On Point: 4. Procedure

State v. Brandon H. Bentdahl, 2012AP1426, District 4, 12/6/12; court of appeals decision (1-judge, ineligible for publication), petition for review granted 6/13/13; reversed, 2013 WI 106; case activity

A circuit court has discretionary authority to dismiss a refusal charge, § 343.305, after the defendant has pleaded guilty to the underlying OWI, State v. Brooks,

on review of unpublished decision; case activity

Issue (composed by On Point) 

Whether the municipal court lacks competence to extend the 10-day time deadline for requesting a refusal hearing.

Brefka filed a request for refusal hearing outside the 10-day time limit in § 343.305(9)(a)4. Does a court possess competence to extend that deadline? No dice, according to the court of appeals: “Section 343.305(9)(a)4. specifically mandates that if the request for a hearing is not received within the ten-day period, 

State v. William R. Hartman, 2011AP622, District 4, 9/20/12

court of appeals decision (1-judge, ineligible for publication); case activity

OWI – Refusal Hearing – Raising Challenge to Lawfulness of Stop

Refusal hearing supports litigation of lawfulness of stop; State v. Anagnos, 2012 WI 64, ¶42, 341 Wis. 2d 576, 815 N.W.2d 675, followed:

 ¶14      Accordingly, we reject the State’s contention that Hartman improperly raised the issue of reasonable suspicion at the refusal hearing.   

State v. Dimitrius Anagnos, 2012 WI 64, reversing 2011 WI App 118; case activity

OWI – Refusal Hearing – Authority to Litigate Constitutionality of Traffic Stop 

Constitutionality of the traffic stop  may be raised as a defense at a refusal hearing, § 343.305(9)(a)5.a.

¶29  In this case, the relevant portion of the statute is found in sub. (9)(a)5.a.  That subsection permits circuit courts to consider “[w]hether the officer had probable cause to believe the person was driving or operating a motor vehicle while under the influence of alcohol . 

Village of Elm Grove v. Richard K. Brefka, 2011AP2888, District 1/2, 6/19/12, WSC review granted 11/14/12

court of appeals decision (1-judge, ineligible for publication), supreme court review granted 11/14/12; case activity

The municipal court lacks competence to extend the 10-day time deadline for requesting a refusal hearings, given the clear language of §§ 343.305(9)(a)4. and (10)(a). Village of Butler v.

on review of published opinion; for Anagnos: Barry S. Cohen; case activity; prior post

Traffic Stop – Reasonable Suspicion – OWI Refusal Hearing Challenge to Arrest

Issues (composed by On Point): 

1. Whether the officer could lawfully stop Anagnos’ vehicle for failing to use a turn signal where neither traffic nor pedestrians were present, § 346.34(1)(b).

2. Whether the officer had reasonable suspicion to stop Anagnos’

State v. Darren A. Kliss, 2007 WI App 13
For Kliss: Michael C. Witt

Issue/Holding:

¶7        … Because the implied consent law makes no provision for the right to counsel, an officer is correct to record a refusal if the arrestee insists on speaking to an attorney before answering.…¶8        … County of Ozaukee v. Quelle, 198 Wis. 2d 269, 276, 542 N.W.2d 196 (Ct.

State v. Darren A. Kliss, 2007 WI App 13
For Kliss: Michael C. Witt

Issue/Holding: Administering Miranda rights prior to the “Informing the Accused” caution applicable to OWI does not invalidate the latter (at least where the motorist is concurrently under arrest for a separate crime):

¶14      There is no dispute that Thomas read Kliss the Miranda warning prior to reading the Informing the Accused.

State v. Patrick J. Fahey, 2005 WI App 171

Issue: Whether requested alternative testing at agency expense is deemed a “request” within § 343.305(5)(a) where made after driver was released from custody, left police department, and then returned about 15 minutes later, ¶7.

Holding:

¶14      … The State, in keeping with the circuit court’s decision, argues that it is unreasonable to think that the legislature meant to hold open the time period for a request beyond when a suspect is released from custody.

State v. James A. Schmidt, 2004 WI App 235
For Schmidt: Daniel S. Diehn

Issue: Whether § 343.305(5)(a) requires that the driver request an additional test after the police have administered the primary test and, if not, whether Schmidt’s pre-blood draw request for a breathalyzer was properly rejected.

Holding:

¶11. Although Wis. Stat. § 343.305(4) and (5) use the term “alternative test,”