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Wisconsin Supreme Court: Discretionary authority to dismiss refusal charges is limited to cases in which defendant pleads guilty to underlying OWI

State v. Brandon H. Bentdahl, 2013 WI 106, reversing an unpublished court of appeals decision; opinion for a unanimous court by Justice Crooks; case activity

In State v. Brooks, 113 Wis. 2d 347, 348-49, 335 N.W.2d 354 (1983), the supreme court held that a circuit court has discretionary authority to dismiss a refusal charge under § 343.305 after the defendant has pleaded guilty to the underlying OWI. In this case, the court limits that discretionary authority to cases in which the defendant pleaded guilty, reversing the court of appeals’ extension of Brooks to cases in which the defendant is acquitted at trial:

¶28  The purpose of Wisconsin’s implied consent statute is to encourage drivers, upon a request by law enforcement, to submit to chemical testing. [Brooks, 113 Wis. 2d] at 348. This allows for the efficient gathering of evidence that may be used to secure drunk-driving convictions. Id.State v. Neitzel, 95 Wis. 2d 191, 203, 289 N.W.2d 828 (1980).

¶29  Having established the purpose of the implied consent statute, to secure OWI-related convictions, our reasoning in Brooks then turned to whether this purpose was met when a defendant had already pleaded guilty to the underlying OWI charge at the time of his or her refusal hearing. Brooks, 113 Wis. 2d at 353-57. We found “[i]f the person who is charged with OWI . . . subsequently pleads guilty, there no longer remains a need for penalties for failure to submit to a test which has become unnecessary in the particular case.” Id. at 348-49.

¶30  The reasoning in Brooks did not broadly grant discretionary authority to circuit courts. See id. at 359. Instead the specific reasoning in Brooks was tied to the fact that the defendant pleaded guilty to the underlying OWI charge by the time of his refusal hearing, which he timely requested. See id.  In Brooks, this court repeatedly reasoned that the purpose of the implied consent statute, to gather evidence to convict drunk drivers, was served when the defendant pleaded guilty to the underlying OWI charge. Id. In Brooks we stated:

Accordingly, we conclude that the general purpose behind the laws relating to operating while under the influence of intoxicants and implied consent to take alcohol tests—to get drunk drivers off the road as expeditiously as possible and with as little possible disruption of the court’s calendar—is best served by the exercise of discretion in the dismissal of a refusal case once there has been a plea of guilty to the OWI charge.

Id.

Though it limits the applicability of Brooks, the court declines the state’s invitation to overrule the decision because it “is longstanding precedent that fosters plea agreements in OWI and OWI-related cases.” (¶35).

The court also establishes a second prerequisite for a court’s authority to dismiss a refusal charge: The defendant must have complied with the statutory time limit for requesting a refusal hearing. Failure to make a timely request means license revocation commences under the refusal statute, § 343.305(9)(a)4. and (10)(a), and Village of Elm Grove v. Brefka, 2013 WI 54, 348 Wis. 2d 282, 832 N.W.2d 121 (the time limit for requesting a refusal hearing is mandatory and cannot be extended); thus, absent a timely request the court has no authority to dismiss a refusal charge. (¶¶32-34). (The court says it recognizes there might be “factual circumstances” that make requesting a refusal hearing or entering a guilty plea “impossible,” but it doesn’t decide whether the court would still have discretionary authority to dismiss the refusal under those circumstances. (¶34 n.10).)

Two other points to note. First, Bentdahl argued the state shouldn’t have been allowed to petition for review because the court of appeals decision was not adverse to the state under Rule 809.62(1g)(a) and (b) and (1m)(a). The court of appeals did grant some relief to the state, as it reversed the circuit court’s dismissal of the refusal proceeding based on a defect in notice to Bentdahl about the deadline for requesting a refusal hearing. (¶¶12-14). (Bentdahl didn’t cross-petition on that issue, so it’s not before the supreme court. (¶6).) But under the rules it’s sufficient if the court of appeals decision was partially adverse to the state, and here it was, as it ordered the case remanded for the circuit court to exercise discretion under Brooks even though the state argued Brooks didn’t apply and requested that a refusal judgment and order should be entered against Bentdahl. (¶21).

Second, the court makes a point of saying they are not addressing the validity of the warrantless blood draw from Bentdahl, which occurred before the decision in Missouri v. McNeely, 133 S. Ct. 1552 (2013). The application of McNeely to searches occurring before that case was decided must wait for another day.

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{ 1 comment… add one }
  • wm. tyroler December 27, 2013, 3:34 pm

    The adverse decision holding on a somewhat obscure but potentially recurrent appellate problem is a bit of a mixed bag. The holding: the COA’s Bentdahl decision “denied the State the full relief that it sought; therefore, the State may appeal.” (Para. 21.) That is, although the State did prevail on the principal issue — Bentdahl was given proper notice re: refusal — the COA remand for further hearing on the purely procedural matter of discretionary dismissal denied “full relief” to the State. Hence, the decision was (at least partially) “adverse” the State, a prerequisite for supporting a PFR. The court cites State v. Castillo, 213 Wis. 2d 488, 570 N.W.2d 44 (1997) for clarification of “adverse” decision, namely: “an adverse decision does not result merely because the court of appeals determined that certain issues were unnecessary to reach.” (Footnote 8.) Any clarification offered by Castillo would be more by way of contradistinction. Briefly: Castillo sought specific performance of a plea-bargain and, as a less-preferred alternative remedy, plea-withdrawal. The COA declined to reach specific performance and ordered plea-withdrawal. Castillo, then, despite not getting what he primarily sought, couldn’t claim harm because the COA simply skipped over his principal claim. As the court put it: “¶ 11. Castillo did not receive an adverse decision regarding his claims of improper placement and inadequate resources, because the court of appeals made no decision on those issues. Those issues were not addressed and denied; rather, the court found it wholly unnecessary to reach them.” It’s a bit odd that a result may or may not be “adverse” depending on whether the COA is inclined to discuss a particular issue, but that seems to be the operative principle. The problem, then, is that in the appropriate case the appellate attorney will have to closely consider relinquishing a fall-back position or, perhaps, developing an anticipatory argument that harm would accrue notwithstanding its adoption. On the other hand, the denial-of-full-relief test does offer a broad view of “adverse decision” — hence, a mixed bag.

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