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State v. Schmidt11/11/2004
On April 10, 2003, Schmidt was involved in a one-vehicle accident and walked from the scene to his parents' house. Jackson County Deputy Sheriff Michael Tauscher arrested Schmidt there for operating a motor vehicle while intoxicated, after observing that Schmidt had slurred speech and smelled of intoxicants. Deputy Tauscher told Schmidt they were going to the hospital to have a blood draw performed. Schmidt said he wanted a breathalyzer test rather than a blood test. Deputy Tauscher replied that the first test he was offering was a blood test and Schmidt would have to take that first; if Schmidt took the blood test, he could then take a breathalyzer test. Schmidt stated several times thereafter that he would rather take the breathalyzer test than the blood test. He explained that he did not want a blood test because when he had one before, the results were much higher than the results of the other test. After this discussion, Deputy Tauscher read Schmidt an "Informing the Accused" form, which informed Schmidt of the penalties for refusing to take the test the officer requested. The form also informed Schmidt that he could take an alternative test provided by the law enforcement agency free of charge if he took the requested test.
. After Deputy Tauscher read this form, Schmidt cooperated with having his blood drawn. Deputy Tauscher then transported Schmidt to the jail. No breathalyzer test was administered. Deputy Tauscher testified that, after Schmidt's blood was drawn, Schmidt did not ask to have a breathalyzer test. Schmidt's testimony was in conflict with the officer's on this point. Schmidt testified that, after the blood draw, he told Deputy Tauscher he still wanted a breathalyzer test and it was his understanding that he was going to be given one.
. The trial court found that Schmidt stated that he would rather have a breathalyzer test than a blood test several times, but that, after the blood test was administered, Schmidt did not request another test. The court explained that it found Deputy Tauscher's testimony on this disputed point more credible than Schmidt's. The court construed Wis. Stat. § 343.305(5)(a) to require that a person must first submit to the test requested by the officer before making a request for an additional test, and, the court stated, the Informing the Accused form also contemplates this. Because the court found Schmidt did not make a request for the breathalyzer test after taking the blood test, it denied Schmidt's motion to suppress the results of the blood test.
DISCUSSION
. On appeal, Schmidt contends that Wis. Stat. § 343.305(5)(a) requires suppression of the blood test results because he asked for a breathalyzer test as an additional test and Deputy Tauscher failed to administer one after he took the blood test. Schmidt disputes the circuit court's construction of the statute to require that the request for an additional test be made after the first test has been taken. Instead, Schmidt asserts, when a person asks for a different test before taking the test requested by the officer, after the person takes the test requested by the officer, the officer must inquire whether the person still wants another test.
. The State responds that the circuit court correctly construed the statute. In the alternative, the State contends, even if the statute does not require that the additional test be requested after the first test has been taken, the record shows that Schmidt requested the breathalyzer test instead of the blood test, not in addition to it, and this is not a valid request under Wis. Stat. § 343.305(5)(a).
. Wisconsin Stat. § 343.305(2) provides that a person operating a motor vehicle on the public highways is deeme
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