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COURT OF APPEALS DECISION DATED AND RELEASED March 6, 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. 95-3207
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ROGER F. LEWIS,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Sheboygan County:
GARY LANGHOFF, Judge. Affirmed.
SNYDER, J. Roger
F. Lewis appeals from an order of revocation for refusing to submit to a
chemical test of his breath. Lewis
contends that § 343.305(4)(c), Stats.,
requires that he be specifically informed at the time the test is requested
that he was “driving or operating a motor vehicle.” Because he was not so informed, he complains that his statutory
rights were violated and the revocation must be vacated. We disagree and affirm the revocation order.
The facts are not
disputed. On July 21, 1995, Lewis was
arrested for drunk driving in the Village of Kohler. He was transported to the Sheboygan County Sheriff's Department
where the Informing the Accused form was read to him. The Informing the Accused form did not include a specific
statement that Lewis was “driving or operating a motor vehicle.” He refused to submit to a chemical test of
his breath and requested a hearing on the reasonableness of his refusal. The trial court found his refusal
unreasonable and ordered his license revoked.
Lewis appeals from that order.
Whether Lewis was
properly advised of his rights under § 343.305(4), Stats., concerns the construction and application of a
statute. The application of a statute
to undisputed facts is a question of law that we review de novo. Gonzalez v. Teskey, 160 Wis.2d 1,
7-8, 465 N.W.2d 525, 528 (Ct. App. 1990).
In construing § 343.305(4), we are to give effect to the intent of the
legislature. State v. Wilke,
152 Wis.2d 243, 247, 448 N.W.2d 13, 14 (Ct. App. 1989). We ascertain legislative intent by first
looking to the language of the statute itself and giving the language its
ordinary and accepted meaning. Id.
at 247-48, 448 N.W.2d at 14. A person
who is requested to submit to a chemical test under the implied consent law
must be informed of the information contained in § 343.305(4). Wilke, 152 Wis.2d at 251, 448
N.W.2d at 16.
Lewis contends that he
was wrongly denied specific information required by the implied consent law
under § 343.305(4)(c), Stats.,
which reads:
(4) 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:
....
(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) .... [Emphasis added.]
Because the Informing
the Accused form read to Lewis failed to include the phrase “driving or
operating a motor vehicle,” he contends that the form and procedure are fatally
defective. He argues that Village
of Elm Grove v. Landowski, 181 Wis.2d 137, 143, 510 N.W.2d 752, 754‑55
(Ct. App. 1993), mandates the inclusion of this language. In that case we said, “[T]he safest and
surest method [of compliance with the requirements of § 343.305(4), Stats.,] is for law enforcement
officers to advise OWI suspects of all warnings, whether or not they
apply to the particular suspect, and to do so in the very words of the implied
consent law. This suggestion is nothing
more than what the statute requires on its face.”[1] Landowski, 181 Wis.2d at 143,
510 N.W.2d at 754‑55. Lewis'
argument is that because the words “driving or operating a motor vehicle” are
present in § 343.305(4)(c), the words must be included in the Informing the
Accused form.
The State submits that
the Landowski language is dicta and that State v. Piskula, 168 Wis.2d 135, 140-41, 483
N.W.2d 250, 252 (Ct. App. 1992), holding that warnings not in full compliance
with the statute may still constitute substantial compliance, is the
controlling law. Lewis responds that
the Landowski language is not dicta and requires that the
language in § 343.305(4)(c), Stats.,
should be interpreted as mandatory.[2]
We do not see the issue
presented as one that turns upon whether the subject language is mandated by Landowski
or is a substantial compliance question under Piskula. We are not bound by the issues as framed by
the parties. See Saenz v.
Murphy, 162 Wis.2d 54, 57 n.2, 469 N.W.2d 611, 612 (1991), overruled
on other grounds, 167 Wis.2d 1, 481 N.W.2d 476 (1992).
Our reading of §
343.305(4), Stats., satisfies us
that the language in subsec. (c), “driving or operating a motor vehicle,”
relates to a statutory prerequisite to requesting a chemical test, rather than
to advice concerning the consequences of taking or refusing the test. Lewis' analysis focuses on just one of the
subsections of § 343.305(4). We are
satisfied that subsection (a) is relevant to a proper analysis of this question
and must be read in conjunction with subsection (c).
Section 343.305(4)(a), Stats., requires that a test subject be
informed that “[h]e or she is deemed to have consented to tests under sub.
(2).” Section 343.305(2) provides in
relevant part:
Any person who ... drives or operates a motor vehicle
upon the public highways of this state ... is deemed to have given consent to
one or more tests of his or her breath, blood or urine, for the purpose of
determining the presence or quantity in his or her blood or breath, of alcohol
.... [Emphasis added.]
Both subsections (2) and
(4)(a) of § 343.305, Stats.,
are subsumed in paragraph one of the Informing the Accused form read to Lewis:
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.
Applying the implied
consent law logically, we conclude that the specific language Lewis seeks to
have included in the Informing the Accused form is not necessary, and further,
that even if we were to conclude that it was mandatory, the substance of the
language is covered in paragraph one of the form. Repeating the words “driving or operating a motor vehicle” later
in the Informing the Accused form is redundant, meaningless and unnecessary.
We are mindful of Lewis'
contention that because the legislature includes the “driving or operating a
motor vehicle” language in § 343.305(4)(c), Stats., it must have intended that those words be read to the
test subject. However, a review of
recent changes to this ever-evolving law undermines this argument and supports
our analysis.
Prior to 1993, §
343.305(4)(c), Stats., included
the chemical test information for both (1) driving or operating motor
vehicles and (2) driving or operating commercial motor vehicles. The penalties differed and the phrase
“driving or operating” merely preceded the classification of whether the motor
vehicle was commercial so that the correct advice would be provided to the test
subject.
In 1993, § 343.305,
Stats., subsec. (4)(c) was
amended to apply only to driving or operating a motor vehicle, and subsec. (4m)
was created to apply to driving or operating a commercial motor vehicle.[3] We are satisfied that the descriptive words
“driving or operating” had been used to differentiate between the two types of
motor vehicle licenses at issue under subsec. (4)(c). However, after the 1993 change, the language was superfluous to
the purpose of that subsection.
In sum, the implied
consent law is predicated on the individual's driving or operating a motor
vehicle. Lewis was informed by
paragraph one of the Informing the Accused form that he was deemed to have
consented to the chemical tests under the implied consent law. That statement incorporates and satisfies
the statutory prerequisite of § 343.305(4)(c), Stats., that Lewis was “driving or operating a motor
vehicle.” Because the Informing the
Accused form read to Lewis complied with the implied consent law requirements
in this case, we affirm.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] This Landowski language was “suggested in dicta” in the earlier case of State v. Geraldson, 176 Wis.2d 487, 496-97, 500 N.W.2d 415, 419 (Ct. App. 1993), where we held that the officer's failure to advise a commercial operator of the commercial warnings was fatal even where the operator was not operating a commercial vehicle at the time of the arrest. Id. at 494‑95, 500 N.W.2d at 418.