COURT OF APPEALS DECISION DATED AND RELEASED FEBRUARY 13, 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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2082
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
NICKOLAS G. CARLSON,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Marathon county:
VINCENT K. HOWARD, Judge. Affirmed.
LaROCQUE, J. Nickolas Carlson, arrested for OWI,
contends that the court erred by concluding that Carlson failed to consent to a
blood test under Wisconsin's implied consent law, § 343.305, Stats.
Carlson refused the hospital's demand that he sign a written
authorization for the withdrawal of blood but was otherwise willing to submit
to the medical procedure. This court
affirms.
A Wausau police officer
arrested Carlson for OWI, took him to
the police station and read him the standard form informing him of the
consequences of refusal. Carlson then
agreed to furnish a breath sample.
Apparently because Carlson is a heavy smoker, he could not provide an
adequate breath sample. He therefore
consented to the officer's request for a blood sample. Taken to the Wausau Hospital, Carlson
presented his extended arm to the nurse so that blood could be withdrawn. He refused several times, however, to accede
to the nurse's request that he first sign a hospital authorization. Carlson offered no physical resistance, but
indicated he would not sign an authorization without speaking to his
attorney. Because hospital policy
required its employees to obtain a written consent unless the officer ordered
the nurse to withdraw the blood "involuntarily," the parties reached
an impasse. The officer did not order
the nurse to proceed, and Carlson did not sign the form. The officer then treated Carlson's refusal
to sign the consent as a refusal to take the test under § 343.305, Stats.
Carlson points to the
language of § 343.305(5)(a), Stats.,
providing: "If the person submits
to a test under this section, the officer shall direct the administering of the
test." He suggests that when
Carlson held out his arm to allow blood to be withdrawn, the officer was
thereby compelled to direct the hospital technician to proceed with the taking
of a blood sample. The essence of
Carlson's claim that he did not refuse the test is the absence of a statutory
requirement directing the subject to give a written consent to the
proffered test.
Our supreme court held
in a seminal case interpreting the implied consent law:
The
defendant relies upon sec. 343.305, Stats.,
and argues that the procedure set forth therein was not followed by the police
in this case. ... [T]he implied consent
law ... was intended to facilitate the taking of tests for intoxication and not
to inhibit the ability of the state to remove drunken drivers from the highway. In light of that purpose, it must be liberally
construed to effectuate its policies.
Scales
v. State, 64 Wis.2d 485, 493-94, 219 N.W.2d 286, 291-92 (1974)
(emphasis added).
In furtherance of this
policy of liberal construction, the cases have held that even the accused's
statutory right to counsel when in custody give way to this liberal
construction of the implied consent law.
Thus, an accused has no right to prior counseling on the question
whether a person in custody should give his consent to testing or refuse to
submit to testing. State v.
Neitzel, 95 Wis.2d 191, 205, 289 N.W.2d 828, 835 (1980).
We have also noted in
context of examining whether an accused has refused to take an OWI test:
A
refusal results because "[i]t is the reality of the situation that must
govern, and a refusal in fact, regardless of the words that accompany it, can
be as convincing as an express verbal refusal.
Village
of Elkhart Lake v. Borzyskowski, 123 Wis.2d 185, 192, 366
N.W.2d 506, 509 (Ct. App. 1985) (quoting Beck v. Cox, 597 P.2d
1335, 1338 (Utah 1979)).
When comparing the
hospital's legitimate concern for documentary proof that its physical intrusion
into the subject's body was consensual is compared with the minimal imposition
upon the accused to provide that proof by signing a consent, this court concludes
that the legislature intended that a person "submit" to providing his
signature. To construe the statute
otherwise would be inconsistent with the purpose of the legislation as
established by Scales and many subsequent decisions. By
the Court.—Judgment affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.