutionality of a statute is a question of law we review de novo.” Waupaca
County v. K.E.K., 2021 WI 9, ¶16, 395 Wis. 2d 460, 954 N.W.2d 366 (citation
omitted). In this case, Sparby-Duncan raises an as-applied challenge, arguing that
the statutes criminalizing the failure to install an IID and operating a motor vehicle
with a PAC are unconstitutional as applied to him.

¶12 “As-applied challenges question the constitutionality of a statute ‘on
the facts of a particular case or [as applied] to a particular party.’” Mayo v.
Wisconsin Injured Patients & Fams. Comp. Fund, 2018 WI 78, ¶56, 383 Wis. 2d
1, 914 N.W.2d 678 (alteration in original) (citation omitted). In an as-applied
challenge, we presume that the statute is constitutional, but we do not presume that
the State has applied the statute in a constitutional manner. Id. The party
challenging the statute’s constitutionality “must prove beyond a reasonable doubt
that as applied to him or her the statute is unconstitutional.” Id., ¶58.

¶13 As noted above, Sparby-Duncan argues that the statutes
criminalizing the failure to install an IID and operating a motor vehicle with a
PAC are unconstitutional as applied to him because the IID and PAC charges in
this case seek to impose criminal penalties on him based on his prior refusal of a
warrantless blood draw. Sparby-Duncan’s argument in this regard rests on the
United States Supreme Court’s decision in Birchfield and the Wisconsin Supreme
Court’s subsequent decisions in Dalton and Forrett. Accordingly, we begin by
providing an overview of those cases.

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I. Birchfield v. North Dakota

¶14 In Birchfield, the United States Supreme Court addressed the
validity of implied consent laws that “impose penalties on motorists who refuse to
undergo testing when there is sufficient reason to believe they are violating the
State’s drunk-driving laws.” Birchfield, 579 U.S. at 444. Specifically, the Court
addressed whether such laws “violate the Fourth Amendment’s prohibition against
unreasonable searches” when they “go beyond” imposing civil penalties for a
refusal to submit to a requested test and “make it a crime for a motorist to refuse to
be tested after being lawfully arrested for driving while impaired.” Id.

¶15 In answering this question, the Birchfield Court drew a distinction
between breath tests and blood tests. The Court concluded that “the Fourth
Amendment permits warrantless breath tests incident to arrests for drunk driving,”
reasoning that “[t]he impact of breath tests on privacy is slight, and the need for
BAC testing is great.” Id. at 474. Conversely, the Court concluded that the
Fourth Amendment does not permit warrantless blood tests incident to arrests for
drunk driving because “[b]lood tests are significantly more intrusive [than breath
tests], and their reasonableness must be judged in light of the availability of the
less invasive alternative of a breath test.” Id.

¶16 “Having concluded that the search incident to arrest doctrine does
not justify the warrantless taking of a blood sample,” the Birchfield Court next
addressed whether “such tests are justified based on the driver’s legally implied
consent to submit to them.” Id. at 476. The Court acknowledged that “a search is
reasonable when a subject consents” and that the Court’s “prior opinions have
referred approvingly to the general concept of implied-consent laws that impose

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No. 2024AP1012-CR

civil penalties and evidentiary consequences on motorists who refuse to comply.”
Id. at 476-77. The Court reasoned, however, that it is

another matter … for a State not only to insist upon an
intrusive blood test, but also to impose criminal penalties
on the refusal to submit to such a test. There must be a
limit to the consequences to which motorists may be
deemed to have consented by virtue of a decision to drive
on public roads.

Id. at 477.

¶17 The Birchfield Court stressed that the Fourth Amendment prohibits
“unreasonable searches” and, as such, the relevant question is whether a
warrantless blood draw is reasonable, since “reasonableness is always the
touchstone of Fourth Amendment analysis.” Id. at 455, 477. “[A]pplying this
standard,” the Court concluded “that motorists cannot be deemed to have
consented to submit to a blood test on pain of committing a criminal offense.” Id.
at 477.

