COURT OF APPEALS DECISION DATED AND RELEASED October
4, 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. 95-1638-FT
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
PATRICIA
L. KARCH,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Manitowoc County: DARRYL W. DEETS,
Judge. Reversed.
SNYDER,
J. Patricia
L. Karch appeals from an order revoking her driving privileges. The sole issue is whether her refusal to
sign a hospital consent form constituted a refusal to submit to chemical
testing under § 343.305, Stats.,
the implied consent statute. We
conclude that the State does not have the authority under this statute to deem
an individual's unwillingness to sign a hospital consent form before taking a
blood test a refusal. Accordingly, we
reverse.
Karch
was stopped by Officer Michael Stone of the Manitowoc police department for
allegedly operating a motor vehicle while under the influence of an
intoxicant. After her arrest, Karch was
transported to the Holy Family Memorial Medical Center, and there the Informing
the Accused form was read to her. Stone
asked Karch to submit to a blood test, and she agreed. Subsequent to this agreement but prior to
the actual blood draw, Stone asked Karch to sign a hospital consent form.[1] According to the officer, Karch refused to
sign the hospital form, but stated that she was not refusing the blood
test. Following departmental policy,
Stone filled out a Command for Hospital Testing form. Shortly thereafter, the blood sample was obtained without
resistance. Nevertheless, Stone treated
the matter as a refusal to submit to chemical testing, and Karch was given
refusal paperwork.
A
hearing was held on the reasonableness of Karch's refusal. The court found that the contents of the
consent form were innocuous and determined that Karch's declining to sign the
hospital consent form was properly deemed a refusal under § 343.305, Stats.
This appeal followed.
The
question before this court is whether Karch refused to submit to a blood test
when she refused to sign a hospital consent form prior to the blood being
drawn. This issue requires the
application of the implied consent statute to a set of undisputed facts. This presents a question of law which we
review independently of the trial court.
Gonzalez v. Teskey, 160 Wis.2d 1, 7-8, 465 N.W.2d 525, 528
(Ct. App. 1990).
Section
343.305(2), Stats., requires any
person so requested to submit to a blood, breath or urine test in order to
determine the presence and/or quantity of alcohol, controlled substances or a
combination thereof. The individual has
one obligation after arrest—to submit to a chemical test if requested. See § 343.305(9).
If
an individual is deemed to have refused to take a test, the person may request
a hearing on the refusal under § 343.305(9)(a)4, Stats. The issues at
the hearing are limited to the following:
1)Whether
there was probable cause to arrest the defendant;
2)Whether
the defendant refused to permit the test;
3)Whether
the officer complied with § 343.305(4), Stats.,
which requires the reading of the Informing the Accused form;
4)Whether there was a medical reason for the defendant's
refusal.
See §
343.305(9)(a)5.a-c. The supreme court
has stated that the issues at a refusal hearing are strictly limited to these
four and no more. State v.
Nordness, 128 Wis.2d 15, 26, 381 N.W.2d 300, 304 (1986).
Applying
Nordness, we conclude that the State was without power to impose
as a condition precedent the signing of a hospital consent form. Such a form, required by a third party, is
instituted solely to protect the hospital from liability arising from the
failure to obtain consent before treating an individual. This form is the creation of the hospital,
not the legislature. As is clear from
the record, the Manitowoc police department has a procedure for dealing with an
individual's refusal to sign a hospital consent form.[2] This procedure allows for the timely
collection of the blood sample regardless of the individual's willingness to
sign the hospital form.
It
should be noted that the facts elicited at the refusal hearing do not suggest
that Karch was at all uncooperative after her arrest, other than her refusal to
sign the hospital consent form.[3] When asked by the officer to submit to
chemical testing, Karch acquiesced.
When presented with the hospital consent form, Karch declined to sign
any paperwork, but reiterated that she was not refusing the blood test. Karch was cooperative when the blood sample
was drawn.
We
conclude that without any other evidence of refusal to submit to the requested
blood test, Karch's failure to sign the hospital consent form cannot be
considered a refusal under § 343.305, Stats. Therefore, we reverse.
By
the Court.—Order reversed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[1] This form was one
Holy Family Memorial Medical Center required an individual to sign before a
blood sample could be taken.
[2] The Manitowoc
police department has a policy that if an individual on second or subsequent
OWI offenses refuses to submit to a blood test, the officer fills out a Command
for Hospital Testing form, which requires the hospital to do the test because
the “exigency of the requested test is so great that a delay would result in
the loss or destruction of the evidence sought thereby.”
[3] On appeal, the
State argues that since Stone testified that he had to ask Karch “four or five
times” whether she would take the blood test, that delay constituted a
refusal. The State cites State v.
Neitzel, 95 Wis.2d 191, 289 N.W.2d 828 (1980), for this
proposition. Neitzel,
however, referenced “delay” only in the context of conferring with
counsel. See id.
at 197, 289 N.W.2d at 832. The record
is clear that any initial delay was countenanced by Stone. Additionally, Stone testified that when
Karch declined to sign the hospital consent form, “I told her that since she
was refusing to sign the form, we would have to treat this as a refusal ....”