COURT OF
APPEALS DECISION DATED AND
RELEASED JULY
10, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-3359
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
GLEN
PROEBER, JR.,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Waukesha County: MARIANNE E. BECKER, Judge. Affirmed.
ANDERSON,
P.J. Glen Proeber, Jr., appeals from an order
revoking his operating privileges for a period of one year, pursuant to §
343.305, Stats. We conclude that the trial court correctly
determined that Officer David Wanie's warnings were appropriate and that
Proeber's refusal was improper.
Accordingly, we affirm.
The
facts in this case are undisputed. On
February 23, 1995, at 12:50 a.m., Wanie observed Proeber's vehicle weaving,
stopping in the middle of an intersection and traveling at a low rate of speed
without illuminated headlights. After
Wanie stopped the vehicle, he detected a scent of alcohol in the car and
proceeded to administer a variety of field sobriety tests to determine whether
Proeber was intoxicated. After Proeber
failed the field sobriety tests, he was arrested and brought to the City of New
Berlin Police Department for booking.
At
the police department, Wanie read the Informing the Accused Form (the form) to
Proeber advising him of his right to consent to a chemical test to determine
his blood alcohol content. Wanie read
the implied consent law's requirements for persons holding both regular and
commercial driver's licenses, pursuant to § 343.305(4) and (4m), Stats.
The form identified which sections of the law applied to holders of
regular and commercial driver's licenses, Sections A and B respectively. After Wanie read the form to Proeber,
Proeber refused to submit to testing.
Wanie served Proeber with a notice of intent to revoke his operating
privileges. Proeber then demanded a
hearing regarding the revocation, and a refusal hearing was scheduled. At the conclusion
of the hearing, the trial court determined that Proeber was properly informed
under the implied consent law and ordered that Proeber's operating privileges
be revoked. Proeber appeals.
Proeber
asserts that the trial court erred because Wanie did not “substantially comply”
with § 343.305(4m), Stats. Since Proeber did not actually hold a
commercial driver's license, he contends that it was not necessary to read him
the portion of the form applicable to persons with commercial driver's
licenses. Proeber argues that this
extraneous information confused him and caused him to refuse testing, which led
to the revocation of his driver's license.
The
facts in this appeal are undisputed. The application of a statute to a
particular set of facts is a question of law, which we review de novo. DOR v. Sentry Fin. Servs. Corp.,
161 Wis.2d 902, 910, 469 N.W.2d 235, 238 (Ct. App. 1991).
This
court has recently addressed Proeber's concerns. In County of Ozaukee v. Quelle, 198 Wis.2d 269,
280, 542 N.W.2d 196, 200 (Ct. App. 1995), this court set forth a stringent
three-part test to assess the adequacy of the warning process under the implied
consent law:
(1)
Has the law enforcement officer not met, or exceeded his or her duty under §§
343.305(4) and 343.305(4m) to provide information to the accused driver;
(2) Is the lack or oversupply ofinformation misleading; and
(3) Has the failure to properly inform the driver
affected his or her ability to make the choice about chemical testing?
Id. at 280, 542 N.W.2d at 200.
The
first question is whether Wanie exceeded his duty under § 343.305(4) and (4m), Stats., to provide information to
Proeber. We conclude that he did
not. Section 343.305(4m) requires that
if the subject holds a commercial driver's license, then the information
pertaining to persons holding such a license must be read. It does not say, however, as Proeber
insists, that an officer cannot read that portion of the information to those
who only hold a regular license.
Proeber understood the information regarding persons holding a regular
license. He was also informed that the
information in Section B only applied to persons holding a commercial driver's
license. There is no restriction
prohibiting an officer from reading commercial license information to persons
holding a regular license.
The
sole restriction that the statute provides would become applicable if Proeber
did in fact hold a commercial license.
In such a scenario, pursuant to § 343.305(4m), Stats., Wanie would
be required to inform the holder of a commercial license of his or her rights
under the implied consent law. Proeber
fails part one of the three-part test.
The
second question under Quelle is whether the information provided
by Wanie was misleading. We conclude
that it was not. Proeber testified that
he knew he did not hold a commercial license, that he was not driving a
commercial vehicle at the time of the arrest and that Wanie informed him that
the information regarding commercial licenses did not apply to him. We do not agree that giving commercial motor
vehicle warnings to noncommercial operators creates confusion. These warnings simply advise an operator,
whether commercial or noncommercial, that the implied consent law applies to both. Village of Elm Grove v. Landowski,
181 Wis.2d 137, 144, 510 N.W.2d 752, 755 (Ct. App. 1993). Therefore, the information pertaining to
persons holding commercial licenses, which was read to Proeber, could not be
found to be misleading since he did not hold a commercial license. Proeber also fails part two of the
three-part test.
Under
the remaining section of the three-part test, the question is whether Wanie's
alleged failure to properly inform Proeber affected Proeber's decision
regarding chemical testing. Since Wanie
informed Proeber that the information regarding commercial licenses did not
apply to him, Proeber cannot establish that this information impaired his
choice to submit to chemical testing.
The fact that Proeber may have experienced confusion regarding the
commercial driving license portion of the form does not change the fact that he
improperly refused to submit to the test.
Proeber fails the final portion of the three-part test.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.