II. State v. Dalton

¶18 The Wisconsin Supreme Court subsequently applied and expanded
upon Birchfield’s holding in Dalton. Following a single-vehicle crash, Dalton
refused a warrantless blood draw. Dalton, 383 Wis. 2d 147, ¶¶6-13. He later
entered no-contest pleas to OWI, as a second offense, and operating after
revocation. Id., ¶19. During its sentencing remarks, the circuit court specifically
addressed Dalton’s refusal to submit to a blood draw, stating:

The other thing you did is anybody who drives a motor
vehicle in Wisconsin impliedly consents to a blood or
breath draw after they’re arrested. And you were arrested,
and you disregarded that, and you will be punished for that
today. You don’t have the right not to consent. And that’s
going to result in a higher sentence for you.

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No. 2024AP1012-CR

Id., ¶21.

¶19 On appeal, Dalton argued, among other things, that the circuit court
had “erroneously exercised its discretion at sentencing” when it “impermissibly
lengthened his sentence because he refused a warrantless blood draw, thereby
violating” Birchfield. Dalton, 383 Wis. 2d 147, ¶55. The Wisconsin Supreme
Court agreed, concluding that the circuit court “violated Birchfield by explicitly
subjecting Dalton to a more severe criminal penalty because he refused to provide
a blood sample absent a warrant.” Id., ¶67.

¶20 The Dalton court reasoned that Birchfield “dictates that criminal
penalties may not be imposed for the refusal to submit to a blood test,” and “[a]
lengthier jail sentence is certainly a criminal penalty.” Dalton, 383 Wis. 2d 147,
¶59. The court then concluded that the circuit court was “definitive in its intent to
give Dalton a longer sentence for the sole reason that he refused to submit to a
blood test,” which was “a violation of Birchfield.” Id., ¶60. Ultimately, the court
stated that Dalton “was criminally punished for exercising his constitutional right”
to refuse a warrantless blood draw, which is “impermissible” under “[e]stablished
case law.” Id., ¶61 (citing cases for the proposition that a defendant cannot
receive a harsher sentence solely because the defendant availed him- or herself of
a constitutional right).

¶21 Thus, Dalton went beyond the United States Supreme Court’s
holding in Birchfield, which merely recognized that a warrantless blood draw is
not reasonable for purposes of the Fourth Amendment when the state has
threatened the individual with criminal, as opposed to civil, penalties for refusing.
In contrast, Dalton recognized a “constitutional right” to refuse a warrantless
blood draw. Dalton, 383 Wis. 2d 147, ¶61.

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III. State v. Forrett

¶22 Thereafter, in Forrett, the Wisconsin Supreme Court considered the
constitutionality of Wisconsin’s graduated-penalty scheme for OWI offenses in
light of Birchfield and Dalton. Forrett, 401 Wis. 2d 678, ¶1. The court explained
that under that statutory scheme, “[a] person’s first OWI offense is generally a
civil infraction,” but “[s]ubsequent offenses are criminal and, depending on how
many prior offenses a person has, may constitute a felony punishable by up to 10
years of initial confinement and 5 years of extended supervision.” Id., ¶7. The
court further explained that under the relevant statutes, an individual’s “total
number of OWI offenses is determined by counting not only OWI convictions but
also ‘suspensions or revocations’ of a person’s driving privileges resulting from a
‘refusal to submit to chemical testing,’ provided the refusal and the conviction do
not ‘aris[e] out of the same incident or occurrence.’” Id. (alteration in original)
(citations omitted). “Thus, a prior revocation that is not tied to an OWI conviction
nevertheless threatens to increase the criminal penalties that may be imposed for a
subsequent OWI conviction.” Id.

¶23 The Forrett court noted that “[t]he OWI statutes treat refusing any
type of chemical test the same, but the U.S. Supreme Court [in Birchfield] has
drawn a key constitutional distinction between a warrantless test of a person’s
breath and a warrantless test of her blood.” Id., ¶8. Namely, under Birchfield, “a
warrantless breath test is permissible as a reasonable search incident to an arrest
but a warrantless blood draw is not.” Forrett, 401 Wis. 2d 678, ¶8. Thus,
according to the Forrett court, “for blood draws, the police must get a warrant,
and when they do not have one, ‘a person has a constitutional right to refuse’ the
request.” Id. (quoting State v. Prado, 2021 WI 64, ¶47, 397 Wis. 2d 719, 960
N.W.2d 869, and citing Birchfield, 579 U.S. at 474-75). Consequently, the

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Forrett court explained that a state cannot threaten or impose criminal penalties
based on an individual’s refusal of a warrantless blood draw because “a [s]tate
may not impose a penalty upon those who exercise a right guaranteed by the
Constitution.” Id. (alteration in original) (quoting Harman v. Forssenius, 380
U.S. 528, 540 (1965)).

