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Temporarily suspending license didn’t preclude state from seeking revocation

State v. Keith D. McEvoy, 2015AP1262, District 4, 12/30/2015 (one-judge decision; ineligible for publication); case activity (including briefs)

Under the facts of this case, the temporary suspension of McEvoy’s license based on his blood alcohol content didn’t equitably estop the State from seeking to revoke his license based on his refusal to submit to a chemical test of his blood.

After being arrested for OWI McEvoy refused a blood test. The police took his blood anyway. Because of his refusal McEvoy was given a notice of intent to revoke his operating privileges under § 343.305(9); McEvoy then made a timely request for a refusal hearing, which was scheduled in conjunction with the OWI proceeding. In addition, McEvoy received a notice of intent to suspend his operating privileges under § 343.305(7) because the blood taken involuntarily had a prohibited alcohol concentration. McEvoy didn’t seek review of the suspension, so his license was suspended for six months. (¶¶2-6).

After learning of the BAC suspension, the prosecutor in the OWI/refusal proceedings contacted DOT and got McEvoy’s license reinstated. McEvoy, for his part, moved to dismiss the refusal proceeding, arguing the doctrine of equitable estoppel precluded the State from seeking revocation of his license based on refusal once it had already suspended the license. (¶¶7-8). The court of appeals rejects McEvoy’s claim.

The elements of equitable estoppel are: (1) action or non-action, (2) by the party against whom estoppel is asserted, (3) which induces reasonable reliance by the other party, and (4) which reliance is to the party’s detriment. Milas v. Labor Ass’n of Wisconsin, 214 Wis. 2d 1, 11-12, 571 N.W.2d 656 (1997). Because it was clear even after the suspension order that the State was seeking revocation based on the refusal, McEvoy can’t establish the “reasonable reliance” element:

17     … McEvoy asserts that he believed the State had “opted” for a six-month suspension instead of a revocation and, therefore, he chose not to challenge the suspension to his detriment. However, such reliance is not reasonable. McEvoy attended the arraignment hearing .., which was after the notice of intent to suspend but before his license was effectively suspended, during which time McEvoy could have sought review of the suspension notice. During that hearing, the parties expressly addressed the refusal action and the court scheduled the refusal hearing …. Thus, McEvoy knew that the State was proceeding with the refusal action to revoke his license … within the time period McEvoy had to seek review of the suspension notice.

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