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OWI – Informed Consent, Hearing Impaired Driver

State v. Michael S. Piddington, 2001 WI 24, 241 Wis. 2d 754, 623 N.W.2d 528, affirming State v. Piddington, 2000 WI App 44, 233 Wis.2d 257, 607 N.W.2d 303
For Piddington: Michelle Ann Tjader

Issue: Whether BAC results were suppressible because the profoundly deaf defendant could not have heard the implied-consent law recitation of rights.

Holding:

¶1 … We hold that § 343.305(4) requires the arresting officer under the circumstances facing him or her at the time of the arrest, to utilize those methods which were reasonable, and would reasonably convey the implied consent warnings. In determining whether the arresting officer has used reasonable methods which would reasonably convey the necessary information in light of the pertinent circumstances, the focus rests upon the conduct of the officer. We thus agree with that part of the circuit court’s findings that “the attempts of law enforcement to communicate with the defendant were reasonable under all the circumstances, perhaps even exemplary . . . .” (R. at 28:1-2.) The law enforcement officers here used reasonable methods to convey the required implied consent warnings, and, accordingly, we affirm the court of appeals. The test results should not have been suppressed.

Piddington argues that he was entitled to an ASL interpreter, because ASL is his primary form of communication; the state argues (and the court of appeals agreed) that the officer need only “orally inform” an arrestee of rights and responsibilities under the implied consent law. The supreme court rejects both positions, sort of. As the court says, prior cases discuss what, while this case concerns how, information must be conveyed. Analogy to Miranda warnings is partially helpful:

¶22. Despite the significant distinction between Miranda and implied consent warnings, they share the common purpose of informing the accused. Considering that similarity, we conclude that whether law enforcement officers have complied with Wis. Stat. § 343.305(4) turns on whether they have used reasonable methods which would reasonably convey the warnings and rights in § 343.305(4). As in Miranda-type cases, the State has the burden of proof of showing, by a preponderance of the evidence, that the methods used would reasonably convey the implied consent warnings. See Santiago , 206 Wis. 2d at 19. Also, in the implied consent setting, as well as in the Miranda setting, the onus is upon the law enforcement officer to reasonably convey the implied consent warnings. See id.

The emphasis, then, is on the officer’s efforts, not the driver’s comprehension. And while those efforts must be genuine, they therefore needn’t be demonstrably successful:

¶28. … The State cannot be expected to wait indefinitely to obtain an interpreter and risk losing evidence of intoxication. Such would defeat, rather than advance, the intent of the implied consent law “to facilitate the gathering of evidence against drunk drivers in order to remove them from the state’s highway.” Zielke, 137 Wis. 2d at 46. The approach we adopt today only ensures that barriers which may affect the arresting officer’s ability to reasonably convey the implied consent warnings to an accused driver, such as one with impaired hearing, are taken into account and accommodated as much as is reasonable under the circumstances.”

For fact-specific reasons, the officer’s efforts here were reasonable. ¶¶29-32. Nor, in any event, would suppression necessarily be the appropriate remedy even if these efforts had been unreasonable. ¶¶ 34-35. (This observation is equally applicable to Piddington’s separate argument that he was improperly denied an alternative test. ¶¶51-54.) The court goes on to reject due process, equal protection, and ADA challenges. ¶¶ 37-49.

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