¶24 The Forrett court further stated that “[s]uch unconstitutional
criminal penalties can take several forms.” Id., ¶9. “It could be that a person is
criminally charged specifically for refusing a warrantless blood draw. Or, as was
the case in Dalton, a person could be subjected to a longer sentence ‘for the sole
reason that he refused to submit to a [warrantless] blood test.’” Id. (alteration in
original) (citations omitted). The Forrett court observed that “[t]hese two
examples are illustrative but not exhaustive: No matter the form the criminal
penalty takes, the State cannot impose such a penalty on a person because she
exercised her Fourth Amendment right.” Id.

¶25 The Forrett court then concluded that, under Birchfield and Dalton,
it is unconstitutional “to increase the criminal penalty for a separate, subsequent
OWI because, in a prior instance, the driver refused a warrantless blood draw.”
Forrett, 401 Wis. 2d 678, ¶10. The court reasoned that neither Birchfield nor
Dalton “limited its holding to refusals related to the instant OWI charge,” but,
instead, “[b]oth cases rested on the idea that the state cannot criminalize the
exercise of a constitutional right, and we see no reason why that rationale does not
apply equally when the criminal penalty is imposed in a later case.” Forrett, 401
Wis. 2d 678, ¶11. Based on Birchfield and Dalton, the Forrett court concluded
that “it is unconstitutional in all circumstances to threaten criminal penalties for
refusing to submit to a warrantless blood draw.” Forrett, 401 Wis. 2d 678, ¶11.
The court expressly noted, however, that “[t]here is no constitutional

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No. 2024AP1012-CR

issue … when a state imposes only ‘civil penalties,’ such as revoking a person’s
operating privileges, for refusing a warrantless blood draw.” Id., ¶8 n.5 (citing
Birchfield, 579 U.S. at 476-77).

IV. Sparby-Duncan’s As-Applied Challenge

¶26 Based on Birchfield, Dalton, and Forrett, Sparby-Duncan argues
that the PAC and IID charges in this case “are unconstitutional as applied to him
because they rest on his prior refusal to submit to a warrantless blood draw in
2008.” He contends that he “would not face either of these charges today but for
his prior exercise of a constitutionally protected right” to refuse a warrantless
blood draw. Citing Forrett, 401 Wis. 2d 678, ¶¶9-11, he asserts that a defendant
“may not be penalized for exercising a constitutionally-protected right regardless
of the form the criminal penalty takes and regardless of whether the penalty is only
imposed in a separate, subsequent case.” Accordingly, Sparby-Duncan claims that
it is “impermissible” for the State to “threaten [him] with criminal penalties in the
instant case because those penalties are available solely as a result of his prior
exercise of his right to refuse a warrantless blood draw.”

¶27 In response, the State does not dispute that the IID order against
Sparby-Duncan could not have been imposed in the 2013 case absent his 2008
refusal. The State also does not dispute that, absent the IID order, Sparby-Duncan
would not be subject to a PAC of 0.02. The State argues, however, that the IID
and PAC charges do not threaten Sparby-Duncan with criminal penalties based on
the 2008 refusal. Instead, the State argues that the charges seek to penalize
Sparby-Duncan’s violations of civil consequences that were lawfully imposed as a
result of that refusal.

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¶28 We agree with the State’s analysis. Under Birchfield, it is clear that
the government may impose civil penalties on an individual for his or her refusal
of a warrantless blood draw, and the threat of such civil penalties does not make
the warrantless blood draw an unreasonable search for purposes of the Fourth
Amendment. Birchfield, 579 U.S. at 476-77. Our supreme court recognized as
much in Forrett. See Forrett, 401 Wis. 2d 678, ¶8 n.5. And that is precisely what
occurred here. Namely, as a result of Sparby-Duncan’s 2008 refusal, the circuit
court in his 2013 RCS case ordered him to install an IID in his vehicle, and as a
result of that IID order, Sparby-Duncan is subject to a PAC of 0.02. The current
charges against Sparby-Duncan threaten him with criminal penalties for violating
the IID order and driving with a PAC over 0.02, not for his 2008 refusal. Nothing
in Birchfield, Dalton, or Forrett prohibits the government from imposing criminal
penalties on an individual for his or her violation of civil consequences that were
imposed as a result of a refusal to submit to a warrantless blood draw.

