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Arresting officer provided accurate information regarding implied consent law

State v. Victor J. Godard, 2014AP396-CR, District 4, 8/28/14 (1-judge; ineligible for publication); case activity

The arresting officer provided Godard with accurate information about the implied consent law and thus did not cause Godard to refuse to submit to the implied consent blood test or deny him his right to a second test.

Applying the three-part test for the adequacy of the implied consent information provided by the police, County of Ozaukee v. Quelle, 198 Wis. 2d 269, 380, 542 N.W.2d 196 (Ct. App. 1995), and Washburn County v. Smith, 2008 WI 23, ¶56-57, 308 Wis. 2d 65, 746 N.W.2d 243, the court rejects Godard’s claim he was provided erroneous information about his right to a second chemical test if he consented to a blood draw:

21      As to the first prong, the transcript of the recorded arrest shows that Deputy Micale informed Godard of his right to a secondary test by reading him the “Informing the Accused” form verbatim. Micale also reiterated several times, in accordance with Wis. Stat. § 343.305(4), that if Godard wanted a secondary test of his choosing rather than the free intoxilyzer test offered by the State, then Godard would need to make those arrangements at a later time. Micale also told Godard that Micale would not transport Godard to an alternative hospital. The circuit court found that Micale exceeded his duty under § 343.305(4) by providing additional information, and the parties do not contest that finding….

22      The second prong of the Quelle inquiry requires that this court “examine the specific facts and determine if this additional information was false or otherwise misleading.” Quelle, 198 Wis. 2d at 282. Under this second prong, “‘misleading’ is synonymous with ‘erroneous.’” Smith, 308 Wis. 2d 65, ¶68 n.60, ¶56 n.43. Upon review of the record, I agree with the circuit court’s conclusion that the additional information provided by Deputy Micale was not false or misleading. Micale accurately informed Godard that he would not be transported to another hospital of his choosing. See State v. Vincent, 171 Wis. 2d 124, 128, 490 N.W.2d 761 (Ct. App. 1992) (“Nothing in the language of subsec. (2) of sec. 343.305, Stats., imposes a duty upon the agency to transport the accused to the site of the test facility chosen by the accused.”). Micale also accurately told Godard that he would have to make the arrangements for the secondary test of his choosing later. See Vincent, 171 Wis. 2d 129 (holding that the agency must promptly process the accused to afford the accused a “reasonable opportunity” to obtain an alternative test within three hours except under certain circumstances when that is not possible). 

Because the officer did not make any false or misleading statements to Godard, the court doesn’t address the third prong (whether the failure to properly inform the driver affected his ability to make a choice about chemical testing). (¶24).

Godard’s alternative argument—that his blood was drawn in violation of Missouri v. McNeely, 133 S. Ct. 1552 (2013)—is foreclosed by State v. Reese2014 WI App 27, 353 Wis. 2d 266, 844 N.W.2d 396 (applying the good-faith exception to the exclusionary rule to warrantless blood draws performed in reliance on pre-McNeely case law).  

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