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State v. Jurkovic7/18/2000
Cornelia G. Clark Clerk, Court of Appeals of Wisconsin
APPEAL from an order of the circuit court for Milwaukee County: RUSSELL W. STAMPER, Judge. Affirmed.
. Daniel J. Jurkovic appeals from an order determining that he unlawfully refused to submit to a chemical test in violation of Wis. Stat. § 343.305 (1997-98). He claims that the trial court erred when it determined that his repeated request to speak with an attorney when asked whether he would consent to a blood test constituted a refusal. Because the circumstances presented in this case constitute a refusal, the trial court did not err in so concluding, and this court affirms.
I. BACKGROUND
. On June 8, 1999, Jurkovic was stopped and ultimately arrested for Operating a Motor Vehicle While Under the Influence of Alcohol (OWI). Following his arrest, City of West Allis Police Officer Robin Walsh transported Jurkovic to West Allis Memorial Hospital for a blood test. At approximately 1:50 a.m., Officer Walsh read Jurkovic the Informing the Accused Form.
. Following the reading of the form, Officer Walsh asked Jurkovic whether he would submit to a blood draw. Jurkovic's response was that he wanted a lawyer. Officer Walsh then advised Jurkovic that this was his fourth offense for OWI and "it was mandated by the State that we take his blood." Jurkovic responded that he wanted a lawyer. At that point, Officer Walsh told Jurkovic that she needed a yes or no answer. Jurkovic did not respond. Officer Walsh interpreted this to be a refusal to consent to the blood test.
. Officer Walsh then advised Jurkovic that because this was his fourth offense, they would have to take a blood sample against his will. Jurkovic indicated that he understood and submitted to the test. The test revealed that Jurkovic's blood alcohol count was .22.
. A refusal hearing was conducted in November 1999. The trial court determined that the "officer gave [Jurkovic] misinformation concerning the State's requiring him to submit to a blood test." The trial court based this ruling on the fact that there is no state law that requires a blood draw on a fourth offense OWI. Rather, the state statute requires a defendant to comply with the officer's request for a chemical test, see Wis. Stat. § 343.305(2), and provides the law enforcement agency with the discretion to designate which of the tests shall be administered first, see § 343.305(5). The West Allis Police Department's policy was to perform a blood test after a third offense OWI.
. Despite its determination that the officer provided Jurkovic with misinformation, the trial court found that Jurkovic refused to consent. The trial court noted that Jurkovic failed to promptly answer yes, and that his repeated request for a lawyer, coupled with his nonverbal conduct, constituted a refusal. The trial court also found that Jurkovic's subsequent cooperation with the blood draw does not change the fact that he refused to consent to the test.
. The trial court issued an order concluding that Jurkovic refused to consent to the chemical test, that the refusal was unlawful, and that he was subject to the corresponding penalties. Jurkovic appeals from that order.
II. DISCUSSION
. Jurkovic seizes upon the trial court's comment that he was "misinformed" and contends that the misinformation misled him. He argues that when a defendant is misinformed by a police officer, it is reasonable to ask to speak with an attorney, and that should not be construed as a refusal. He also argues that the misinformation creates per se prejudice to Jurkovic, justifying a reversal of the trial court's order. This court is not pe
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