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OWI – Informing the Accused

Columbia County v. Mark Devos, 2010AP2349, District 4, 5/19/11

court of appeals decision (1-judge, not for publication); for Devos: Rex Anderegg; case activity

The DOT Informing the Accused form that was read to Devos contained language beyond that specified in § 343.305(4): “In addition, under 2003 Wisconsin Act 97, your operating privileges will also be suspended if a detectable amount of a restricted controlled substance is in your blood.” (This information must be provided to an accused pursuant to § 343.305(8).) Devos argues that DOT thereby effectively amended § 343.305(4) without legislative authorization, thus violating separation of powers. The court rejects the argument.

¶9        In Wis. Stat. § 343.305(4), the legislature set forth the language that a law enforcement officer must read to an individual accused of driving under the influence of an intoxicant.  However, the statute does not restrict the information that must be read to an accused to that which is specified in subsection (4).  Nor does the statute mandate the written form in which the information specified in subsection (4) must be disseminated, nor that it be provided in a written form at all.

¶10      Accordingly, I conclude that the DOT has not amended Wis. Stat. § 343.305(4) in violation of the separation of powers doctrine by generating a form which includes the information required to be read to an accused by that section, as well as the information required to be provided to an accused by § 343.305(8).

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