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Reading old implied consent form didn’t taint admissibility of blood test results

State v. Lawrence A. Levasseur, Jr., 2013AP2369-CR, District 4, 2/6/14; court of appeals decision (1-judge; ineligible for publication); case activity

The arresting officer used an implied consent form that pre-dated the 2009 amendments to § 343.305, so it omitted language about accidents involving death or serious injury–language that did not apply to Levasseur’s situation. The use of the outdated form didn’t strip the resulting blood test result of its statutory presumption of admissibility and accuracy, applying State v. Piskula, 168 Wis. 2d 135, 483 N.W.2d 250 (Ct. App. 1992), and distinguishing Washburn County v. Smith, 2008 WI 23, 308 Wis. 2d 65, 746 N.W.2d 243:

¶22      In Smith, the court explained that the analysis for cases in which an officer fails to provide statutorily required information to a defendant is different than the analysis for cases in which an officer provides additional information beyond what is statutorily required to the defendant. Smith, 308 Wis. 2d 65, ¶72. In the former, fail-to-provide scenario, the Smith court stated, courts should apply the analysis from State v. Wilke, 152 Wis. 2d 243, 448 N.W.2d 13 (Ct. App. 1989). The Smith court read Wilke to stand for the proposition that “there cannot be substantial compliance with [Wis. Stat.] § 343.305(4) when the law enforcement officer fails to give the defendant the statutorily required information about penalties.” Id., ¶75. Failure to provide statutorily required information about penalties that apply to the defendant is easily distinguishable from the omission at issue in this appeal. Thus, I see nothing inconsistent in the SmithWilke, and Piskula decisions, and, under the logic of Piskula, the officer who read Levasseur the Informing the Accused substantially complied with the requirements of § 343.305(4).

The officer also had probable cause to ask Levasseur to provide a PBT, even though he did not doubt Levasseur’s account that the accident was due to a flat tire and testified he was “on the edge of suspicion” about Levasseur’s impairment. The officer’s subjective assessment is irrelevant, State v. Kutz, 2003 WI App 205, ¶12, 267 Wis. 2d 531, 671 N.W.2d 660, and even assuming that a flat tire contributed to the accident, an objective view of the facts allows for the inference that impairment might have played a role or increased its severity. (¶¶14-17).

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