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COURT OF APPEALS DECISION DATED AND RELEASED January 30, 1996 |
NOTICE |
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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. 95-2770-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
BRETT M. TRENTER,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
TIMOTHY G. DUGAN, Judge. Affirmed.
WEDEMEYER, P.J.[1] Brett M. Trenter appeals from an order
revoking his operating privilege for unlawfully refusing to submit to chemical
testing under Wisconsin's implied consent law.
See § 343.305, Stats. Trenter claims that the trial court erred in
reaching this conclusion because the “Informing the Accused” form that was read
to him did not contain specific language required by § 343.305(4)(c), Stats.
Because there was substantial compliance with the requirements of the
statute, this court affirms.
I. BACKGROUND
The facts relevant to
this case are undisputed. On
May 10, 1995, at approximately 2:06 a.m., while operating his motor
vehicle in the city of Milwaukee, Trenter was arrested for Operating a Motor
Vehicle While Under the Influence of an Intoxicant, contrary to
§ 346.63(1)(a), Stats. The “Informing the Accused” form was read to
him. He refused to submit to a chemical
test of his breath. Trenter requested a
hearing on the reasonableness of his refusal, which was held on
September 22, 1995. Following the
hearing, the trial court resolved all issues adverse to Trenter and entered the
order from which Trenter now appeals.
II. DISCUSSION
The interpretation of a
statute and its application to a set of undisputed facts presents a question of
law that this court reviews de novo.
State v. Wilke, 152 Wis.2d 243, 247, 448 N.W.2d 13, 14
(Ct. App. 1989).
Trenter claims that the
“Informing the Accused” form which was read to him was defective because it did
not contain the language: “and was driving or operating a motor vehicle.” This language appears in the following
section of the statute:
At
the time a chemical test specimen is requested..., the person shall be orally
informed by the law enforcement officer that:
If one or more tests are taken and the results of any test indicate that
the person has a prohibited alcohol concentration and was driving or
operating a motor vehicle, the person will be subject to penalties.
Section
343.305(4), Stats. (Emphasis added.) The form read to Trenter in this case stated:
1. You are deemed under
Wisconsin's Implied Consent Law to have consented to chemical testing of your
breath, blood or urine at this Law Enforcement Agency's expense. The purpose of testing is to determine the
presence or quantity of alcohol or other drugs in your blood or breath.
2. If you refuse to submit to
any such tests, your operating privilege will be revoked.
3. After submitting to
chemical testing, you may request the alternative test that this law
enforcement agency is prepared to administer at its expense or you may request
a reasonable opportunity to have any qualified person of your choice administer
a chemical test at your expense.
4. If you take one or more
chemical tests and the result of any test indicates you have a prohibited
alcohol concentration, your operating privilege will be administratively
suspended in addition to other penalties which may be imposed.
5. If
you have a prohibited alcohol concentration or you refuse to submit to chemical
testing and you have two or more prior suspensions, revocations or convictions
within a 10 year period and after January 1, 1988, which would be counted
under s.343.307(1) Wis. Stats., a motor vehicle owned by you may be equipped
with an ignition interlock device, immobilized, or seized and forfeited.
As
conceded, this form does not contain the precise words “and was driving or
operating a motor vehicle.”
Nevertheless, this court concludes that the form is in substantial
compliance with the implied consent statute, see State v. Piskula,
168 Wis.2d 135, 483 N.W.2d 250 (Ct. App. 1992) and, therefore, affirms the
order revoking Trenter's operating privileges.
Substantial compliance
with the implied consent statute has been accepted as sufficient to uphold a
revocation order if every reasonable objective of the statute has been met. Id. at 140-41, 483 N.W.2d at 252.
The reasonable objective of the implied consent statute is to inform
drivers of their rights and penalties for either refusing to submit to a chemical
test or for submitting to a chemical test which results in a prohibited alcohol
concentration. Id.
In Trenter's case, this
objective was satisfied despite the absence of the precise language quoted
above. “Operating privilege” is
referenced several times within the form read to Trenter. Further, it is clear from the overall
context of the situation that the chemical testing is done for the purpose of
determining whether Trenter was operating his motor vehicle while
intoxicated. Accordingly, this court
concludes that the form read to Trenter was in substantial compliance with the
implied consent statute, and therefore affirms the order.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.