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Wrong return address on notice of intent to revoke license doesn’t undo refusal revocation

County of Door v. Donald L. McPhail, 2017AP1079, 5/30/18, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

When McPhail was arrested for first-offense OWI, he refused a blood test. The arresting officer gave him the notice of intent to withdraw his operating privilege, which told McPhail he had 10 days to request a hearing, and that he should send his request to 1201 S. Duluth Ave in Sturgeon Bay. But that’s the Sheriff’s department, not the clerk of courts, which is at 1205 (though the two are part of the same complex).

A refusal is a civil matter, and the notice of intent is similar to a summons in that it gives the court personal jurisdiction over the recipient. (¶5, citing State v. Gautschi, 2000 WI App 274, ¶8, 240 Wis. 2d 83, 622 N.W.2d 24). If there is a “fundamental” defect in the notice, personal jurisdiction is simply absent, but if the defect is merely technical, the plaintiff can salvage jurisdiction by showing a lack of prejudice. (¶7).

The court finds the address flub to be a technical defect, because the trial court found that, had McPhail actually mailed the form to the listed address, the sheriff’s department would have routed it to the court. (¶10).

It also says McPhail could have found out the true address by delivering the notice in person or looking it up–which seems rather unfair: wasn’t McPhail entitled to rely on the document the plaintiff was using to hail him into court? Is it really the defendant’s burden to correct the plaintiff’s errors in service, i.e. eliminate his own completely valid defense? The court’s first rationale is sound but these grounds are dubious.

The court also finds a lack of prejudice, saying there’s no evidence McPhail tried in any way to request a hearing. (¶11).

But the burden to show lack of prejudice was on the county, not McPhail, as the court acknowledges. Shouldn’t the absence of any evidence either way mean the county hasn’t met this burden?

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