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State v. Lochemes12/1/2004
Robert J. Lochemes appeals from an order revoking his driving privileges for two years and denying his request for reconsideration. The circuit court's order found that Lochemes had unlawfully refused to submit to a chemical blood test for intoxication in violation of Wis. Stat. § 343.305. He contends that he was misled regarding his right to refuse the test and, further, that no harm occurred because the State did actually perform a blood test. Therefore, he argues, the circuit court improperly ordered revocation. We disagree and affirm the order of the circuit court.
. On May 30, 2003, Sergeant Jason Hennen of the Village of Elm Grove Police Department stopped a vehicle on suspicion of drunk driving. Hennen identified the driver of the vehicle as Lochemes. Hennen asked Lochemes to perform various field sobriety tests and subsequently placed him under arrest for operating a motor vehicle while under the influence of an intoxicant.
. Hennen took Lochemes to police headquarters and issued him a citation. Hennen then read the Informing the Accused form to Lochemes and asked him to submit to an evidentiary chemical test of his blood. Lochemes stated that he would not submit to the blood test until he could talk to his attorney and doctor, explaining that he was on some medications. Hennen determined that Lochemes was not willing to submit to the blood test and explained to Lochemes that the blood test would be performed anyway. Lochemes indicated that he would physically resist any attempt to perform a blood test on him. Hennen requested assistance and two other officers as well as medical personnel arrived for the blood draw. At that time, Lochemes indicated that he would cooperate.
. At the refusal hearing on April 20, 2004, the circuit court ruled that Lochemes had improperly refused to submit to an evidentiary chemical test of his blood. On May 10, 2004, the court issued an order for revocation and denied Lochemes's motion for reconsideration.
. Lochemes appeals, first arguing that the revocation based on refusal should be reversed because he was misled into thinking that a refusal meant that he would not be tested. Lochemes does not dispute Hennen's power to administer the forcible blood draw, nor does he contend that Hennen failed to recite the required warnings contained in the Informing the Accused form. Rather, he argues that the warnings provided were inadequate because they failed to inform him that "in addition to the penalties he would be subjected to when he refused, he would be tested regardless of whether he cooperated."
. If an arresting officer fails to comply substantially with the statute, an order of revocation will be reversed. State v. Reitter, 227 Wis. 2d 213, 232, 595 N.W.2d 646 (1999). We have held that even if an arrestee refuses to submit to a voluntary blood test, an officer may acknowledge the refusal, complete the "Notice of Intent to Revoke Operating Privilege" form as provided by Wis. Stat. § 343.305(9)(a), and then proceed with an involuntary blood test as the basis for the operating a motor vehicle with a prohibited alcohol concentration (PAC) charge and in support of the operating a motor vehicle while intoxicated charge.
State v. Marshall, 2002 WI App 73, , 251 Wis. 2d 408, 642 N.W.2d 571. The officer "only has a duty to provide the information on the form." County of Ozaukee v. Quelle, 198 Wis. 2d 269, 284, 542 N.W.2d 196 (Ct. App. 1995). Application of the implied consent law to an undisputed set of facts is a question of law, which this court reviews de novo. Reitter, 227 Wis. 2d at 223. Here, Hennen complied with his statutory duty when he read the Informing the Accused form to Lochemes. See Quelle,198 Wis. 2d at 28
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