COURT OF APPEALS DECISION DATED AND RELEASED January 22, 1997 |
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. 96-2566
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JOHN F. O'BRIEN,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Sheboygan County:
JOHN
BOLGERT, Judge. Affirmed.
BROWN, J. John
F. O'Brien appeals from an order finding that he unreasonably refused to
consent to taking a blood alcohol test following his arrest for driving while
intoxicated. He argues that the
statutes must be read to say that the Informing the Accused communication must
be given just prior to the time an actual “specimen” is taken. Because O'Brien was being asked to take a
blood test, because he was still at the police station when the Informing the
Accused narrative was being read to him and because he would still have to be
driven to the hospital to take the actual test, O'Brien thinks the statute was
not followed. We reject his
construction of the statute and affirm.
O'Brien was brought to
the police station following his arrest for driving while intoxicated and the
Informing the Accused form was read to him.
He refused to take the test. The
officer then suggested to him that he contact an attorney to discuss the
ramifications of his refusal, and O'Brien then placed a call to a person he
identified as a nephew who was a Cook County Circuit Court judge. The officer happened to overhear O'Brien
talking on the telephone and heard O'Brien say he had “bad lungs.” After the phone call, the officer asked why
O'Brien made the statement regarding the “bad lungs” and O'Brien told him that
he had emphysema. The officer then
advised O'Brien that because of the emphysema, the officer could switch the
primary test to a blood test. The
officer readvised him of the Informing the Accused, this time inserting the
blood test in place of the breath test, and O'Brien again refused. The officer gave him several more chances
and was unsuccessful. Finally, the
officer programmed the breathalyzer machine and gave O'Brien one last
opportunity. O'Brien refused
again. The officer marked O'Brien as a
refusal. O'Brien contested the refusal
in a hearing before the trial court and lost.
He now comes here on appeal.
O'Brien raises only one
issue on appeal and it involves statutory construction. He cites § 343.305(4), Stats., which says that an accused must
be orally informed of his or her rights and obligations under the law “[a]t the
time a chemical test specimen is requested ....” O'Brien places emphasis on the word “specimen” and then argues
that the clear, unambiguous meaning of the statute is that the Informing the
Accused form be read immediately before the specimen is collected. In other words, the plain wording of the
statute is that the legislature meant to create a temporal connection between
the reading of the form and the collection of the specimen. O'Brien argues that the construction he
proposes is consistent with the legislative desire to facilitate the taking of
the test.
We agree with O'Brien
that the statute is plain and unambiguous.
However, we disagree with his interpretation. The language of the statute reads that the rights and obligations
be given to the accused “[a]t the time a chemical test specimen is requested.” See § 343.305(4), Stats. (emphasis added). The emphasis should not be placed upon the
word “specimen,” as O'Brien has done, but on the words “is requested.” An officer “requests” that consent be
given to take the test. The statute
unambiguously says that there must be temporal proximity between the reading of
the rights and obligations and the “request” to consent. There is no need to conduct the test
immediately, but there is a need to ask for consent right away.
So here, the fact that
O'Brien was read his rights and obligations at the police station and would
have had to be transported to the hospital for a test is irrelevant. The fact that O'Brien was read the Informing
the Accused form and was immediately asked to consent to take the test is
relevant. The record shows compliance
with the statute and O'Brien loses on his statutory construction claim.
In our view, O'Brien's
interpretation would work absurd and unreasonable results. If O'Brien's construction were the law,
officers would have to first transport the accused to the hospital and then
read the form. That would make for lost
time if the accused then refused to take the test. The officers, who could have been back on the street patrolling
the neighborhoods, would instead be faced with “dead time” in transporting an
accused to the hospital and back, all for nothing. We doubt that the legislature contemplated such result.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.