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State v. Smith9/22/1999
APPEAL from orders of the circuit court for Waukesha County: JOSEPH E. WIMMER, Judge. Affirmed.
Milton H. Smith appeals from an order finding that he unlawfully refused to submit to a chemical test under the implied consent law, as well as an order denying his motion for relief from that order pursuant to § 806.07(1)(d) and (g), Stats. Smith argues that the information provided to him in the Informing the Accused form did not comply with the implied consent law because it understated the applicable penalties or otherwise misled him. He also contends that he was "tricked" into refusing the test because he was not informed that the police could have obtained a warrantless draw of his blood in any event.
We reject Smith's arguments. We affirm the circuit court's ruling that the police officers substantially complied with their statutory duty to correctly inform Smith under the statute.
FACTS
Smith was arrested on September 2, 1997, for operating a motor vehicle while under the influence of intoxicants (OWI). As a result, he was transported to the Village of Menomonee Falls Police Department so that a chemical test of his breath could be performed. Prior to requesting a breath test from Smith, Officer James Nichols read Smith a standard Informing the Accused form issued by the Department of Transportation (DOT).
This form is broken down into two sections, marked "A" and "B." The "A" section consists of five paragraphs and applies to everyone. The first four paragraphs convey all of the information required by § 343.305(4), Stats. However, the fifth paragraph additionally warns of certain sanctions (vehicle immobilization, seizure or forfeiture) if the suspect is a repeat offender and: (1) refuses the test, or (2) takes the test and the result is a prohibited alcohol concentration. This information is not expressly required by § 343.305(4) to be given to the suspect.
The "B" section applies to commercial motor vehicle operators and those who hold a commercial driver's license. While this section is not at issue in this case, we briefly address its contents. This section contains three paragraphs that advise a commercial operator or license holder of the consequences of a refusal or a test result showing an alcohol concentration. This detailed information is not required by § 343.305(4), Stats. Instead, the statute simply requires a warning that if the suspect holds a commercial driver's license or was operating a commercial motor vehicle, "other consequences may result from positive test results or from refusing testing, such as being placed out of service or disqualified." Id.
Nichols testified that he checked off each paragraph on the form as he read each provision to Smith. After being read the entire form, Smith refused to submit to a chemical test of his breath.
At the time of the arrest, the police believed that this was Smith's only OWI offense within the statutorily relevant period. Thus, Smith was issued a citation for first-offense OWI under a local ordinance that was the corollary of § 346.63(1)(a), Stats. Later, a more detailed review of Smith's driving record revealed two prior OWI convictions, which occurred July 15, 1988, and July 6, 1992. In light of these discoveries, the matter was transferred to the district attorney's office. The district attorney then recharged the offense as an OWI third offense and included an additional enhancer based on the fact that a minor passenger was in the vehicle at the time of the offense. See § 346.65(2)(f), Stats.
Based upon Smith's refusal to submit to a chemical test, the State also commenced the instant refusal proceeding. A hearing was held pur
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