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Circuit court had jurisdiction to order revocation for refusal despite delay in filing notice of intent to revoke

Marquette County v. Thomas J. Wagenaar, 2013AP2454, District 4, 7/3/14 (1-judge; ineligible for publication); case activity

A long delay in filing the notice of intent to revoke after Wagenaar refused a chemical test under § 343.305 didn’t deprive the circuit court of jurisdiction. In addition, police had probable cause to believe Wagenaar was operating a motor vehicle while under the influence of an intoxicant.

A copy of the notice of intent to revoke Wagenaar was left with a nurse at the hospital where he was receiving medical care (and where he was arrested) but the record doesn’t show the document was given to him. (¶3). Moreover, it wasn’t filed with the circuit court until some 15 months after the date of arrest. (¶9 n.2). No matter: Under State v. Moline, 170 Wis. 2d 531, 542, 489 N.W.2d 667 (Ct. App. 1992), the “immediate” preparation and service requirements of § 343.305(9)(a) are directory, not mandatory, so the failure to comply with the requirement does not deprive the circuit court of personal jurisdiction over a defendant. Wagenaar’s attempts to distinguish Moline, where the notice of intent to revoke was filed only two days after the arrest and the defendant was personally served the notice of intent to revoke, are unavailing: “Wagenaar has failed to present this court with a persuasive argument that those factual differences between the present case and Moline … affect the precedential effect Moline has in this case, …” (¶10).

As to probable cause:

8        In the present case, Sergeant Williams found Wagenaar at the scene of an accident involving a motorcycle, Sergeant Williams observed the odor of intoxicants on Wagenaar’s person, and Wagenaar admitted that he had been drinking. I conclude that under the lower standard required at a refusal hearing, where the circuit court “need only be persuaded that the State’s account is plausible,” this information was sufficient to lead a reasonable police officer to believe that Wagenaar was operating a motor vehicle under the influence of an intoxicant. See [State v. Wille, 185 Wis. 2d 673,] 681[, 518 N.W.2d 325 (Ct. App. 1994)].

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