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State v. Drews8/9/2000
APPEAL from an order of the circuit court for Sheboygan County: L. EDWARD STENGEL, Judge.
Affirmed.
. Barry R. Drews asserts that his aversion to needles obliged the arresting officer to offer a breath test rather than a blood test to determine his blood alcohol concentration. The implied consent law unequivocally allows the arresting agency to designate which test shall be administered first and unquestionably operates to dispel any notion that the driver may choose which test he or she will take. Therefore, we affirm.
. A Sheboygan county sheriff's deputy stopped Drews for suspected drunk driving . After Drews failed field sobriety tests, he was issued a citation for his second offense operating while intoxicated in violation of Wis. Stat. § 346.63(1)(a) (1997-98). The arresting officer placed Drews in the rear of his squad car and drove to Sheboygan Memorial Medical Center to have a blood sample taken. At the hospital, Drews refused to submit to a blood test, and the arresting officer served Drews with a "Notice of Intent to Revoke Operating Privilege." Drews filed a timely request for a refusal hearing.
. The trial court found Drews's refusal to be unreasonable.
I think in general, if not specific, statements, Mr. Drews did indicate that he had an aversion to needles and, based upon that, preferred to have the breath test as the primary test. I'm also satisfied that the statute does not allow him to make a choice. I do not believe in light of all the circumstances presented, the mere statement in some fashion he had an aversion to needles is sufficient to make the Department's actions in requesting a blood draw to be unreasonable which would further invalidate his actions.
. Drews appeals. He insists that the arresting officer's persistence in demanding that he submit to a blood draw was violative of the Fourth Amendment because he had agreed to submit to a readily available breath test. Relying upon Schmerber v. California, 384 U.S. 757 (1966), and Zielke v. State, 137 Wis. 2d 39, 403 N.W.2d 427 (1987), Drews suggests that "reasonable requests by defendants for alternate chemical tests should be honored" or there could be a constitutional violation.
. Whether a refusal to take a chemical test to determine blood alcohol concentration in a driver's body is reasonable is a question of law which we review de novo. See State v. Ludwigson, 212 Wis. 2d 871, 875, 569 N.W.2d 762 (Ct. App. 1997). Additionally, the interpretation of Wis. Stat. § 343.305 and its application to undisputed facts present questions of law that we review de novo. See State v. Schirmang, 210 Wis. 2d 324, 329, 565 N.W.2d 225 (Ct. App. 1997). In conducting this de novo review, we will accept the historical facts found by the trial court unless they are clearly erroneous. See Wis. Stat. § 805.17(2).
. Sheboygan County Sheriff's Deputy Tom Antonie was the only witness at the refusal hearing. Antonie placed Drews under arrest after he failed several field sobriety tests and took him to Sheboygan Memorial Medical Center for a blood draw. The deputy testified that the blood test was his department's primary test and the urine test was the alternate test because of "problems with the Intoxilyzer." According to Antonie, en route to the hospital Drews made mention that he did not like needles and would rather take the breath test. The deputy read the "Informing the Accused" form to Drews in the hospital parking lot and escorted him into the hospital. Before the lab technician arrived to take a blood sample, the deputy completed the necessary paperwork and gave copies to Drews. As Drews was reading the "Informing the Accused" form, he stated he
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