On Point: Refusal Hearing

State v. Victoria M. Milewski, 2013AP1323, District 4, 11/27/13; court of appeals decision (1-judge; ineligible for publication); case activity

After being arrested for OWI Milewski refused a blood test, saying her Christian Scientist beliefs prohibited her from allowing a needle to be inserted in her body; she offered to provide a urine sample instead. (¶¶2-3). At her refusal hearing she asserted her refusal to submit to the blood test for religious reasons was a reasonable objection under State v.

State v. Sidney H. Sawicky, 2013AP1335, District 3, 11/19/13; court of appeals decision (1-judge; ineligible for publication); case activity

Village of Elm Grove v. Brefka, 2013 WI 54, 348 Wis. 2d 282, 832 N.W.2d 121, held that the 10-day limit for requesting a refusal hearing set out in § 343.305(9)(a)4. and (10)(a) is mandatory and cannot be extended, even due to excusable neglect.

State v. Randel R. Clark, 2012AP2661, District 4, 7/25/13; court of appeals decision (1-judge; ineligible for publication); case activity

The record supports the circuit court’s conclusion that the police officer used reasonable means to convey the necessary implied consent warnings to Clark under the standard in State v. Piddington, 2001 WI 24, ¶24, 241 Wis. 2d 754, 623 N.W.2d 528, despite Clark’s claims he couldn’t hear the officer,

Village of Elm Grove v. Richard K. Brefka, 2013 WI 54, affirming unpublished court of appeals opinion; Justice Bradley, for a unanimous court; case activity

The 10-day deadline for filing a request for a refusal hearing, §§ 343.305(9)(a)4. and (10)(a), is mandatory, and may not be extended based on excusable neglect.

Brefka was issued a Notice of Intent to Revoke Operating Privileges on December 12 after he refused a chemical test.

State of Wisconsin/City of Sturgeon Bay v. Bradley H. Hart, 2013AP85, District 3, 6/18/13; court of appeals decision (1-judge; ineligible for publication); case activity

The circuit court’s finding that Hart refused a chemical is not clearly erroneous, despite Hart’s being from Illinois, where the law is different, and his acquiescence, without physical resistance, to the blood draw done after his initial refusal. He was advised of Wisconsin law before he was asked to submit to a test,

Review of unpublished court of appeals decision; case activity

Issue (composed by On Point)

Does a circuit court have discretion to dismiss a refusal proceeding after the prosecution of the underlying OWI charge results in an acquittal?

This case is of obvious interest to OWI practitioners, even if its facts are unusual and, thus, not likely to arise very often. As we noted in our post about the court of appeals decision,

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 .