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Judicial Competence to Proceed; OWI – Refusal Hearing, Time Limit

Village of Menomonee Falls v. Jesse Schaefer, 2010AP2485, District 2, 5/18/11

court of appeals decision (1-judge, not for publication); for Schaefer: James A. Gramling, Jr.; case activity

¶4        As a threshold matter, we address the Village’s contention that the municipal court lacked competency to proceed on Schaefer’s Wis. Stat. § 806.07 motion to reopen.  Whether a court has lost competence to proceed presents a question of law that we review de novo.  Village of Trempealeau v. Mikrut, 2004 WI 79, ¶7, 273 Wis. 2d 76, 681 N.W.2d 190.  A court’s competence refers to the ability of a court “to adjudicate the particular case before [it].” Id., ¶9.  Courts have routinely held that the failure of a party to act within a statutorily mandated time limit results in the court’s loss of competence to hear the specific case before it.  See, e.g., Green Cnty. DHS v. H.N., 162 Wis. 2d 635, 656, 469 N.W.2d 845 (1991); see also Miller Brewing Co. v. LIRC, 173 Wis. 2d 700, 706, 495 N.W.2d 660 (1993).  “[A] court’s loss of power due to the failure to act within statutory time periods cannot be stipulated to nor waived.”  Green Cnty., 162 Wis. 2d at 657.

Under the implied consent law, § 343.305, refusal to provide a breath sample on OWI arrest results in automatic revocation of driving privileges, subject to a hearing which must be requested by the driver within 10 days, § 343.305(9)(a)4. Failure to request a hearing within the deadline deprives the municipal court of competency to order the hearing, ¶6.

The court separately (in a discussion that appears to be dicta given its conclusion about lack of competency to proceed) concludes that Schaefer failed to establish either excusable neglect for missing the deadline or a meritorious defense to the refusal. Thus, a motion to reopen under § 806.07(1)(a) wasn’t supported.

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