COURT OF APPEALS DECISION DATED AND FILED November 26, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from an order of the circuit court for
¶1 SNYDER, J.[1] Howard M. Stelzer, Jr., appeals from an order denying relief from the revocation of his operating privilege due to his refusal to submit to an implied consent blood alcohol test in violation of Wis. Stat. § 343.305(2). The trial court denied Stelzer’s motion for a refusal hearing as being untimely. We agree and affirm the order.
¶2 The facts concerning Stelzer’s request for a refusal hearing are undisputed. On December 18, 2007, Stelzer was arrested for operating a motor vehicle while intoxicated, refused to submit to a request for a blood alcohol evidentiary test, and was issued a Notice of Intent to Revoke Operating Privilege and Temporary Driving Receipt (Notice) pursuant to Wis. Stat. § 343.305(9). The Notice contained the § 343.305(9)(a)4. required information concerning Stelzer’s statutory right to request a refusal hearing:
That the person may request a hearing on the revocation within 10 days by mailing or delivering a written request to the court whose address is specified in the notice. If no request for a hearing is received within the 10-day period, the revocation period commences 30 days after the notice is issued.
¶3 Stelzer requested a refusal hearing on January 15, 2008. The trial court denied Stelzer’s motion to
reinstate his right to a refusal hearing because of his “not having timely
filed a request for a refusal hearing within [the] statutory time limits.” The State asserts that Stelzer requested the
refusal hearing twenty-eight days after he received the notice of his right to
do so. Stelzer claims that under Wis. Stat. § 801.15(1)(b),
Saturdays, Sundays, and holidays would be excluded when calculating the ten-day
period and that his refusal hearing request was therefore due on January 7,
2008, which amounted to twenty days after he received notice. Either way, Stelzer’s January 15 request for
a refusal hearing was not timely under Wis.
Stat. § 343.305(9)(a)4.
¶4 The appellate issue, consistent with the trial court’s basis for denying the motion for a hearing, is whether Stelzer’s untimely filing of his request deprived the trial court of the power to exercise its authority over a refusal hearing. We conclude that it did.
¶5 A trial court’s competency to proceed is a question of law
which we review de novo. State
v. Bollig, 222
¶6 Failure of a party to comply with a statutory mandate will
result in a loss of competency preventing the court from deciding the issue
presented. See Achtor v.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(f) (2005-06). All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.