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State v. Morrissey4/4/2000
3, 595 N.W.2d 646 (1999).
. The warnings provided under the implied consent law 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. Wis. Stat. § 343.305(4) (emphasis added).
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. (Emphasis added.)
Thus, in Wis. Stat. § 343.305(4) and Wis. Stat. § 343.305(9)(a), respectively, 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.
. Neither statute, nor any other, provides a police officer the option to ignore or delay these dictates. Neither statute, nor any other, provides a police officer the option to attempt to threaten an arrestee that he or she "would be strapped down and blood would be forcibly drawn," or to compel testing in any other way. Our supreme court has spoken clearly: "Once there has been a proper explanation and there has been a refusal, ... a refusal has occurred under the statute and the accused is subject to the consequences of a mandatory suspension." Reitter, 227 Wis. 2d at 237 n.18.
. Indeed, although, as matter of law, a driver arrested for intoxicated driving has "no `right' to refuse a chemical test," id. at 225, a driver still may refuse to take a chemical test as long as he or she is prepared to suffer the consequences. As this court has explained, "a driver has a `right' not to take the chemical test (although there are certain risks and consequences inherent in this choice)." County of Ozaukee v. Quelle, 198 Wis. 2d 269, 277, 542 N.W.2d 196 (Ct. App. 1995) (emphasis added).
. Moreover, as we also have explained, "the warnings provided drivers under the implied consent law are analogous to those employed in Miranda-type cases." Id. at 276 (footnote omitted). It is important, however, to be very clear in this regard. After all, " fficers who administer a test under the implied consent statute are not required to advise defendants about Miranda rights ... (Miranda rules do not apply because request to submit to a chemical test does not implicate testimonial evidence)." Reitter, 227 Wis. 2d at 225 (citation omitted). Further, the implied consent law confers statutory rights, not constitutional ones, see Quelle, 198 Wis. 2d at 276 n.1, and, not surprisingly therefore, our supreme court "has been reluctant `to devise a "Miranda-like" card' under the implied consent statute." Id. at 230 (citation omitted).
. Thus, while implied consent warnings certainly are not constitutionally comparable to Miranda warnings, they are "analogous," see Quelle, 198 Wis. 2d at 276 (emphasis added), for the purpose of governing the law enforcement response to an arrestee's refusal. When a person, upon receiving the Miranda warnings, invokes the right to remain s
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