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OWI — Implied Consent, Driver’s Request for Additional Test, §§ 343.305(4) and (5)

State v. James A. Schmidt, 2004 WI App 235
For Schmidt: Daniel S. Diehn

Issue: Whether § 343.305(5)(a) requires that the driver request an additional test after the police have administered the primary test and, if not, whether Schmidt’s pre-blood draw request for a breathalyzer was properly rejected.

Holding:

¶11. Although Wis. Stat. § 343.305(4) and (5) use the term “alternative test,” it is clear from these provisions that the accused does not have a right to choose a test instead of the one the officer asks him or her to take; rather, the “alternative test” is in addition to that test. It is for this reason that the case law sometimes refers to the “alternative test” as the “second” or “additional” test. See, e.g., State v. Piddington, 2001 WI 24, 51, 241 Wis. 2d 754, 623 N.W.2d 528 (“second, alternative test”); State v. Renard, 123 Wis. 2d 458, 460, 367 N.W.2d 237 (Ct. App. 1985) (“additional test”). We will use the term “additional test” in this opinion.

.…

¶31. Although we agree with Schmidt that Wis. Stat. § 343.305(5)(a) does not impose a timing requirement on the request for an additional test, we do not agree that he was therefore entitled to an additional test. The circuit court found that Schmidt repeatedly requested a breathalyzer test “rather” than a blood test: indeed, this was the wording of Schmidt’s testimony as well as the officer’s. The circuit court also found Schmidt did not request a breathalyzer test after he took the blood test. Based on these factual findings, we conclude as a matter of law that Schmidt did not request a test in addition to the blood test. The repeated requests Schmidt made before taking the blood test were for a breathalyzer test instead of the blood test, not in addition to the blood test; and, based on the circuit court’s findings, Schmidt made no later request.

¶32. Because Schmidt did not request a test in addition to the blood test, the officer did not violate Wis. Stat. § 343.305(5)(a) by not giving him a breathalyzer test after the blood test. Therefore, although we have arrived at a different construction of the statute than did the circuit court, we affirm the circuit court’s denial of Schmidt’s motion to suppress the results of the blood test.

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