Wisconsin Refusal Law Douglas Hoffer

Assistant City Attorney City of Eau Claire douglas.hoffer@eauclairewi.gov

douglashoffer@gmail.com 715-839-6006

10/10/2014

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WISCONSIN REFUSAL LAW

IMPLIED CONSENT LAW HISTORY/BACKGROUND

Wisconsin’s first drunk driving laws were passed in 1911

Chemical testing statutory language was first passed in 1949

o .05 or less was prima facie evidence of no impairment

o .05 to .15 was admissible as evidence of intoxication, but no prima facie effect.

o .15 was prima facie evidence of intoxication, but was not sufficient for finding the

person guilty of OWI without corroborating physical evidence.

-BUT- people refused to take the test and that made it harder to prove OWI cases.

Wisconsin’s first implied consent law passed in 1969

o Refusal resulted in 60 day license suspension.

Various legislative changes to implied consent law since – some may impact applicability

of particular cases

All 50 states have implied consent laws.

Many countries criminalize refusals

Most common approach almost everywhere is to penalize refusal worse than BAC result

at the highest level.

I. Implied consent policy considerations

Wis. Stat. § 343.305(2):

(2) Implied consent. Any person who is on duty time with respect

to a commercial motor vehicle or drives or operates a motor

vehicle upon the public highways of this state, or in those areas

enumerated in s. 346.61, is deemed to have given consent to one or

more tests of his or her breath, blood or urine, for the purpose of

determining the presence or quantity in his or her blood or breath,

of alcohol, controlled substances, controlled substance analogs or

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other drugs, or any combination of alcohol, controlled substances,

controlled substance analogs and other drugs, when requested to do

so by a law enforcement officer under sub. (3)(a) or (am) or when

required to do so under sub. (3)(ar) or (b). Any such tests shall be

administered upon the request of a law enforcement officer. The

law enforcement agency by which the officer is employed shall be

prepared to administer, either at its agency or any other agency or

facility, 2 of the 3 tests under sub. (3)(a), (am), or (ar), and may

designate which of the tests shall be administered first.

Village of Elm Grove v. Brefka

2013 WI 54

348 Wis. 2d 282

State v. Neitzel “[T]he clear policy of the [implied consent] statute is to facilitate

95 Wis. 2d 191, 193 the identification of drunken drivers and their removal from the

(1980) highways”

State v. Brooks Purpose of refusal law is “to penalize drunk drivers by finding

113 Wis. 2d 347, 355 them guilty.”

(1983)

State v. Nordness Through the implied consent law the state endeavors to quash the

128 Wis. 2d 15 effects of drunk driving.

(1986)

Village of Elm Grove v. Brefka

2013 WI 54 The purpose of implied consent statute is “to get drunk

348 Wis. 2d 282 drivers off the road as expeditiously as possible and with as little

possible disruption of the court’s calendar.”

State v. Reitter Wisconsin legislature enacted implied consent statute to combat

227 Wis. 2d 213, 224-25 drunk driving, not to enhance the rights of alleged drunk drivers

(1999) and given legislature’s intent, courts should construe the implied

consent law liberally.

Scales v. State Implied consent law must be liberally construed to effectuate its

64 Wis. 2d 485 (1974) policies

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II. Defendant is arrested for impaired driving and refuses to take test.

Wis. Stat. 343.305(9)(a) Police officer shall immediately prepare “Notice of Intent

to Revoke” and give/send a copy to:

a. The defendant

b. The Wisconsin Dept. of Transportation

c. Municipal or Circuit Court that will hear matter

d. Prosecutor for Municipal Court or Circuit Court that will

prosecute matter.

State v. Moline Officer’s failure to “immediately” serve Notice of Intent to

170 Wis. 2d 531 Revoke does not deprive Court of jurisdiction to hold

(Ct. App. 1992) refusal hearing.

III. Rules of Civil Procedure apply to refusal hearings except where different procedure

is prescribed by statute or rule.

Wis. Stat. 801.01 Chapters 801 to 847 govern procedure and practice

State v. Schoepp in special proceedings (like refusal hearings) except

204 Wis. 2d 266 where different procedure is prescribed by statute or

(Ct. App. 1996) rule.

