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State v. Thayer2/12/2002
. Yvette Thayer appeals a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant (OWI), second offense, contrary to Wis. Stat. § 346.63(1)(a). Thayer argues that the blood test results should have been suppressed because the Informing the Accused form was misleading by implying she had a right to refuse a blood test. We disagree and affirm the conviction.
BACKGROUND
. On October 18, 2000, Barron County sheriff's deputy Jason Hagen was dispatched to investigate an accident. Upon arriving, Hagen saw a vehicle in a ditch. When Hagen looked in the vehicle, the driver, later determined to be Thayer, appeared to be asleep or passed out. After waking her, Hagen noted that Thayer had a strong odor of intoxicants, slurred speech, and difficulty maintaining balance.
. Hagen arrested Thayer for OWI and transported her to the local hospital for a blood test. Once at the hospital Thayer was read the Informing the Accused form and was asked if she would submit to a blood test. Thayer said no. Then Hagen advised her that a blood sample would be drawn without her consent. The test revealed a blood alcohol concentration of .217%.
. Thayer filed a motion to suppress the blood test results, arguing that the statutory scheme was inaccurate and misleading because it informed Thayer that she had a right to refuse consent to a test when, in fact, the police could ignore her refusal and compel the test. The circuit court denied the motion.
STANDARD OF REVIEW
. Because the relevant facts are undisputed and Thayer does not claim the circuit court's factual findings were clearly erroneous, this appeal presents a question of law that we review independently. See State v. Rydeski, 214 Wis. 2d 101, 106, 571 N.W.2d 417 (Ct. App. 1997).
DISCUSSION
. Wisconsin Stat. § 343.305(2), a portion of Wisconsin's implied consent law, 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, § 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 [343.305] 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 of intent 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 the actions to bring about the revocation. Relying on these statutes, Thayer reasons that the Informing the Accused form misled her into believing
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