COURT OF APPEALS DECISION DATED AND RELEASED JUNE 21, 1995 |
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. 95‑0429
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff‑Respondent,
v.
MARK S. WITKOWSKI,
Defendant‑Appellant.
APPEAL from an order of
the circuit court for Calumet County:
DONALD A. POPPY, Judge. Affirmed.
ANDERSON, P.J.
Mark S. Witkowski appeals from an order of the circuit court finding
that his refusal to submit to a chemical test of his breath was
unreasonable. We affirm because we conclude
that his criticisms of the informing the accused form are not well founded and
he was given fair notice that if he had two or more convictions within ten
years, it was possible that he would lose the use of his vehicle.
Witkowski was stopped
and arrested by an officer from the New Holstein Police Department for drunk
driving in violation of § 346.63(1)(a), Stats. In the ordinary course of the arrest,
Witkowski was transported to the Calumet County Sheriff’s Department to be
given a chemical test of his blood. In
anticipation of the test, the arresting officer read Witkowski the informing
the accused form, and when asked if he would submit to a chemical test of his
blood, Witkowski refused.
At the hearing on the
reasonableness of his refusal, Witkowski insisted that portions of the
informing the accused form were inaccurate statements of the potential
penalties faced by three-time losers and there was a lack of certainty with
regard to what penalties would apply.
Specifically, he criticizes the language in paragraph five of Section A
of the informing the accused form:
If
you have a prohibited alcohol concentration or you refuse to submit to
chemical testing and you have two or more prior suspensions, revocations
or convictions within a 10 year period and after January 1, 1988, which would
be counted under s. 343.307(1) Wis. Stats., a motor vehicle owned by you may be
equipped with an ignition interlock device, immobilized, or seized and
forfeited.
His criticism
incorporates language from §§ 343.307(1), (2) and 343.23, Stats., prescribing the length of time
the Department of Transportation should retain certain records of licensed
drivers. Witkowski constructs an
argument that the information is so confusing that a person intent on obeying
the law would not know if convictions within five or ten years of the date of
arrest would be counted in determining whether to deny the person the use of a
motor vehicle he or she might own. He
then relates this argument to due process principles that penalties must be
prescribed with certainty or run afoul of constitutional protections.
The circuit court
resolved all of Witkowski’s claims against him and entered an order finding
that his refusal was unreasonable.[1] On appeal, Witkowski raises the same
claims. The State counters with two
arguments. First, it argues that there
was substantial compliance with the statute, and because Witkowski was a first
time offender, the language he claims to be confusing did not apply to
him. Second, on the merits, the State
asserts that the language is not confusing, that a reasonable person would know
that if he or she had two or more convictions within ten years of the arrest,
the person could be subject to the vehicle forfeiture, immobilization and other
provisions of the statutes.
This case presents an
undisputed set of facts to which this court must apply a statute, thereby
presenting a question of law to be reviewed de novo. State v. Zimmerman,
185 Wis.2d 549, 554, 518 N.W.2d 303, 304 (Ct. App. 1994).
Section 343.305(4), Stats., sets out warnings that an
officer must give to a drunk driving suspect who is requested to submit to
chemical testing. The specific section
of the statute at issue in this case states:
If
testing is refused, a motor vehicle owned by the person may be immobilized,
seized and forfeited or equipped with an ignition interlock device if the
person has 2 or more prior suspensions, revocations or convictions within
a 10‑year period that would be
counted under s. 343.307(1) and the person's operating privilege will be
revoked under this section.
Section
343.305(4)(b).
The State contends that
Witkowski had no prior convictions that would place him in danger of losing the
use of his vehicle and, as read, the form did advise Witkowski of all rights
and penalties relating to him. The
State argues that the requirements of § 343.305(4), Stats., were substantially complied
with and Witkowski’s refusal to submit to a chemical test was unreasonable.
In determining whether
substantial compliance occurred, this court construes § 343.305(4), Stats., to give effect to the
legislature's intent. State v.
Wilke, 152 Wis.2d 243, 247, 448 N.W.2d 13, 14 (Ct. App. 1989). The intent in implementing the implied
consent law is, in part, to “quash the effects of drunk driving.” State v. Nordness, 128 Wis.2d
15, 34, 381 N.W.2d 300, 307‑08 (1986).
To that end, the courts generally give considerable weight to the
state's interest as long as the means it employs to effect its interests are
within statutory bounds. Id. at
34, 381 N.W.2d at 308.
In State v.
Piskula, 168 Wis.2d 135, 137-38, 483 N.W.2d 250, 251 (Ct. App. 1992),
an officer failed to deliver the commercial operator's license warnings to a
noncommercial operator. Based on this
failure, the operator argued that the revocation order for refusing to take the
test was improper. This court
disagreed, holding that the officer's warnings, although not in full compliance
with the statute, constituted substantial compliance. Id. at 140‑41, 483 N.W.2d at
252. The court concluded that
substantial compliance with the implied consent statute will suffice if it is
actual compliance with every reasonable objective of the statute. Id.
The reasonable objective
of the implied consent statute is to inform drivers of their rights and
penalties for either refusing to submit to a chemical test or for submitting to
a chemical test which results in a prohibited alcohol concentration. Id. The court also said that informing a drunk driving suspect of all
the rights and penalties relating to him or her was “actual compliance with respect
to the substance essential to every reasonable objective of the statute.” Id. at 141, 483 N.W.2d at 252.
In the instant case, the
arresting officer informed Witkowski of his rights and penalties by reading
from an informing the accused form.
This form incorporated all of the language of § 343.305(4), Stats., including the language that “a
motor vehicle owned by [Witkowski] may be immobilized, seized and forfeited or
equipped with an ignition interlock device” if Witkowski had two or more prior
convictions within a ten-year period of the incident. This is the language that Witkowski claims is confusing. The language only applies to individuals
with two or more prior drunk driving convictions. At the time of the incident in this case, Witkowski had never
been convicted of drunk driving.
Therefore, Witkowski was actually informed about the rights and
penalties relating to him. Whether the
language warning of the consequences detailed in § 343.305(4)(b), Stats., is confusing and violates due
process does not have to be addressed because the warning given to Witkowski
fulfilled the reasonable objective of the statute.
Therefore, this court
concludes that the claimed ambiguities of the language of the informing the
accused form, mirroring § 343.305(4)(b), Stats., did not thwart
the purpose of the implied consent law.
Since Witkowski was properly informed of the rights and penalties
appropriate to him pursuant to § 343.305(4), there was actual compliance
with respect to the substance essential to every reasonable objective of the
statute. As a result, substantial
compliance was achieved.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1]
The opinion and order of the circuit court were not included in the
appendix to Witkowski’s brief. Rule 809.19(2), Stats., provides, in part:
The appellant’s brief shall
include a short appendix providing relevant docket entries in the trial court,
the findings or opinion of the trial court and limited portions of the record
essential to an understanding of the issues raised, including oral or written
rulings or decisions showing the trial court’s reasoning regarding those
issues.
Because Witkowski’s brief utterly fails to comply with even the most basic requirements for an appendix, a separate order has been issued imposing a penalty on appellate counsel for Witkowski.