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State v. Jurkovic7/18/2000
this stage of the proceedings. See id. at 225.
. Jurkovic contends that he never "articulated a refusal to submit to a blood test." However, that is not the standard by which these cases are governed. " t is the reality of the situation that must govern, and a refusal in fact, regardless of the words that accompany it, can be as convincing as an express verbal refusal." Id. at 234-35 (citation omitted). "The implied consent law does not require a verbal refusal." Id. at 234. Rather, conduct that is uncooperative, thereby preventing or delaying the administration of the test can constitute a refusal. See id. Some examples of such conduct include: refusing to give a yes or no answer, instead repeatedly asking for counsel; see id.; refusing to give a yes or no answer, instead repeatedly asking to use the restroom; see State v. Rydeski, 214 Wis. 2d 101, 107, 571 N.W.2d 417 (Ct. App. 1997); and insisting on waiting for an attorney to arrive before submitting to the test; see State v. Neitzel, 95 Wis. 2d 191, 205, 289 N.W.2d 828 (1980).
. Here, Zurkovic is not unfamiliar with the procedures involved. This was his fourth OWI offense. He was read the proper warnings, and did not give a proper response. Once the proper warnings are given and the accused does not willingly submit to the test, a refusal has occurred, and the accused is subject to the consequences. See id. To allow defendants to manipulate the system by refusing to cooperate, only to subsequently argue on appeal that the lack of cooperation did not constitute a refusal, would undermine the legislature's "intention to facilitate drunk driving convictions." See Reitter, 227 Wis. 2d at 231.
. Accordingly, this court concludes that any "misinformation" was not misleading and did not affect Jurkovic's ability to make a choice. Therefore, the trial court reached the correct conclusion when it ruled that Jurkovic's conduct constituted an unlawful refusal to submit to a chemical test.
By the Court. -- Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
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