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State v. Morrissey4/4/2000
ilent or the right to have counsel present, all questioning must cease, and any police effort to persuade or compel the arrestee to relinquish the invoked right is improper. See Miranda v. Arizona, 384 U.S. 436 (1966). Analogously, when an arrestee refuses a test under the implied consent law, police efforts to compel an arrestee to submit must cease, and the officer must comply with the statutory dictates.
. The State argues that Bohling requires affirmance of the trial court's denial of Morrissey's suppression motion. A cursory review of Bohling would seem to support the State's position. After all, in Bohling, as in the instant case, when a person arrested for intoxicated driving objected to a blood test, "the officer informed him that restraint would be used if necessary." Bohling, 173 Wis. 2d at 535. The arrestee then still refused to sign a consent form, but ultimately submitted to the blood test. Id. The supreme court, in a four-to-three decision, reversed this court's decision, which had affirmed the trial court's suppression of the test results. The supreme court concluded
that the dissipation of alcohol from a person's bloodstream constitutes a sufficient exigency to justify a warrantless blood draw under the following circumstances: (1) the blood draw is taken at the direction of a law enforcement officer from a person lawfully arrested for a drunk-driving related violation or crime, and (2) there is a clear indication that the blood draw will produce evidence of intoxication. Id. at 547-48. See also Wis. Stat. § 343.305(3)(c) (implied consent law "does not limit the right of law enforcement officer to obtain evidence by any other lawful means").
. In Bohling, however, the supreme court never addressed the contention Morrissey presents here: that " he only penalty for refusing under the implied consent law is the revocation of the defendant's operating privileges-nothing in the implied consent law authorizes an involuntary blood draw." In Bohling, the supreme court never addressed the dictates of Wis. Stat. §§ 343.305(5) & (9). In Bohling, decided two years before this court's decision in Quelle, the supreme court perforce did not address the implications of this court's conclusion that implied consent warnings are "analogous" to Miranda warnings.
. And in Bohling, the supreme court did not address the cogent argument that to countenance police conduct such as that in this case would be to reach what Morrissey aptly terms "a dangerous conclusion." Indeed, not only would such a conclusion "encourage defendants to become physically resistive to alcohol testing" lest a court "construe [their] behavior as `implied consent,'" as Morrissey argues, but such a conclusion also would allow police to ignore the dictates of Wis. Stat. §§ 343.305(5) & (9)(a) and, without limitation, to compel an arrestee to submit to a test. Clearly, the legislature, delineating specified statutory procedures for an immediate and non-violent police response to a refusal, could not have intended such an absurd result. See State v. Gould, 56 Wis. 2d 808, 812, 202 N.W.2d 903 (1973) (court will reject statutory interpretation that renders absurd result).
. " t is for the legislature," not appellate courts, "to add to the statutory scheme." See Reitter, 227 Wis. 2d at 230. "Inasmuch as the implied consent law is a statutory creation, it is the legislature ... which should impose duties upon officers in the implied consent setting." Id. at 217-18. Likewise, it is the legislature, if it sees fit to do so, that could offer officers the option of ignoring a refusal in order to compel an arrestee to take a test.
. The improvidence of such an option, however
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