COURT OF APPEALS DECISION DATED AND RELEASED November
1, 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. 95-0748
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
DOUGLAS
LOIS,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Racine County: STEPHEN A. SIMANEK, Judge.
Affirmed.
SNYDER,
J. Douglas
Lois appeals from an order finding that he refused to submit to a chemical test
in violation of § 343.305(9), Stats. Lois raises three issues on appeal: (1) whether the officer's request for a blood
test, after Lois was deemed to have refused a breath test, was still under the
implied consent statute, § 343.305; (2) whether the officer substantially
complied with the requirements of the implied consent statute; and (3) whether
the denial of his request to consult with an attorney before consenting to the
blood test violated his constitutional right to counsel. Because we conclude that both chemical tests
fell within the purview of the implied consent statute, that the statute was
substantially complied with, and that there was no right to counsel under these
facts, we affirm.
Lois
was stopped by Officer Bret Maus of the Burlington police department after Maus
observed Lois' car cross the center line at least five times. Lois agreed to perform field sobriety tests
and, after failing to successfully complete the first three, was placed under
arrest for operating a motor vehicle while intoxicated.
Lois
was transported to the Burlington police department, where the Informing the
Accused form was read to him. Maus
requested that Lois submit to a breath test, and Lois agreed. Another officer, John Fisher, administered
the test. After explaining the
procedure to Lois, Fisher attempted to administer the breath test. Although on one occasion a tone was emitted
for a few seconds,[1] Lois was
unable to provide an adequate sample.
After five attempts, Fisher entered Lois' test as a refusal.
After
informing Lois that his inability to produce an adequate sample was deemed a
refusal, Maus asked him if he would consent to a blood test. The offer of an alternate test was mandated by departmental policy as a
courtesy and was made available to anyone who was unable or unwilling to
perform the breath test. Lois stated
that he would not consent to a blood test without his lawyer present. After asking Lois a second time to submit to
a blood test, Maus considered the failure to submit to a blood test a refusal. At that point, he filled out the intent to
revoke form and issued it to Lois.
Lois
requested a refusal hearing, as allowed by § 343.305(9), Stats.
At the refusal hearing, Lois' physician testified. He had examined Lois two days after his
arrest, at which time Lois was suffering from a respiratory disorder. The physician further opined that Lois had
had this condition for more than a couple of days and may have had it for a
week to six months.
At
the conclusion of the refusal hearing, the trial court found that while Lois'
failure to provide an adequate breath sample may have been reasonable based on
his physician's testimony, Lois was given a second opportunity to comply with
the implied consent statute. The court
concluded that the failure to consent to the blood test was an unreasonable
refusal under § 343.305(9), Stats.,
and imposed the statutory penalties.
This appeal followed.
Lois
contends that Maus' request that he submit to a blood test was not a request
for a chemical test under the implied consent statute, but an attempt to obtain
chemical evidence by other constitutional means. See State v. Zielke, 137 Wis.2d 39, 52, 403
N.W.2d 427, 432-33 (1987). He argues
that the characterization of his failure to provide an adequate breath sample
as a refusal meant that the second request was no longer within the implied
consent statute. We disagree.
A
determination of whether Maus was proceeding under the implied consent statute
is a question of statutory interpretation.
It involves the application of a statute to an undisputed set of facts. See Gonzalez v. Teskey,
160 Wis.2d 1, 7-8, 465 N.W.2d 525, 528 (Ct. App. 1990). It presents a question of law which we
review de novo. Id.
Section
343.305(3)(a), Stats., provides
in relevant part:
[A] law enforcement officer may request the person to
provide one or more samples of his or her breath, blood or urine for the
purpose specified under sub. (2).
Compliance with a request for one type of sample does not bar a
subsequent request for a different type of sample.
Lois asserts that there is nothing ambiguous about the
language of subsec. (3)(a) as applied to these facts. We agree. Law enforcement
agencies may request an individual to provide one or more samples of
breath, blood or urine for testing.
Here, the Burlington police initially requested that Lois submit to a
breath test.
When
Lois was unable to give an adequate breath sample, the testing officer deemed
it a refusal. This was according to
statute. Section 343.305(6)(c)3, Stats., clearly states that the
“[f]ailure of a person to provide 2 separate, adequate breath samples in the
proper sequence constitutes a refusal.”
When Maus informed Lois that his failure was a refusal, he was following
the statute. Because Maus had not
obtained an evidentiary sample, he then attempted to get a sample through different
means—a blood test. He made this
request, consistent with the statutory guidelines which allow law enforcement
agencies to request one or more tests for evidentiary purposes.
The
purpose of the implied consent statute provides additional support for this
analysis. Its intent is to facilitate
the taking of tests for intoxication and to further the State's interest in
removing drunken drivers from the highway.
