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Implied Consent Law, § 343.305(5)(a)

State v. Joe R. Hechimovich, 2010AP2897-CR, District 4, 4/7/11

court of appeals decision (1-judge, not for publication); for Hechimovich: Corey C. Chirafisi; case activity

Compliance with implied consent law found. Although Hechimovich initially requested a breath test, after his blood was drawn at the hospital, the deputy “gave ample opportunity” during a 10-minute period for Hechimovich to renew the request for breath test. The deputy “conclud(ed) that when Hechimovich did not bring it up following his blood test, he had decided against it.” The court holds: “Under these circumstances, the deputy was entitled to conclude that Hechimovich had decided against the breath test by the time the blood draw was completed, and the deputy did not have an affirmative legal duty to question Hechimovich about his implied choice not to travel from the hospital to the jail for the additional test following his release.”

¶27      Hechimovich’s arguments to the circuit court and to this court are not insubstantial, and small facts could make a difference in such circumstances.  For instance, “diligent effort” could not include bullying or intentionally confusing an arrestee on this topic.  Thus, an officer could fall short of the officer’s obligation where there is less than clear agreement between an arrestee and an officer that the arrestee should renew the request if still interested after the primary test.  It might be deficient if an officer were to instruct an arrestee—over an arrestee’s objection, or in another circumstance that failed to achieve a consensual understanding—that the arrestee’s request for an additional test would be operative only if the arrestee renewed the request later.  In such cases, depending on all relevant facts, treating an arrestee’s post-primary test silence as a decision against the additional test might fall short of the “diligent effort” standard. 

¶28      However, the record in this case does not reflect game playing or obfuscation.  It is uncontested that the deputy explicitly and straightforwardly proposed a let-me-know approach, and that Hechimovich went along with that approach, without objecting or expressing confusion.

State v. Schmidt, 2004 WI App 235, 277 Wis. 2d 561, 691 N.W.2d 379; State v. Renard, 123 Wis. 2d 458, 367 N.W.2d 237 (Ct. App. 1985), discussed and distinguished.

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