COURT OF
APPEALS DECISION DATED AND
RELEASED January
11, 1996 |
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. 95-1602
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
BRIAN
R. NACKER,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Dane County: P. CHARLES JONES, Judge. Affirmed..
GARTZKE,
P.J.[1] Brian Nacker appeals from an order revoking
his operating privileges for refusing to submit to chemical testing. The issue is whether a person has refused to
take a test under § 343.305(3)(a), Stats.,
when the person initially said, "No" to taking the test, then changed
his mind, and the officer declined to give the test when the officer could
conveniently have done so. We hold that
the person has refused to take the test and we therefore affirm the order.
Because
the facts are undisputed, the issue is one of law. State v. Williams, 104 Wis.2d 15, 21-22, 310 N.W.2d
601, 604-05 (1981). We resolve such
issues without deference to the trial court's opinion. Ball v. District No. 4 Area Bd.,
117 Wis.2d 529, 537, 345 N.W.2d 389, 394 (1984).
Nacker's
car was stopped. After administering
field sobriety tests, the officer read to Nacker the Informing the Accused
form, and asked him to submit to an intoxilyzer test. He said "yes."
A few minutes later he said he did not want a test. After the intoxilyzer machine was ready to
operate, Nacker was again asked to take the test. He refused a second time.
The officer then filled out the Notice of Intent to Revoke Operating
Privilege form, explained it to Nacker and gave him a copy. Nacker said that he did not know his
operating privileges would be revoked for refusing to take the test. The officer said she had told him about that
when she read the Informing the Accused form to him. He said he forgot and asked to take the test. The officer told him he was not entitled to
another chance and she declined to give him the test. The intoxilyzer equipment had not yet been put away, and we infer
that the officer could easily have acceded to Nacker's belated request to take
the test. We conclude that because
Nacker had refused to take the test, the trial court properly revoked his
operating privilege.
Refusal
hearings are conducted under § 343.305(9), Stats. Subsection
(9)(a) provides that if a person refuses to take a test under sub. (3)(a) the
law enforcement officer "shall immediately take possession of the person's
license and prepare a notice of intent to revoke ... the person's operating
privilege." The issues at the
refusal hearing are limited. One issue
is "whether the person refused to permit the test." Section 343.305(9)(am)5.c.
It
is well-established that where there has been a refusal to permit the test,
[t]here is no obligation upon the law enforcement
authorities to renew the offer to take the test, even though the time within
which the test may be admissible--the two hour period after the arrest--has not
yet expired. The obligation of the
accused is to take the test promptly or to refuse it promptly. If he refuses, the consequences flow from
the implied consent statute.
State v. Neitzel, 95 Wis.2d 191, 205, 289 N.W.2d 828, 835 (1980). "[T]he officer is not under a
continuing obligation to remain available to accommodate future
requests." State v. Stary,
187 Wis.2d 266, 271, 522 N.W.2d 32, 35 (Ct. App. 1994). If error occurred, it was when the officer
failed to "immediately take possession" of his license and prepare a
Notice of Intent to Revoke his operating privilege, as required by § 343.305(9)(a),
Stats., when Nacker first
refused.
Nacker
contends that the purpose of the refusal statute is to encourage testing to
make available scientific evidence of an alcohol concentration so as to
facilitate conviction of the guilty.
Nacker contends the officer therefore should have permitted him to take
the test when he finally asked for it.
It is not accurate, however, to say that the purpose of the law is to
"encourage" testing. The
purpose of the law, insofar as it pertains to refusal hearings, is "to
induce persons to submit" to testing to expedite securing evidence to
determine whether or not a suspected person is intoxicated to a degree
warranting a charge of operating a motor vehicle while under the influence of
an intoxicant. State v. Brooks,
113 Wis.2d 347, 348, 335 N.W.2d 354, 354-55 (1983). The inducement is to suffer revocation as the alternative to
taking the test. The person who
improperly refuses to take the test loses operating privileges for one to three
years, regardless whether he or she has operated a motor vehicle while under
the influence. Section 343.305(10)(b)2
and 4, Stats.
The
officer has no duty to administer the test after the person has refused
it. Whether the officer could
reasonably have acceded to the person's change of mind and given the test after
a refusal is irrelevant at a refusal hearing.
The issues at the hearing are specified in § 343.305(9)(am)5, Stats., and the reasonableness of the
officer's conduct after a refusal is not one of them.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.