Note: How to calculate ten days for purposes of the refusal statute is an unsettled

question. Possible issue exists regarding whether “10 day” language found

in § 343.305 prescribes a different procedure.

Wis. Stat. 801.15 If time period is less than 11 days, Saturdays, Sundays and

holidays shall be excluded in the computation.

State v. Nordness Wis. Stat. 343.305(2) declares legislative policy; remainder of

128 Wis. 2d 15, 28 § 343.305 outlines procedures for implementing this policy.

(1986)

State v. Moline

170 Wis. 2d 531, 534 Request for refusal hearing received by Court on

(Ct. App. 1992) July 11th

for Notice of Intent to Revoke served on

July 1st was received on “the last day of the ten-day

notice period…”

State v. Carlson

2002 WI App 44 Parties (apparently) agreed not to count weekends

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250 Wis. 2d 562 or holidays towards 10 day deadline.

No discovery except in limited circumstances with leave of the court.

Neither party is entitled to pretrial discovery in any refusal hearing, except that, if the defendant

moves within 30 days after the initial appearance and shows cause the Court may allow limited

discovery. Wis. Stat. § 343.305(9)(a).

IV. Court authority to hold refusal hearing or dismiss refusal depends on timely refusal

hearing request made in writing.

Wis. Stat. § 343.305(9) Request must be in writing.

Village of Elm Grove v. Brefka

2013 WI 54 Courts lack competency to hear defendant’s request to

348 Wis. 2d 282 extend 10 day time limit. (Revocation is automatic if request is not

received within 10 days).

Wis. Stat. 343.305(10) Failure to timely request refusal hearing results in the

following consequences:

1. Revocation of operating privileges (length determined by

defendant’s offender status – see Wis. Stat. § 343.307(2)) –

first offense is one year.

a. Revocation period reduced by any period of revocation or

suspension previously served for underlying OWI or

underlying underage absolute sobriety.

2. 30 day wait for occupational license (if otherwise qualified for

occupational license)

3. Ignition interlock order

4. $50 ignition interlock surcharge

5. Assessment (if applicable)

Wis. Stat. § 343.350(10)(a) Revocation commences 30 days after refusal date if

defendant fails to timely request refusal hearing.

In re Refusal of Bentdahl The plain language of the statute and recent interpretation of

2013 WI 106 statutory provisions in Brefka demonstrates circuit courts lack

351 Wis. 2d 739 discretion to dismiss a refusal charge if the defendant does not

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(See footnote 10) request a hearing within 10 days.

In re Refusal of Bentdahl Courts lack authority to dismiss refusals (1) if defendant pleads

2013 WI 106 not guilty; or (2) if defendant fails to timely request refusal

351 Wis. 2d 739 hearing.

-BUT-

“We do recognize, however, that factual circumstances distinct

from those at issue today may arise, which make a request for a

refusal hearing within the ten-day limit or entry of plea of guilty

impossible. We do not decide what the discretionary authority of

the circuit court would be under such circumstances.”

V. Notice of Intent to Revoke issued by police officer is adequate process to provide

refusal hearing court with jurisdiction.

Wis. Stat. § 343.305(9)(b) Use of Notice of Intent to Revoke by law enforcement

officer is adequate process to give the appropriate court

jurisdiction over the person.

State v. Schoepp Notice of Intent to Revoke is akin to Summons and

204 Wis. 2d at 271 Complaint requirements of Chapters 801 and 802.

(Ct. App. 1996)

In re Gautschi Technical defect in Notice of Intent to Revoke is not

2000 WI App 274 sufficient to deprive refusal hearing of personal jurisdiction

240 Wis. 2d 83

State v. Carlson Improperly revoking operating privileges for 19 days prior to

2002 WI App 44 holding refusal hearing was technical error.

250 Wis. 2d 562

Note: Are there other “threshold” issues that refusal hearings are permitted to consider before

examining statutorily limited substantive issues?

