COURT OF APPEALS DECISION DATED AND FILED September 10, 2009 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 BRIDGE, J.[1] Lawrence
Gosdeck appeals from an order of the circuit court ruling that Gosdeck
unlawfully refused to submit to evidentiary chemical testing, in violation of
BACKGROUND
¶2 The following facts are taken from the refusal hearing and are substantially undisputed. On December 16, 2008, Jeff Hottman, an officer with the City of Fort Atkinson, pulled over a vehicle driven by Gosdeck after Gosdeck committed several traffic violations. Upon approaching the vehicle, Hottman observed that Gosdeck’s eyes appeared red and glassy, his speech was slurred, and there was a strong odor of intoxicants coming from the vehicle. When questioned, Gosdeck admitted “having a couple” of alcoholic beverages.
¶3 Hottman testified that he asked Gosdeck to perform field sobriety tests, but that Gosdeck stated something to the effect of “I won’t do anything.” Hottman asked Gosdeck if he was refusing to perform the field sobriety tests, and Gosdeck indicated that he was. Hottman then placed Gosdeck under arrest for operating a motor vehicle while under the influence of an intoxicant.
¶4 Hottman transported Gosdeck to the
¶5 At the refusal hearing, Gosdeck disputed whether his conduct could be construed as a refusal to submit to testing. He argued that it was not clear from Hottman’s description of his demeanor and positioning at the time that his refusal to answer Hottman’s questions was a willful attempt to defeat the evidentiary chemical test. He also argued that his passive, non-assertive behavior cannot be construed as a “no” answer. He argued instead that a defendant’s refusal must involve actual, affirmative conduct. In addition, he argued that for policy reasons, he should not be deemed as having refused testing under the circumstances. The circuit court disagreed with Gosdeck and concluded that in this situation, Gosdeck’s silence and conduct constituted a refusal. Gosdeck appeals.
DISCUSSION
¶6 Under the Wisconsin’s implied consent law, every Wisconsin
driver is deemed to have consented to chemical testing for the purpose of
determining the presence or quantity of alcohol in his or her blood or
breath. Wis. Stat. § 343.305(2).
A person may revoke this consent by refusing to submit to testing. See Wis. Stat. § 343.305(9) and
¶7 In his main brief, Gosdeck does not argue that his refusal to
answer whether he was willing to submit to chemical testing when asked the
question multiple times cannot be
construed as a “no” and a refusal to submit to testing under the facts of this
case. He contends instead that for a
variety of policy reasons his refusal to answer should not be construed as a refusal to submit to testing. He argues, for example, that the goal of the
automatic driver’s license suspension for refusal, which he claims is the
fostering of successful prosecutions,[2]
has “to a great extent, [been] rendered an anachronism” following State
v. Bohling, 173
¶8 The language of Wis.
Stat. § 343.305(9) regarding refusals to submit to testing is plain
and unambiguous, and as such we are bound by the statutory language unless such
interpretation leads to an absurd result, something Gosdeck does assert. See
¶9 In his reply brief, Gosdeck argues for the first time on
appeal that his conduct cannot be
construed as a refusal to submit to testing.[3] An appellant who fails to discuss an alleged
error in its main brief may not do so in its reply brief. State v. Marquardt, 2001 WI App 219,
¶14 n.3, 247
¶10 For the reasons stated above, we affirm the order of the circuit court.
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)(c) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] In State v. Brooks, 113 Wis. 2d 347, 355, 335 N.W.2d 354 (1983), the supreme court explained that the purpose of the implied consent law is to obtain evidence of a person’s blood alcohol content in order to prosecute drunk drivers and improve the rate of their conviction.
[3] Gosdeck contends in his reply brief that he raised in his main brief the argument that his conduct cannot be construed as a refusal. The argument in his main brief, however, pertained to the policy reasons why he should not be deemed as having refused and not why his conduct cannot be construed as refusing.