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State v. Pigman2/5/2002
. Boyd Pigman appeals from a judgment convicting him after a bench trial for operating a motor vehicle while under the influence of an intoxicant (OWI), second offense, in violation of Wis. Stat. § 346.63(1)(a). He contends that the Informing the Accused form read to him after he was arrested for OWI was misleading because it failed to tell him that he has no right to refuse an evidentiary test for his blood alcohol content and therefore violates the Due Process Clause of the Wisconsin Constitution. The conviction is affirmed.
. The underlying facts are undisputed. After a police officer stopped Pigman for speeding, the officer noted an odor of intoxicants coming from Pigman, who admitted that he had consumed a few drinks. When Pigman failed a series of field sobriety tests, the officer placed him under arrest for OWI and transported him to the Barron County jail, where he was read the Informing the Accused form. After Pigman refused to take a breath test, the police took him to a hospital, where a blood sample was drawn without his consent. The blood test revealed an alcohol concentration of .152%.
. Pigman filed a motion to suppress the blood test results, arguing that if the police can ignore a refusal under the statutory scheme, then in fact there is no right of refusal. He reasoned then, as he does now, that if there is no right of refusal, then the warnings required under Wis. Stat. § 343.305(4) are inaccurate and violate due process. The trial court denied the motion.
. Pigman 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). Pigman also does not claim that his alleged refusal to submit to the test was due to a physical inability unrelated to his use of alcohol. Because the relevant facts are undisputed, and Pigman does not claim that the trial court's factual findings were clearly erroneous, this appeal presents a question of law that this court reviews de novo. See State v. Rydeski, 214 Wis. 2d 101, 106, 571 N.W.2d 417 (Ct. App. 1997).
. 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 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
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