VI. Refusal hearing issues are expressly limited by statute.

Wis. Stat.§ 343.305(9) Refusal hearing issues are strictly limited to:

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State v. Nordness 1. Did the Officer have probable cause and did the officer

128 Wis. 2d at 19 (1986) lawfully arrest the defendant?

In re Refusal of Anagnos 2. Did the police officer properly convey information

2012 WI 64 found in Wis. Stat. § 343.305(4) – (generally contained in

341 Wis. 2d 576 Informing the Accused form).

3. Did the defendant refuse the test?

4. If defendant refused test, does he or she have affirmative

defense?

State v. Nordness There is no “actual driver” threshold issue. Refusal hearing issues

128 Wis. 2d at 27, 34 (1986) are limited to the four issues listed in the statute. Restricting scope

of refusal hearing does not deprive defendant of due process.

Procedural due process requires that defendants be given notice

and an opportunity to be heard at a meaningful time and in a

meaningful manner.

In re Refusal of Anagnos The issues that can be raised at a refusal hearing are strictly limited

2012 WI 64 ¶¶ 25, 33 to the issues enumerated in the refusal hearing statute.

341 Wis. 2d 576

State v. Darling Trial courts power to regulate motor vehicle operating privileges is

143 Wis. 2d 839 not inherent, but instead is confined to those powers vested by the

(Ct. App. 1989) legislature. (This case is not a refusal case. However, it stands for

the important proposition that court power is limited in matters

involving the regulation of motor vehicle operating privileges to

powers explicitly vested by statute). For additional guidance on

inherent authority see City of Sun Prairie v. Davis, 226 Wis. 2d

738 (1999).

City of Sun Prairie v. Davis

226 Wis. 2d 738 (1999) There are three areas where courts can exercise inherent authority:

1) Court’s internal operations; 2) the regulation of members of the

bench and bar; and 3) ensuring that the court functions efficiently

and effectively to provide the fair administration of justice.

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Issue No. 1 - Probable Cause and lawful arrest

In re Refusal of Anagnos Defendant is not “lawfully” arrested if police did not have

2012 WI 64 reasonable suspicion or probable cause to stop defendant.

341 Wis. 2d 576

State v. Nordness “We view the revocation hearing as a determination merely of an

128 Wis. 2d 15 officer’s probable cause, not as a forum to weigh the state’s and

the defendant’s evidence…The trial court, in terms of the probable

cause inquiry, simply must ascertain the plausibility of a police

officer’s account.”

State v. Wille Prosecution’s (probable cause) burden of persuasion is greater at

185 Wis. 2d 673 suppression hearing than at refusal hearing.

(Ct. App. 1994)

State v. Babbitt Motorist’s refusal to perform field sobriety test may be used as

188 Wis. 2d 349 evidence of probable cause to arrest for driving under the

(Ct. App. 1994) influence

County of Dane v. Sharpee Preliminary Breath Test (PBT) results may be considered as part

154 Wis. 2d 515, 520 of totality of circumstances upon which police officer’s

(Ct. App. 1990) probable cause determination rests.

State v. Wille An officer’s belief may be partially predicated on hearsay

185 Wis. 2d 673 information, and the officer may rely on the collective knowledge

(Ct. App. 1994) of the officer’s entire department.

Issue No. 2 – Did the officer properly read the language found in Wis. Stat. 343.305(4)

(Informing the Accused form) to the defendant?

City of Mequon v. Hess Wis. Stat. § 343.305 does not require police officers to inform

158 Wis. 2d 500 defendants of all possible OWI penalties; only the statutorily

(Ct. App. 1990) prescribed penalties found in § 343.305.

In re Smith 2 different types of cases involving relay of required information

2008 WI 23 with two different types of analysis:

308 Wis. 2d 65

1. Failure to provide statutorily required information to the

Defendant.

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a. Courts determine whether there was “substantial”

compliance

2. Law enforcement officer provides all statutorily required

information but then provides further inaccurate information in

excess of his duty.

a. Courts apply Quelle test.

Note: In re Smith abrogated Quelle, below.

County of Ozaukee v.

Quelle, 198 Wis. 2d 269 Under the Quelle test the defendant must satisfy the court of all the

(Ct. App. 1995) following:

1. The officer either failed to meet or exceeded the duty to inform

the accused person in compliance with the requirements of the

implied consent statute.

2. The lack or oversupply of information was misleading.

3. The failure to properly inform the driver affected his or her

ability to make the choice about chemical testing.

