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Finding of improper refusal upheld

State v. Nathan Alan Bise, 2017AP1662, District 4, 1/24/19 (one-judge decision; ineligible for publication); case activity (including briefs)

Bise raises three challenges to the finding he improperly refused a breath test. The court of appeals rejects them all.

Bise’s main argument is that there wasn’t a sufficient factual basis to find he refused a test. In response to the officer’s request for a breath sample, Bise said he wanted to give a blood sample instead; he claimed in the circuit court that the officer didn’t make it clear enough that his insistence on giving a blood sample would as a refusal of the breath sample. This goes nowhere because the officer testified he specifically told Bise that if he didn’t’ give a breath sample, it would count as a refusal. (¶¶7, 9). While Bise now argues there can’t be a refusal as long as he picks one of the three test options, that argument wasn’t made below and there’s no authority for it. (¶¶11-12).

Bise also claims he wasn’t allowed to present a defense because the circuit court ruled before giving Bise the chance to testify. This is both forfeited and belied by the record. (¶¶8, 13-14).

Finally, there was ample probable cause to justify the request for a breath sample: Bise was stopped at 2:50 a.m.; his car went over the lines marking the travel lanes five times; the officer had to knock on the window to get Bise’s attention after he stopped; there was an odor of alcohol from inside the car; Bise had trouble producing his license and avoided eye contact, though the officer eventually saw he had red and bloodshot eyes; Bise admitted he had “two drinks;” and he partially failed the field sobriety tests. He also spoke in a slow and slurred manner, though the officer eventually realized Bice has a speech impediment—a realization that the officer didn’t think misled him regarding signs of intoxication. (¶¶3-6, 15-17).

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