COURT OF APPEALS DECISION DATED AND RELEASED MARCH 5, 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. 95-3192
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
TIMOTHY J. AHLERS,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Taylor County:
DOUGLAS T. FOX, Judge. Reversed.
CANE, P.J. Timothy Ahlers appeals an order revoking
his driving privileges for failure to consent to a breath test. His sole contention is that the record on
appeal is insufficient to support a finding that at the time a chemical test
was requested of him, the arresting officer informed him of the statutory
notices required in § 343.305(4), Stats. This court agrees with Ahlers and therefore
has no alternative but to reverse the order.
The State does not
dispute that it had the burden at the refusal hearing to show that at the time
the arresting officer requested Ahlers to consent to a chemical test, the
officer informed Ahlers of the notices required under § 343.305(4), Stats.[1] The State also agrees that when the officer
fails to comply with the implied consent statute, the driver's license cannot
be revoked. See State v.
Muente, 159 Wis.2d 279, 281, 464 N.W.2d 230, 231 (Ct. App. 1990).
The officer testified at
the hearing that he read to Ahlers Section A, paragraphs one through five of
the standard Informing the Accused form, but the form was never offered into
evidence. Nor did the officer state
what the information in the form contained.
Consequently, there is no testimony that Ahlers was advised of anything
other than that portions of a standard form were read to him; the record
contains no evidence as to what the "standard" form contained.[2] As a result, this court on appellate review
cannot determine whether the oral notices given to Ahlers complied with
§ 343.305(4), Stats.
Although the trial court
may have been correct that the officer advised Ahlers of the required statutory
notices, the record on appeal is barren of what was read to Ahlers. This court can only speculate what was read
to Ahlers, but should not and will not speculate. What appeared obvious to the district attorney is not obvious on
the record. Merely testifying that
portions of a form were read says nothing unless that form is made part of the
State's proof. Therefore, this court
reluctantly reverses the order.
By the Court.—Order
reversed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.
[1]
Section 343.305(4), Stats.,
provides:
Information. At the time a chemical test specimen is
requested under sub. (3)(a) or (am), the person shall be orally informed by the
law enforcement officer that:
(a) He or she is deemed to have
consented to tests under sub. (2);
(b) If testing is refused, a motor
vehicle owned by the person may be immobilized, seized and forfeited or
equipped with an ignition interlock device if the person has 2 or more prior
suspensions, revocations or convictions within a 10-year period that would be
counted under s. 343.307(1) and the person's operating privilege will be
revoked under this section;
(c) 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, the person's operating privilege will be suspended under
this section and a motor vehicle owned by the person may be immobilized, seized
and forfeited or equipped with an ignition interlock device if the person has 2
or more prior convictions, suspensions or revocations within a 10-year period
that would be counted under s. 343.307(1); and
(d) After submitting to testing, the person tested has the right to have an additional test made by a person of his or her own choosing.