State v. Piddington A court need not inquire into whether the information was properly

241 Wis. 2d 754 (2000) perceived or understood by the arrested person.

Issue No. 3 – Did the defendant refuse the test?

State v. Neitzel The obligation of the accused is to take the test promptly or to

95 Wis. 2d 191 refuse it promptly.

(1980)

State v. Rydeski Defendant must promptly submit or refuse to submit to the

214 Wis. 2d 101 requested test. There is no right to recant a refusal. A defendant’s

(Ct. App. 1997) offer to later take the test does not undo the refusal.

343.305(6)(c)3 Failure to provide 2 separate, adequate breath samples in proper

State v. Grade sequence constitutes refusal.

165 Wis. 2d 143

(Ct. App. 1991)

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Village of Elkhart Lake v. Verbal refusal is not necessary. Conduct of defendant may

Borzyskowski constitute refusal.

123 Wis. 2d 185

(Ct. App. 1985)

State v. Neitzel There is no right to consult with an attorney before deciding

95 Wis. 2d 191 whether to take test. Very limited exception to this rule exists if

State v. Reitter police have led defendant to believe he will get opportunity to

227 Wis. 2d 213 consult with an attorney prior to taking the test.

State v. Grogan Miranda warnings do not interfere with defendant’s ability to make

2014 WI App 90 an informed choice under the implied consent law.

(unpublished)

State v. Spring Implied consent revocation upheld when defendant refused to

204 Wis. 2d 343 to sign hospital consent form memorializing: 1) hospital would

(Ct. App. 1996) draw blood by order of officer; 2) blood would be drawn only by

medical personnel; 3) medical personnel were immune from civil

or criminal liability except for civil liability for negligence; 4)

defendant consented to the test; 5) defendant understood test

sample would be submitted for analysis. Note: Court emphasized

its decision would not apply in a situation in which a form recites

complete waiver of hospital liability.

Issue No. 4 – Does defendant have affirmative defense to refusal finding?

Wis. Stat. 343.305(9)(a)5c Defendant must show by preponderance of the evidence that

refusal was due to physical inability to submit to the test unrelated

to the use of alcohol, controlled substances, controlled substance

analogs or other drugs.

In re Refusal of Bardwell Defendant’s lack of confidence in the primary test is not a valid

83 Wis. 2d 891, 900-01 defense.

(1978)

VII. Refusal hearing burden of persuasion is “plausibility” not a weighing of evidence in

measuring credibility.

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State v. Wille Burden of persuasion is plausibility and not a weighing of evidence

185 Wis. 2d 673, 681 in measuring credibility. “Indeed, the court need not even believe

(Ct. App. 1994) the officer’s account. It need only be persuaded that the state’s

account is plausible.”

In re Refusal of Anagnos Prosecution’s burden of proof at a refusal hearing is “substantially

2012 WI 64 less than at a suppression hearing.”

341 Wis. 2d 576, 603-06

(Ziegler, J., concurring)

VIII. Refusal charge is separate and distinct from the underlying OWI/PAC/OCS

charge(s).

In re Refusal of Anagnos A refusal charge is separate and distinct from OWI/PAC/OCS

2012 WI 64 charge.

¶ 67

State v. Brooks Courts have discretion to dismiss refusal with guilty plea to

133 Wis. 2d 347 underlying OWI charge.

In re Refusal of Bentdahl The plain language of the statute and recent interpretation of

2013 WI 106 statutory provisions in Brefka demonstrates circuit courts lack

351 Wis. 2d 739 discretion to dismiss a refusal charge if the defendant does not

(See footnote 10) request a hearing within 10 days.

In re Refusal of Bentdahl Courts lack authority to dismiss refusals (1) if defendant pleads

2013 WI 106 not guilty; or (2) if defendant fails to timely request refusal

351 Wis. 2d 739 hearing.

-BUT-

“We do recognize, however, that factual circumstances distinct

from those at issue today may arise, which make a request for a

refusal hearing within the ten-day limit or entry of plea of guilty

impossible. We do not decide what the discretionary authority of

the circuit court would be under such circumstances.”