¶29 Sparby-Duncan emphasizes that he would not be subject to an IID
order or a 0.02 PAC but for his 2008 refusal. Be that as it may, the State could not
have charged Sparby-Duncan with the IID and PAC counts in this case but for his
choices—made long after the refusal—to forgo installing the IID and to drive with
a blood alcohol concentration above 0.02. Again, we agree with the State that the
current charges seek to impose criminal penalties for that later conduct, not for
Sparby-Duncan’s years-earlier refusal. In other words, while Sparby-Duncan
contends that the current charges are a direct result of his 2008 refusal, we instead
conclude that the charges are sufficiently attenuated from the refusal such that they
do not pose any constitutional issue under Birchfield, Dalton, and Forrett.

¶30 In arguing to the contrary, Sparby-Duncan notes that the defendant
in Forrett made a choice to operate a motor vehicle while intoxicated long after

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No. 2024AP1012-CR

the refusal at issue in that case, but the Wisconsin Supreme Court nevertheless
concluded that the refusal could not be used to increase the criminal penalty for
the defendant’s subsequent OWI offense. In particular, the Forrett court rejected
the State’s argument that the graduated-penalty scheme was constitutional because
it “impose[d] no direct criminal punishment on the exercise of a constitutional
right; it only consider[ed] that conduct for the purpose of increasing the
punishment for a subsequent crime.” See Forrett, 401 Wis. 2d 678, ¶¶15-16. The
court reasoned that “a person has a constitutional right to refuse a warrantless
blood draw, so that refusal cannot be treated as an offense for the purposes of
increasing the criminal penalty for a subsequent offense.” Id., ¶16.

¶31 Here, however, the State is not seeking to treat Sparby-Duncan’s
2008 refusal as an offense for purposes of increasing the criminal penalty for a
subsequent offense. The State is instead seeking to impose criminal penalties on
Sparby-Duncan for his violation of the IID order—a civil consequence of his
refusal—and his operation of a vehicle with a PAC. Forrett did not involve an
attempt to impose criminal penalties based on a defendant’s violation of civil
consequences of a refusal, and nothing in Forrett expressly prohibits the State
from imposing criminal penalties under those circumstances.

¶32 Sparby-Duncan also emphasizes the language in Forrett stating that
“it is unconstitutional in all circumstances to threaten criminal penalties for
refusing to submit to a warrantless blood draw.” Id., ¶11 (emphasis added). In
addition, he notes that while the Forrett court listed two impermissible criminal
penalties for refusing to submit to a warrantless blood draw—i.e., a standalone
criminal charge for a refusal or an increased sentence for another charge based
solely on the refusal—the court expressly stated that those two examples were
“illustrative but not exhaustive” and that the State cannot impose criminal

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No. 2024AP1012-CR

penalties for the refusal of a warrantless blood draw “[n]o matter the form the
criminal penalty takes.” Id., ¶9 (emphasis added). Thus, according to
Sparby-Duncan, it is immaterial that the criminal penalties at issue in this case do
not take the same form as those discussed in Forrett.

¶33 This argument, however, presupposes that the IID and PAC charges
in this case seek to impose criminal penalties on Sparby-Duncan for his 2008
refusal. As we have already explained, the charges here instead seek to penalize
Sparby-Duncan’s subsequent acts of failing to install the IID that was ordered as a
result of his 2008 refusal and driving with a PAC.

¶34 For all of these reasons, we reject Sparby-Duncan’s argument that
the IID and PAC statutes are unconstitutional as applied to him under the
circumstances of this case. We therefore affirm the circuit court’s order denying
Sparby-Duncan’s motion to dismiss the IID and PAC charges.

By the Court.—Order affirmed.

Recommended for publication in the official reports.

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