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State v. Smythe9/23/1999
Marilyn L. Graves Clerk, Court of Appeals of Wisconsin
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See § 808.10 and Rule 809.62, Stats.
APPEAL from an order of the circuit court for Sauk County: PATRICK TAGGART, Judge. Affirmed.
Ralph D. Smythe appeals from an order revoking his driving privileges based upon a determination that he improperly refused to submit to a breath test under Wisconsin's implied consent statute, § 343.305, Stats. The sole issue on appeal is whether the "Informing the Accused" form, which was read to Smythe by a sheriff's deputy prior to requesting that Smythe submit to a chemical test of his breath, adequately informed Smythe of his rights and responsibilities under the law. We conclude that it did, and therefore affirm the order.
After Smythe had been arrested for driving while intoxicated, Sauk County Sheriff's Deputy Terry Shifflet read the form to him. When asked whether he would submit to a chemical test of his breath, Smythe responded, "I'll give you a blood test, but I'm not going to blow into the machine." Shifflet explained that the breath test is the State's primary test and that if Smythe didn't take it, he would be considered to have refused to be tested. Smythe said he would not, and Shifflet entered "refused" on the form.
A refusal hearing was held on stipulated facts, and the case was submitted to the court on the following stipulated facts: that Shifflet had probable cause to believe that Smythe was driving while intoxicated and read Smythe a true and correct copy of the standard "Informing the Accused" form; and that, if called to testify, Smythe would state that he understands the language in the form to permit him, not the officer, to select which of the three tests to take (breath, blood or urine).
The circuit court, in a written decision, held that Smythe improperly refused to submit to the test-that he "knowingly refused the State's primary testing being the breathalyzer"-and revoked his driving privileges for one year. The court rejected Smythe's contention that the language used in the form was "misleading and confusing," concluding that the form was "clear on its face."
On appeal, Smythe renews his argument that he shouldn't be considered to have refused a test because he was misled and confused by the form's language. It is, in essence, a challenge to the legal sufficiency of the form under the implied consent law and, as such, the issues raised are questions of law, which we review de novo. State v. Sutton, 177 Wis.2d 709, 713, 503 N.W.2d 326, 328 (Ct. App. 1993).
Smythe focuses his challenge on two paragraphs in the form:
1. You are deemed under Wisconsin's Implied Consent Law to have consented to chemical testing of your breath, blood or urine at this Law Enforcement Agency's expense. The purpose of testing is to determine the presence or quantity of alcohol or other drugs in your blood or breath.
2. If you refuse to submit to any such tests, your operating privilege will be revoked.
He claims the language is subject to two equally reasonable interpretations. In his view the language-particularly the phrase "if you refuse to submit to any such tests"-tells an accused that he or she is required to submit to one of three tests-breath, blood or urine-and it is only " f you won't take any of them" that you can be considered to have refused. In other words, Smythe reads the form as allowing him to select whic
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