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State v. Wintlend11/6/2002
. Jerry J. Wintlend appeals his conviction for operating a motor vehicle while intoxicated. He contends that when he was read the Informing the Accused form by the officer following his arrest, the language of that form contained a threatened sanction of a loss of driving privileges unless he consented to taking a blood alcohol test. He maintains that this threat constituted a coercive measure invalidating his consent for Fourth Amendment purposes. See Wis. Stat. § 343.305 (1999-2000). In Village of Little Chute v. Walitalo, 2002 WI App 211, ___ Wis. 2d ___, 650 N.W.2d 891, our court had the same issue before it, but Wintlend maintains that while noting the issue, the Walitalo court did not address it. To the extent that the Walitalo court did not address the argument Wintlend now makes, we speak to that argument and reject it.
. On February 17, 2001, Wintlend was arrested for operating a motor vehicle while intoxicated. The Informing the Accused form was read to him and he consented to taking a blood alcohol test. His blood alcohol measured .183% and he was therefore also charged with a prohibited blood alcohol concentration. Prior to trial, he moved to suppress the evidence, contending, inter alia, that any implied consent to have blood taken from him was a coerced consent by operation of the penalty structure of Wis. Stat. § 343.305(2) and design of the companion provisions of that statute, and was thereby constitutionally invalid. The trial court denied the motion and Wintlend pled no contest to operating while intoxicated. The prohibited blood alcohol concentration charge was dismissed and read in. Wintlend was sentenced and he appeals, again raising the coercion issue.
. This precise issue was before the court in Walitalo. In that case, the court observed that the presence or absence of actual coercion or improper police practices is the focus of inquiry because it is determinative on the issue of whether the consent was the product of a "free and unconstrained will, reflecting deliberateness of choice." Walitalo, 2002 WI App 211 at (citation omitted). The court noted that the arresting officer did not threaten or apply any coercion, but simply read the Informing the Accused form, which stated the truth: if Walitalo refused to submit, his driving privileges could be revoked. Id. at . The court further noted that the statement did not involve trickery or deceit, but merely informed him of his legal situation. Id. Because there was no actual coercion, the court concluded that Walitalo's consent was voluntary. Id.
. When Wintlend wrote his brief-in-chief, Walitalo had not been released. By the time of his reply brief, it had been ordered published. Thus, in his reply brief, Wintlend discussed the impact of Walitalo as it related to his case. For some strange reason, he first submitted that the Walitalo court did not reach whether the implied consent statute, when read to the accused, is a form of coercion because the court held that the attorney general had not been notified. Our review of Walitalo shows that the court made no such holding.
. Later in the reply brief, Wintlend apparently changed course and allowed that the court had, in fact, addressed the issue but claimed that the court missed it. Wintlend wrote, in pertinent part: "The predicate of this Court's opinion in Walitalo is that the statement in the `Informing the Accused' is accurate.... Walitalo says there is no coercion in correctly stating options, assuming that the options are Constitutional." Wintlend then went on to argue that the options are unconstitutional because they force a motorist to make a choice-either take the test or lose one's license. Wintlend appears to maintain that this
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