On Point blog, page 3 of 7
Driver’s failure to refuse or submit to a chemical breath test is an unlawful refusal
Washington County v. Kelly L. Springer, 2020AP491, 10/21/20, District 2 (1-judge opinion, ineligble for publication); case activity (including briefs)
After being stopped for a suspected OWI, Springer failed field sobriety tests and his preliminary breath test showed a .18% blood alcohol content. A sheriff read the Informing the Accused form and asked if he would submit to a chemical test of his breath. Springer did not answer even after being asked 6 to 7 times. Then he said: “I already gave you my test.” The sheriff took this to mean “no.” The circuit court held the refusal unlawful under §343.305(9)(a) of Wisconsin’s implied consent law , and the court of appeals affirmed.
Challenges to implied consent law and refusal go nowhere
Village of Lomira v. Phillip N. Benninghoff, 2020AP31, District 4, 10/15/20 (one-judge decision; ineligible for publication); case activity (including briefs)
Benninghoff tries to raise a bevy of challenges to the implied consent law and to the revocation of his driving privileges for refusing a blood draw. His challenges are forfeited because he failed to file a timely request for a refusal hearing and, in any event, the arguments aren’t suitably developed or are foreclosed by State v. Levanduski, 2020 WI App 53.
Error in the “Informing the Accused” form doesn’t help drivers accused of OWI
State v. Scott W. Heimbruch, 2020 WI App 68; case activity (including briefs)
When an officer arrests a driver either for OWI or for causing death or great bodily harm without suspicion of OWI and requests a chemical test, he must read the driver the legislatively prescribed “Informing the Accused” form. See §343.305(3) and (4). The form describes the potential penalties the driver faces for refusing the chemical test. In 2017, the Wisconsin Supreme Court declared that the form’s information for drivers accused of causing death or great bodily harm without suspicion OWI was inaccurate. See State v. Blackman, 2017 WI 77, ¶¶5, 38, 377 Wis. 2d 339, 898 N.W.2d 774. Unfortunately, the legislature has never bothered to change the form.
Court didn’t err in reopening evidence at refusal hearing
State v. Bartosz Mika, 2019AP1488, District 2, 2/19/20 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court appropriately exercised its discretion in continuing Mika’s refusal hearing so the state could call another witness, and the testimony of the additional witness established police had reasonable suspicion to stop Mika.
Second attempt to challenge 1995 license revocation fails, too
State v. Robert E. Hammersley, 2018AP1022, District 3, 7/30/19 (one-judge decision; ineligible for publication); case activity (including appellant’s brief)
Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), doesn’t provide a basis to void the revocation of Hammersley’s driver’s license back in 1995 for refusing a blood alcohol test after his OWI arrest.
Finding of improper refusal upheld
State v. Nathan Alan Bise, 2017AP1662, District 4, 1/24/19 (one-judge decision; ineligible for publication); case activity (including briefs)
Bise raises three challenges to the finding he improperly refused a breath test. The court of appeals rejects them all.
Premature revocation for refusal can’t be invalidated
City of Crandon v. Lynda Morris, 2017AP2266, District 3, 1/15/19 (one-judge decision; ineligible for publication); case activity (including brief of appellant; respondent didn’t file one….)
The circuit court improperly jumped the gun by ordering Morris’s driver’s license to be revoked for refusal before the 10-day deadline for her to request a refusal hearing. But she never asked for a refusal hearing, and once the deadline to do so passed the circuit court lost competency to undo the revocation—even though the associated OWI 3rd charges were ultimately thrown out after the evidence was suppressed.
Equivocating over whether to take a breath test, then agreeing to it, counts as a refusal
State v. Stuart W. Topping, 2018AP318, 2/6/18, District 4 (1-judge opinion, ineligible for publication); case activity (including brief)
You don’t see this very often. Topping, represented by counsel, filed an initial brief. The State never responded. That might have been cause for summary reversal. But here Topping’s challenge to the circuit court’s finding that he refused to submit to a breath test after his arrest for OWI failed even though it was unopposed
Cop didn’t mislead defendant about right to counsel before submitting to chemical test for alcohol
State v. Richard Rey Myers, 2017AP2499, District 4, 8/9/18 (one-judge decision; ineligible for publication); case activity (including briefs)
Myers argues, unsuccessfully, that his refusal to submit to a blood test for OWI can’t be found to be improper because it was based on misinformation from the officer about his right to counsel.
Wrong return address on notice of intent to revoke license doesn’t undo refusal revocation
County of Door v. Donald L. McPhail, 2017AP1079, 5/30/18, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)
When McPhail was arrested for first-offense OWI, he refused a blood test. The arresting officer gave him the notice of intent to withdraw his operating privilege, which told McPhail he had 10 days to request a hearing, and that he should send his request to 1201 S. Duluth Ave in Sturgeon Bay. But that’s the Sheriff’s department, not the clerk of courts, which is at 1205 (though the two are part of the same complex).