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Deadline for requesting refusal hearing runs from the date the driver — not the court — received notice of intent to revoke

Oconto County v. Robert E. Hammersley, 2013AP1263, District 3, 3/18/14; court of appeals decision (1-judge; ineligible for publication); case activity

The 10-day time period to request a refusal hearing under § 343.305(10)(a) begins when the driver receives a copy of the notice of intent to revoke, not when the court receives a copy. Thus, where a notice of intent to revoke was filed in the circuit court well after the statute’s 10-day time limit had elapsed, the trial court did not err in entering a revocation order without waiting for another 10 days to elapse:

¶10      In this case, the notice of intent to revoke stated Hammersley received the notice on October 28, 1995. Accordingly, Hammersley had ten days after October 28, 1995 to request a hearing. The date the court received its copy of the notice of intent to revoke [December 7, 1995] is immaterial. Once Hammersley failed to request a hearing within ten days [of October 28, 1995], the court was required to revoke Hammersley’s driver’s license, which it did on December 12, 1995. The court did not prematurely enter the default revocation order against Hammersley.

Because a circuit court loses competence to consider a refusal allegation if a defendant fails to request a hearing within ten days, Village of Elm Grove v. Brefka, 2013 WI 54, ¶44, 348 Wis. 2d 282, 832 N.W.2d 121, once Hammersley failed to request a refusal hearing within ten days, the court lost competence to consider any objection to the implied consent law violation and was required to enter a default order revoking Hammersley’s driver’s license. (¶14).

Those dates are not typographical errors: Hammersley filed a motion for relief from the 1995 revocation order in December 2012. (¶4). While the court expresses “serious concerns” about the ability to bring a motion for relief 17 years later (¶13), it resolves the case solely on Hammersley’s failure to file a timely request for a refusal hearing back in 1995.

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