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Error in the “Informing the Accused” form doesn’t help drivers accused of OWI

State v. Scott W. Heimbruch, 2019AP1857, District 4, 9/24/20, (recommended for publication); case activity (including briefs)

When an officer arrests a driver either for OWI or for causing death or great bodily harm without suspicion of OWI and requests a chemical test, he must read  the driver the legislatively prescribed “Informing the Accused” form. See §343.305(3) and (4). The form describes the potential penalties the driver faces for refusing the chemical test. In 2017, the Wisconsin Supreme Court declared that the form’s information for drivers accused of causing death or great bodily harm without suspicion OWI was inaccurate. See State v. Blackman, 2017 WI 77, ¶¶5, 38, 377 Wis. 2d 339, 898 N.W.2d 774. Unfortunately, the legislature has never bothered to change the form.

A sheriff stopped Heimbruch’s vehicle after seeing it cross the center line into a lane of oncoming traffic. Heimbruch had glassy eyes and slurred speech and smelled of alcohol. He also failed field sobriety tests. When he refused a chemical test, the sheriff read him the Informing the Accused form. The part of the form pertaining to Heimbruch’s situation was accurate. The part pertaining to drivers who are not suspected of OWI was inaccurate, due to legislative inaction.

At his refusal hearing, Heimbruch moved to dismiss the notice of intent to revoke his license because the Informing the Accused form contained inaccurate information about drivers who are not accused of OWI. The circuit court ruled in his favor, but the court of appeals reversed because the inaccurate information did not apply to Heimbruch.

The court of appeals’ decision hinged on Washburn Cnty. v. Smith, 2008 WI 23, ¶51, 308 Wis. 2d 65, 746 N.W.2d 243, which identified two lines of cases addressing challenges to the information provided by law enforcement officers to drivers who refuse to submit to chemical tests. One line of cases holds that if the officer fails to provide the information required by §343.305(4), then the driver’s operating provisions may not be revoked. See e.g. State v.Wilke, 152 Wis. 2d 243, 448 N.W.2d 13 (Ct. App. 1989).

The other line of cases holds that if the officer provides the statutorily required information and additional, incorrect information, then the driver must prove by a preponderance of the evidence that the additional information caused him to refuse the chemical test. See e.g. County of Ozaukee v. Quelle, 198 Wis. 2d 269, 542 N.W.2d 196 (Ct. App. 1995)(additional information accurate); State v. Ludwigson, 212 Wis. 2d 871, 569 N.W.2d 762 (Ct. App. 1997)(additional information in accurate).

The court of appeals held that Heimbruch’s situation did not fall within either line of cases. Rather, the sheriff accurately informed Heimbruch of the “actual, proper statutory procedures” that applied to him, which is all the law requires. Opinion, ¶34.

Heimbruch also argued that the court of appeals should rule for him and impede the State’s ability to prosecute suspected drunk drivers in order to “light a fire under the legislature” since it had not updated the Informing the Accused form. Because he cited no law to support this request, the court of would not consider the argument. Opinion, ¶35.

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