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State v. Ziebell12/11/2001
. The sole issue on appeal is whether the circuit court erroneously exercised its discretion when it denied Patricia Ziebell's motion to dismiss the charge for refusing to take a blood alcohol test after she pled guilty to the underlying charge of operating a motor vehicle while under the influence of an intoxicant. Because the circuit court applied an incorrect standard of law when exercising its discretion, the order is reversed and the matter is remanded to the trial court.
. The facts are undisputed. A Shawano County sheriff's deputy arrested Patricia Ziebell for OWI. The deputy transferred her to the Shawano Medical Center where the deputy read Ziebell the Informing the Accused form. When asked if she would submit to a chemical test of her blood, she said no. Consequently, a Notice of Intent to Revoke was issued and Ziebell requested a refusal hearing.
. Ziebell then filed a motion to dismiss the refusal charge. On the date of the refusal hearing, the State indicated that it would move to dismiss the refusal charge upon the entry of a guilty plea to the OWI charge. Ziebell pled guilty to the OWI charge and moved the trial court to dismiss the refusal charge in light of her guilty plea, citing State v. Brooks, 113 Wis. 2d 347, 335 N.W.2d 354 (1983). The court accepted Ziebell's guilty plea to the OWI charge and imposed the appropriate sanctions. However, the court denied Ziebell's motion to dismiss the refusal charge, and the matter proceeded with a refusal hearing. The court found the refusal unreasonable and revoked Ziebell's license.
. In its denial, the court stated:
I really believe that that was a correct move when the legislature separated out the refusal to a separate hearing from the underlying action. It certainly promoted considerable improvements in the enforcement of this law against drinking and driving, and I think to dismiss it is not, would not, is not consistent with good public policy. So the court is not going to dismiss the refusal.
. Ziebell contends that the court's reasoning is directly contrary to the prevailing interpretation of the purpose for refusal hearings as stated in Brooks. She reasons that because the court applied the incorrect standard of law, it failed to reasonably exercise its discretion. See State v. Lipke, 186 Wis. 2d 358, 366, 521 N.W.2d 444 (Ct. App. 1994). We agree.
. In State v. Banks, 105 Wis. 2d 32, 48-50, 313 N.W.2d 67 (1981), the supreme court held that it is a legitimate public purpose for the legislature to provide incentives for taking the blood alcohol test by punishing those persons who refuse to take it. Later, in Brooks, 113 Wis. 2d at 354-55, the supreme court held that revocation is a sanction for refusal to take a blood alcohol test. It observed that the blood alcohol test is mandatory in Wisconsin unless there is a proper basis not to take it. See Wis. Stat. § 343.305(1) and (8). The supreme court reasoned that implied consent to take the test is "needed to improve the rate of convictions so that those who drive while intoxicated [will] be punished." Brooks, 113 Wis. 2d at 355. By refusing the test, the defendant deprives the State of relevant evidence to which it is entitled.
. The legislature has twin goals in its pursuit of the intoxicated driver: to punish those who are convicted of intoxication related offenses and also to punish those who improperly fail to comply with the implied consent law. Id. But, the Brooks court continued:
The accurate, scientific evidence of blood-alcohol level is to be used to secure convictions. However, when an individual pleads guilty to OWI, there is no longer a need for such evidence. The conviction ha
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