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COA: Driver does not have right under implied consent statute to refuse blood test when driver proposes to take breath or urine test.

City of Mequon v. Schumacher, 2023AP2411, 7/3/24, District II (one-judge decision; ineligible for publication); case activity

COA determines person suspected of driving under the influence does not have right under implied consent statute, Wis. Stat.  § 343.305, to refuse blood test if the person offers to take a breath or urine test instead.

John Schumacher appealed from the circuit court’s judgment that he unlawfully refused chemical testing of his blood when requested by a Mequon police officer.  He argued at the refusal hearing under Wis. Stat. § 343.305(9) and on appeal that the officer did not have probable cause to arrest him for operating a motor vehicle while under the influence and that the officer should have honored his request to a test other than blood (he offered to submit to a breath or urine test).

The court of appeals affirmed.  Regarding probable cause, the court noted that the City’s burden is “substantially less” at a refusal hearing than at a suppression hearing and the City need only show that the officer’s account is “plausible.”  (¶ 18).  The court concluded that the City established probable cause that Schumacher was under the influence of alcohol in combination with another drug in light of: 1) the arresting officer knew Schumacher drove a vehicle that ran into a stationary light pole; 2) Schumacher did not know where the accident occurred or the extent of the substantial damage to his vehicle; 3) the officer smelled intoxicants on Schumacher and observed that he had glassy and bloodshot eyes; 4) Schumacher failed half of the field-sobriety tests; and 5) Schumacher’s PBT was .037.  The court concluded: “Essentially, because Schumacher appeared to be more impaired than a person with a .037 blood alcohol reading normally would be, the officer rationally concluded that other substances were likely contributing to his impairment.”  (¶ 22).

Schumacher also argued that he did not refuse to “permit the test” for purposes of § 343.305(9)(a)5.c. because he was willing to take a breath or urine test.  The court determined it was bound by State v. Krajewski, 2002 WI 97, where the Supreme Court held that law enforcement, not the OWI suspect, is authorized to decide which test will be administered to a suspect:  “This court will not vest drivers who have been arrested for operating under the influence with the authority to veto constitutional searches to vindicate their personal choice in police procedure.”  (Id. at ¶ 43).

Because the officer had probable cause to suspect Schumacher of driving under the influence of a combination of drugs and alcohol, the court concluded, the officer did not act unreasonably in obtaining a warrant for a blood draw and Schumacher did not have a right to refuse to submit to the blood test under Wisconsin’s implied consent statute. (¶ 31).

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