State v. Smythe9/23/1999
h of the three tests he will take. He contrasts his view with that of the State, which he characterizes as follows: "You are required to submit to all tests which the officer requests. If you refuse to take any test requested by the officer, then you are refusing to submit to testing and your operating privileges will be revoked." The fact that the form can be understood to mean two very different things, Smythe argues, underscores the fact that it is "ambiguous and confusing." And the result, according to Smythe, is a violation of his due process rights-that the State is now attempting to penalize him for a decision he made in reliance on misleading information given to him by a police officer.
We are not persuaded. We agree with the circuit court that the form adequately informed Smythe of his rights and responsibilities under the implied consent law. In State v. Tuckwab, 98 Wis.2d 182, 295 N.W.2d 795 (1980), we considered essentially the same arguments Smythe has put before us here. Tuckwab, appealing a finding that he had improperly refused a test, was convicted of violating the implied consent law by refusing to submit to a breath test. On appeal, he challenged the legal sufficiency of the "Informing the Accused" form that was being used at the time, which was, in all essential points, identical to that used in this case. Paragraph one of the form in Tuckwab read: "You are deemed under Wisconsin's Implied Consent Law, s. 343.305, to have consented to tests of your breath, blood or urine for the purpose of determining the presence or quantity of alcohol or controlled substances in your blood"; and the second paragraph read, in part: "If you refuse to submit to any such tests, your operating privilege will be revoked ...." Id. at 185, 295 N.W.2d at 797. Tuckwab, like Smythe, argued that the language was "misleading and confusing" because it implied that an individual's license could be revoked only where he or she refuses to submit to all of the tests mentioned in that paragraph. Id. at 186, 295 N.W.2d. at 797-98. We rejected the argument, explaining that the paragraph, "when read in light of the entire form," sufficiently informs the accused that "tests" refers to one or more of the enumerated tests, and that if the accused refuses to submit to the test selected by the officer, he or she is in violation of the implied consent law. Id. at 186, 295 N.W.2d at 798. We thus concluded that "the form ... which was read to [Tuckwab] did adequately inform of his rights and responsibilities under Wisconsin's implied consent law." Id. at 187, 295 N.W.2d. at 798. As indicated, the form used to inform Smythe contained substantially similar language to that used to inform Tuckwab of his rights under the informed consent law. The supreme court has agreed with this Conclusion. See State v. Reitter, No. 98-0915, slip op. (Wis. June 29, 1999), where the court, citing our decision in Village of Oregon v. Bryant, 188 Wis.2d 680, 524 N.W.2d 635 (1994), for the propositions that: (1) the provisions of the implied consent law "are neither confusing nor contradictory," Reitter, slip op. at 14, citing Bryant, 188 Wis.2d at 693-94, 524 N.W.2d at 640; and (2) that "because the `Informing the Accused' Form adequately alerts accused drivers to the testing process and the consequences of refusal, the provisions of the implied consent statute do not violate due process." Reitter, slip op. at 26, citing Bryant, 188 Wis.2d at 692, 524 N.W.2d at 640.
By the Court. -- Order affirmed.
This opinion will not be published. See Rule 809.23(1)(b)4, Stats.
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