State v. Luke T. Nirmaier, 2011AP1355-CR, District 3, 12/28/11
The odor of alcohol on Nirmaier following a traffic accident resulting in substantial bodily injury triggered the implied consent law, notwithstanding absence of probable cause to arrest at that point:
¶9 Wisconsin Stat. § 343.305(3) outlines different scenarios in which an officer may invoke the implied consent law and request a chemical test of an individual’s breath, blood, or urine. Although an officer normally invokes the implied consent law after arresting an individual for an alcohol or drug related operating offense, see Wis. Stat. § 343.305(3)(a), an officer may also invoke the implied consent law before arrest in limited, specified circumstances, see e.g., Wis. Stat. § 343.305(3)(am), (ar). Subdivision 343.305(3)(ar)1., which was enacted on March 15, 2010 and became effective on March 30, 2010, allows an officer to request a chemical test before arrest if an individual is involved in an accident that causes substantial bodily harm to a person and the officer detects the presence of alcohol or drugs. See 2009 Wis. Act 163; see also Wis. Legislative Council Act Memo for 2009 Wis. Act 163 (April 19, 2010), available at https://docs.legis.wisconsin.gov/2009/related/lcactmemo/sb303.pdf.
Not quite clear just what Nirmaier was arguing, which if nothing else diminishes whatever persuasive value the opinion might have. That is, the court of appeals noted that “he fails to explain how” the statute had been “misapplied,” therefore hadn’t adequately briefed the issue, ¶11. Additionally, Nirmaier failed to respond to the State’s contention that probable cause for OWI arrest wasn’t required in this context, and thereby conceded the point, ¶12. In other words, the issue (probable cause to arrest is required as a constitutional matter before the implied consent law is triggered?) was neither sharpened nor joined.
Separately: counsel admonished because his brief “failed to provide citations to the record in his statement of the facts and failed to provide a recitation of Wis. Stat. § 343.305(3)(ar)1.,” footnote 2. Basic stuff, really, but mentioned here as a reminder, should one be necessary, that the court of appeals briefing protocols to be observed fully. The sanction, incidentally, could have been worse than an admonition.