COURT OF
APPEALS DECISION DATED AND
RELEASED March
14, 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. 95-1996
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
RODNEY
C. BURKINS,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Rock County: JAMES E. WELKER, Judge. Affirmed.
SUNDBY,
J. Rodney C. Burkins appeals from an
order revoking his operating privileges for refusing to consent to a chemical
test to determine his blood alcohol content, as required by § 343.305(2), Stats.[1] He claims that the arresting officer failed
to give him notice of the consequences of his failure to consent because he did
not inform him that he could lose his commercial operating license if he did
not consent. We reject his claim
because he has not shown that he was injured by that failure. We conclude that proof that Burkins had a
commercial operator's license at the time of his arrest was a defensive matter
which he had to show.
Burkins
relies on Ozaukee County v. Quelle, 542 N.W.2d 196 (Wis. Ct. App.
1995). However, the court there held
that an operator attacking a law enforcement officer's failure-to-inform had to
show: (1) that the officer
misstated the warnings, and, (2) that the officer's failure "impacted
his or her ability to make the choice available under the law." Id. at 199. Burkins has not made the latter showing.
Burkins
also claims that the arresting officer misinformed him as to what would happen
if he refused to submit to a breath or blood test. The officer told him that if he refused, "he would be
revoked, that ... if they take the test and whether they pass or fail it, they
are given a 30-day temporary driving receipt.
If he did not take it, he would be given the notice of intent to revoke
operating privileges." Burkins
does not argue that this was a misstatement of the law, but he contends that
the officer confused him because he thereupon gave him the administrative
suspension form which is only given to an operator who takes a breath or blood
test and fails. In context, Burkins
could not have been confused as to the consequences of his failure to submit to
a chemical test by being informed as to the consequences if he did take the
test. Burkins cannot complain that he
was given too much information unless he showed that he thereby became
confused. He has not made that showing.
Burkins
complains, however, that the trial court denied him the opportunity to show
that he was confused when it cut off his cross-examination of the arresting
officer. Burkins did not make an offer
of proof and thus we cannot conclude that Burkins would have elicited testimony
relevant to the question of his understanding of the consequences of
refusal. He now tells us that he would
have shown "that no refusal can exist under the law where there is an
Implied Consent test warranting an administrative suspension of operating
privileges." This, however, is a
question of law which Burkins could not have answered. His counsel presented that argument to the
trial court and has presented the same argument to us. While we agree that a refusal cannot exist
if the operator submits to a chemical test, Burkins had already been informed
that he would suffer consequences if he did not submit to a chemical test. He was informed that his operating
privileges would be administratively suspended. We conclude that Burkins was properly informed as to his
responsibilities under the Implied Consent Law and the consequences if he chose
not to fulfill those responsibilities.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.