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In re Refusal of Dolan11/21/2002
. Robert Dolan appeals an order which revoked his motor vehicle operating privilege on account of his refusal to submit to chemical testing for alcohol concentration pursuant to Wis. Stat. § 343.305. He claims the revocation order must be set aside because the imposition of statutory penalties for refusing to submit to chemical testing is a "facial violation of the Fourth and Fourteenth Amendments." We disagree and affirm.
BACKGROUND
. A City of Beaver Dam police officer arrested Dolan for operating a motor vehicle while under the influence of an intoxicant. Dolan refused to submit to a chemical test of his blood and the officer issued Dolan a notice of intent to revoke operating privilege. See Wis. Stat. § 343.305(9). Dolan filed a "Demand for Hearing on Refusal" with the circuit court, and then moved to dismiss the refusal proceeding on various grounds.
. At the refusal hearing, Dolan stipulated that the officer had probable cause to arrest him and that the officer complied with the "informing the accused" requirements. See Wis. Stat. § 343.305(4). Dolan argued that his operating privilege should not be revoked notwithstanding his refusal to submit to a test because the State may not constitutionally punish him for exercising his Fourth Amendment right to not submit to a blood test. The court concluded, however, that § 343.305 is constitutional, and accordingly, denied Dolan's motion. The court entered an order revoking Dolan's motor vehicle operating privilege for twelve months. Dolan appeals, renewing his constitutional challenge to the implied consent statute.
ANALYSIS
. Dolan summarizes his challenge to Wis. Stat. § 343.305 as follows: " he `refusal' statute, at least to the extent that it imposes penalties for refusing to submit to testing, violates the Constitution because an individual has an absolute right to refuse to consent to a search and seizure." After Dolan filed his opening brief, and the State had responded, Dolan asked us to suspend the briefing until this court decided whether to publish our opinion in Village of Little Chute v. Walitalo, 2002 WI App 211, , __ Wis. 2d __, 650 N.W.2d 891 (concluding that reading a defendant the "informing the accused" form, which threatens the loss of driving privileges if a test is refused, is not "coercion" that invalidates consent under the Fourth Amendment).
. In support of his request, Dolan told us that the "issue decided in Walitalo is related to issue presented by the present appeal." We agreed to the request. Having thus obtained a delay in the submission and disposition of this appeal, however, Dolan devotes little more than a page of his reply brief to telling us that our opinion in Walitalo in fact has no bearing on the issue he raises in this appeal. This is so, according to Dolan, because we did not address in Walitalo the constitutionality of the implied consent and refusal sanction provisions of Wis. Stat. § 343.305.
. We have since done so, however. We concluded in State v. Wintlend, No. 02-0965-CR (Wis. Ct. App. Nov. 6, 2002, recommended for publication), that the provisions of Wis. Stat. § 343.305 which condition a driver's privilege to operate a motor vehicle on Wisconsin highways on the surrender of his or her right to refuse a chemical test for alcohol concentration do not violate the Fourth Amendment. We relied in part on the supreme court's observation in State v. Neitzel, 95 Wis. 2d 191, 193, 289 N.W.2d 828 (1980), that one who applies for and accepts a license to drive does so on "`the condition that a failure to submit to the chemical tests will result in the ... revocation of his license unless the refusal was reasonable.'" Wintlend,
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