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Challenges to implied consent law and refusal go nowhere

Village of Lomira v. Phillip N. Benninghoff, 2020AP31, District 4, 10/15/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Benninghoff tries to raise a bevy of challenges to the implied consent law and to the revocation of his driving privileges for refusing a blood draw. His challenges are forfeited because he failed to file a timely request for a refusal hearing and, in any event, the arguments aren’t suitably developed or are foreclosed by State v. Levanduski, 2020 WI App 53.

Benninghoff didn’t request a refusal hearing within 10 days as required by § 343.305(9)(a)4. and (10)(a), which means the circuit court lacked competency to address the propriety of the refusal, Village of Elm Grove v. Brefka, 2013 WI 54, 348 Wis. 2d 282, 832 N.W.2d 121. Instead, starting about a month after his arrest, he filed a series of motions with steadily evolving arguments that essentially claim the implied consent law violates the Fourth Amendment in light of Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019), and Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), and that 10-day refusal hearing request rule is inconsistent with South Dakota v. Neville, 459 U.S. 553 (1983). He also claimed the implied consent law couldn’t apply to him because he wasn’t driving on a pubic highway, but in an open field. (¶¶3-12).

This was all too little, too late:

¶14      First, … all of Benninghoff’s “open fields” defense-based arguments could go nowhere. This is because, regardless of the merits of this potential defense, he forfeited the chance to offer it by failing to timely request a refusal hearing. ….

¶15     [Second], as best I can discern from Benninghoff’s thinly developed arguments on appeal, [Levanduski] significantly undermines the balance of the arguments that he now attempts to make regarding U.S. Supreme Court precedent. …. Benninghoff’s entire set of constitutional arguments purport to rest on U.S. Supreme Court precedent that [Levanduski] characterized differently than Benninghoff does. …. The specific context in Levanduski differs from the context here. Nevertheless, the court explained that the Neville opinion established that “‘a person suspected of drunk driving has no constitutional right to refuse to take a blood-alcohol test,’” and that the Birchfield opinion “reiterated the lawfulness of implied-consent laws that impose ‘civil penalties and evidentiary consequences’ on motorists who refuse to submit to a blood draw.” Levanduski, 948 N.W 2d 411, ¶¶7, 12. At a minimum, Benninghoff fails to show how these summaries of the U.S. Supreme Court cases that serve as the sole basis of his arguments could be consistent with the positions that he now takes. …. In short, if there is a meritorious argument to be made on these potentially complex topics, Benninghoff has not begun to make it.

¶16     Third, the circuit court had a reasonable basis to reject the motion for a refusal hearing on the vague grounds offered and Benninghoff failed to provide a reasonable basis to grant relief from judgment, initially or on reconsideration, based on the undeveloped grounds offered. ….[O]ur supreme court explained in Brefka that the legislature has established a firm ten-day limit to circuit court competency, and the circuit court appropriately treated this rule as its starting point for analysis.

¶17     Expanding on this last point, … Benninghoff failed time and again to present developed and potentially meritorious arguments to the circuit court, both regarding circuit court competency and constitutional law—indeed, even the very notion that he was purporting to raise any constitutional challenge. ….

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