Madland asserted that he requested an alternative chemical test under § 343.305 and that the officer who read the “informing the accused” form to him misled him as to his right to request an alternative test. The court of appeals rejects the claims in light of the circuit court’s fact findings.
If a person submits to the so-called “primary” chemical test offered by the police, he or she must be permitted upon request to take an additional test provided by the agency or must be allowed a reasonable opportunity to obtain a test of his or her choice, at his or her expense. § 343.305(5)(a). The additional test option affords the person an opportunity to verify or challenge the result of the primary test. State v. Schmidt, 2004 WI App 235, ¶12, 277 Wis. 2d 561, 691 N.W.2d 379. Police must inform persons subject to the requested chemical testing of their options by reading to them the ‘informing the accused” form prescribed in § 343.305(4). While the request for an additional chemical test may be made before or after the primary test is administered, a person may not request a primary test different than the one offered by the police. Schmidt, 277 Wis. 2d 561, ¶¶11, 31.
Madland’s first argument is that he “made an express request for alternative testing,” but that assertion is inconsistent with the facts the circuit court actually found:
¶19 …. Rather, the court reasonably found that prior to the blood test, Madland had been requesting a different type of test be used as the primary test because he did not want to be stuck with a needle. The court further found that Madland did not request an additional test after his blood had been drawn. When [Deputy] Shields asked Madland if he wanted an additional test, Madland merely stated “What’s the point?” The court found that the only reasonable interpretation of his statement was that it was a reference to Madland’s prior comment of not wanting to be stuck with a needle. Thus, Madland never requested an additional test. The court’s factual findings are supported by the record, and they are therefore not clearly erroneous.
Madland’s second argument is that any failure to ask for an alternative test was due to the deputy’s misleading statements about testing that went beyond the “informing the accused” form. Madland makes two of the three showings under Washburn County v. Smith, 2008 WI 23, 308 Wis. 2d 65, 746 N.W.2d 243, and County of Ozaukee v. Quelle, 198 Wis. 2d 269, 542 N.W.2d 196 (Ct. App. 1995), but fails on the third, which required him to make a showing that there was a “causal connection” the misleading statements and his failure to assert his right to an additional test. (¶25). That is a matter of fact the circuit court resolved against Madland:
¶26 The circuit court found that Madland’s failure to request an additional test was not due to any misleading additional information by Shields, and we conclude this finding of fact is not clearly erroneous. The record clearly supports the court’s finding. The court expressly found that Shields was a credible witness and Madland an incredible witness. Consequently, it acknowledged that Shields could have better explained that his requests for Madland to take a blood test were a designation of the blood test as the primary test. Nonetheless, the court found that Madland had been requesting a different primary test because he did not want to be stuck with a needle. The court explained that “nowhere” in the context of all the evidence presented to the court did it appear that Madland told Shields he wanted an additional test so that he could compare its result with the blood test’s result—which is the purpose behind the implied consent statute’s authorization of an additional test. See Schmidt, 277 Wis. 2d 561, ¶12. In fact, the court expressly rejected Madland’s testimony that he had been requesting an additional test to compare results.