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IX. Implications of finding unlawful refusal

Wis. Stat. § 343.305(9)(d) At conclusion of refusal hearing, or within five days thereafter, the

Court must render a decision in the implied consent case.

Village of Elkhart Lake v. Failure to render a timely decision does not result in divestiture of

Borzyskowski court’s jurisdiction.

123 Wis. 2d at 192-94

(Ct. App. 1985)

Wis. Stat. 343.305(10) Finding unlawful refusal results in the following consequences:

1. Revocation of operating privileges (length determined

by defendant’s offender status – see Wis. Stat. §

343.307(2)) – first offense is one year.

a. Revocation period reduced by any period of

revocation or suspension previously served for

underlying OWI or underage absolute sobriety.

2. 30 day wait for occupational license (if otherwise

qualified for occupational license)

3. Ignition interlock order

4. $50 ignition interlock surcharge

5. Assessment (if applicable)

X. Commercial Vehicles

Wis. Stat. § 343.315(2)(a)5 First offense implied consent violation results in one year

disqualification from operating a commercial motor vehicle.

Wis. Stat. § 343.315(2)(b) Implied consent violation involving transport of placarded

hazardous materials results in a three year disqualification from

operating a commercial motor vehicle.

Wis. Stat. § 343.315(c) Second offense refusal (first offense can be refusal or other

prohibited violations) results in lifetime disqualification from

operating commercial motor vehicle.

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XI. Absolute Sobriety Refusals

Wis. Stat. § 346.63(2m) Person under 21 arrested for absolute sobriety who refuses to

submit to testing may be prosecuted for separate refusal violation.

Wis. Stat. § 346.63(10)(em) Penalty for refusal committed by absolute sobriety defendant is six

month license revocation. If passenger under 16 was in the vehicle

at the time of the offense, the revocation period is 12 months.

Defendant eligible for occupational license after 15 days.

XII. Admissibility of refusal at underlying OWI trial

State v. Zielke Refusal is admissible as evidence of consciousness of guilt in the

137 Wis. 2d 39, 49-50 underlying OWI trial.

(1987)

State v. Bolstad

124 Wis. 2d 576, 585

(1985)

State v. Zielke Refusal evidence may only be received if refusal was in response

137 Wis. 2d 39 to officer’s proper request under the implied consent law.

(1987)

State v. Algaier

165 Wis. 2d 515

(Ct. App. 1991)

State v. Donner Prosecutions failure to pursue refusal hearing does not bar

192 Wis. 2d 305 prosecution from using refusal evidence.

(Ct. App. 1995)

XIII. Implied Consent laws are constitutional.

Argument the defense bar has raised in wake of McNeely

Implied consent laws are unconstitutional as applied because they punish citizens for exercising

their constitutional right to refuse a search not authorized by a warrant.

Note: It is hard to reconcile the argument raised by the defense bar with language found in the

McNeely opinion:

Justice Sotomayor noted that all 50 states have implied consent laws requiring motorists, as a

condition of operating a motor vehicle within the state, to consent to testing if arrested for drunk

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driving offense. Further, Justice Sotomayor concluded that state implied consent laws are one of

many tools states can use to enforce their drunk driving laws without undertaking warrantless,

nonconsensual blood draws:

As an initial matter, States have a broad range of legal tools to enforce their drunk-

driving laws and to secure BAC evidence without undertaking warrantless nonconsensual

blood draws. For example, all 50 States have adopted implied consent laws that require

motorists, as a condition of operating a motor vehicle within the State, to consent to BAC

testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense.

See NHTSA Review 173; supra, at 1556 (describing Missouri's implied consent law).

Such laws impose significant consequences when a motorist withdraws consent; typically

the motorist's driver's license is immediately suspended or revoked, and most States allow

the motorist's refusal to take a BAC test to be used as evidence against him in a

subsequent criminal prosecution.

Missouri v. McNeely, 133 S. Ct. 1552, 1566 (2013)

State v. Padley Wisconsin’s implied consent law does not violate 4th

Amendment.

2014 WI App 65 Implied consent law authorizes police to require driver to choose

354 Wis. 2d 545 between giving actual consent to testing or withdrawing implied

consent and suffering implied consent law sanctions.