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City of Appleton v. Tyrrell3/26/2002
. Lamar Tyrrell appeals from an order concluding that he had no basis to refuse to submit to chemical testing of his blood alcohol content after being arrested for operating a motor vehicle while under the influence of an intoxicant. Prior to the refusal hearing, Tyrrell sought dismissal of the refusal proceeding, contending that the application of the penalties mandated by Wis. Stat. § 343.305 for refusing to submit to chemical testing constituted an infringement on his rights under the Fourth and Fourteenth Amendments. The trial court denied that motion and ultimately concluded that Tyrrell had no basis to refuse to submit to the requested test.
. The only issues before the court at a refusal hearing are:
(1) whether the officer had probable cause to believe that the person was driving under the influence of alcohol [and lawfully placed the suspect under arrest]; (2) whether the officer complied with the informational provisions of § 343.305[(4)]; (3) whether the person refused to permit a blood, breath or urine test; and (4) whether the refusal to submit to the test was due to a physical inability unrelated to the person's use of alcohol. State v. Wille, 185 Wis. 2d 673, 679, 518 N.W.2d 325 (Ct. App. 1994).
If at least one of the issues is determined in favor of the defendant, "the court shall order that no action be taken on the operating privilege on account of the person's refusal to take the test in question." Wis. Stat. § 343.305(9)(d).
. Tyrrell does not dispute that the officer had probable cause to arrest him and that the officer complied with the informational provisions of Wis. Stat. § 343.305(4). Tyrrell also does not claim that his refusal to submit to the test was due to a physical inability unrelated to his use of alcohol. Nor does he allege that the arresting officer made any specific threats or applied coercion beyond that which he claims arises under § 343.305, Wisconsin's implied consent law.
. Wisconsin Stat. § 343.305(2) provides in part:
Any person who ... operates a motor vehicle upon the public highways of this state ... is deemed to have given consent to one or more tests of his or her breath, blood or urine, for the purpose of determining the presence or quantity in his or her blood or breath, of alcohol ... when requested to do so by a law enforcement officer.
. The warnings provided under the implied consent law, Wis. Stat. § 343.305(4), include the following:
This law enforcement agency now wants to test one or more samples of your breath, blood or urine to determine the concentration of alcohol or drugs in your system. If any test shows more alcohol in your system than the law permits while driving, your operating privilege will be suspended. If you refuse to take any test that this agency requests, your operating privilege will be revoked and you will be subject to other penalties. The test results or the fact that you refused testing can be used against you in court.
. Further, Wis. Stat. § 343.305(9)(a) provides in relevant part:
If a person refuses to take a test under sub. (3)(a) [authorizing a law enforcement officer to "request the person to provide one or more samples of his or her breath, blood or urine"], the law enforcement officer shall immediately take possession of the person's license and prepare a notice to revoke ... the person's operating privilege.
Thus, the legislature has specified that if a person refuses to take a test, his or her license will be revoked and the officer, upon the refusal, shall immediately take action to bring about the revocation.
. On appeal, Tyrrell makes his contention
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