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OWI – Implied Consent Law – Alternative Chemical Test

State v. James W. Keith, 2003 WI App 47, PFR filed 3/5/03
For Keith: Christopher A. Mutschler

Issue/Holding:

¶10 WISCONSIN STAT. § 343.305(5)(a) requires police to offer an alternative chemical test to persons who submit to a chemical test under § 343.305 and who request an alternative test.

¶12 The record shows that after Keith’s arrest, while traveling to the hospital, Keith asked the officer “if there were any tests that I could be taking.” The officer told Keith he was being taken to the hospital for a blood test. This exchange provides no indication that Keith found the officer’s response unsatisfactory or that Keith was requesting a test different than the one he was told would be administered at the hospital.

¶13 Keith also contends that Officer Ziorgen’s failure to read the entire “Informing the Accused” form to him constituted a failure to properly inform Keith of his right to request an alternative test. We reject Keith’s argument. Officer Ziorgen testified that he read the entire form to Keith. Keith testified that the officer read only part of the form. The circuit court believed Officer Ziorgen. We affirm that credibility finding because we cannot say that Officer Ziorgen’s testimony on this point is “inherently or patently incredible.” See State v. Daniels, 117 Wis. 2d 9, ¶17, 343 N.W.2d 411 (Ct. App. 1983). To the contrary, the record contains no reason to doubt the officer on this topic.

 

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