See Scales v. State, 64 Wis.2d 485, 494, 219 N.W.2d
286, 291-92 (1974). In light of this
purpose, the implied consent statute is to be liberally construed. Id. at 485, 219 N.W.2d at 292.
The
statute allows for the possibility that a law enforcement agency may request
more than one type of test. If the
evidentiary result of one test is suspect, for example, another test may be
requested. Even if the individual has
complied with an officer's first request and a satisfactory result is obtained,
this does not bar a request for a different test. See § 343.305(3)(a), Stats. It would be absurd to read § 343.305(3)(a)
to mean that law enforcement cannot request a different type of sample after a
contrived refusal, but could do so if there was compliance. The supreme court has stated that statutes
must be interpreted to avoid absurd or unreasonable results. Zielke, 137 Wis.2d at 51, 403
N.W.2d at 432. Provisions of statutes
must be harmonized to give reasonable effect.
Id.
We
find further support for this position in State v. Pawlow, 98
Wis.2d 703, 298 N.W.2d 220 (Ct. App. 1980).
Pawlow was arrested for driving while intoxicated and requested to take
a breath test. He consented, but just
prior to taking the test he vomited.[2] The police officer then requested a urine
test, and Pawlow refused. Pawlow argued
that because he had consented to the breath test, it was not unreasonable to
refuse a substituted test. Id.
at 703‑04, 298 N.W.2d at 221.
This court disagreed, stating that the initial designation of a
particular test does not prevent an officer from requesting an additional test
or a different test. Id.
at 705, 298 N.W.2d at 222.
Here,
as in Pawlow, Lois consented to a primary breath test and was
unable to comply for a physical reason.
The officer requested an alternate test, and it was refused. In both cases, the failure to comply with
the initial test was deemed a refusal.
Lois' physical inability to comply was a defense to his refusal to take
the breath test. The trial court then
found that his refusal to submit to Maus' request for an alternate test, a
blood test, was unwarranted. We
conclude that this was a proper application of the statutory guidelines of the
implied consent statute.
Lois
also contends that Maus' failure to reread the Informing the Accused form,
after the breath test was deemed a refusal, did not constitute substantial
compliance. When officials fail to
comply with the implied consent statute, an individual's license cannot be
revoked. Zielke, 137
Wis.2d at 54, 403 N.W.2d at 433.
Complete compliance is not required, but only “actual compliance in
respect to the substance essential to every reasonable objective of the
statute.” State v. Muente,
159 Wis.2d 279, 281, 464 N.W.2d 230, 231 (Ct. App. 1990) (quoted source
omitted).
Lois
argues that because his inability to produce an adequate breath sample was
deemed a refusal, Maus' failure to reread the Informing the Accused form
prejudiced Lois by increasing the likelihood that he would refuse to provide
any additional evidence sought. We
disagree. In the first reading of the
form, Lois was informed that “[h]e ... is deemed to have consented to tests
under sub. (2).” See §
343.305(4)(a), Stats. (emphasis
added). The legislature has decided
what persons must be told when they are requested to submit to chemical
testing. State v. Crandall,
133 Wis.2d 251, 259-60, 394 N.W.2d 905, 908 (1986). The Informing the Accused form made it clear that refusing a test
was not a “‘safe harbor,’ free of adverse consequences.” See id. at 255, 394
N.W.2d at 906.
If
Lois were uncertain as to the consequences of his refusal to take the blood
test, he could have asked. His claim
that he believed he had already suffered the penalty of his earlier refusal is
disingenuous; Maus had not yet presented Lois with the intent to revoke form
which outlines the penalties of a refusal.
We conclude that because Lois had already consented to tests the
first time Maus read the Informing the Accused form, it was not necessary to
reread the form before requesting the second test. The request by Maus for a blood test, made immediately after Lois
was unable to provide an adequate breath sample, was a request for “one or more
samples of his ... breath, blood or urine.”
See § 343.305(3)(a), Stats. Lois' “narrow reading of the statute ignores
the language and policy of the statute as a whole.” See Pawlow, 98 Wis.2d at 705, 298 N.W.2d at
222.
Lois
finally argues that he was denied his constitutional right to counsel when he
requested an attorney before he would decide whether to consent to a blood
test. Because we conclude that Maus'
requests for breath and blood samples were within the purview of the implied
consent statute, Lois had no right to counsel.
See State v. Neitzel, 95 Wis.2d 191, 200, 289
N.W.2d 828, 833 (1980). The legislature
has elected not to allow a statutory right to counsel prior to testing for
intoxication. See id.
For
all of the foregoing reasons, we affirm.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.