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COA rejects affirmative defense to refusal

State v. Matthew E. Sullivan, 2023AP2138, 10/19/23, District IV (one-judge decision; ineligible for publication); case activity

Prior to his refusal hearing, Sullivan requested a continuance so he could obtain counsel. The circuit court denied his request. Sullivan then represented himself and challenged the sought after revocation by relying on the affirmative defense that a “physical disability or diseased unreleated to the use of alcohol” caused him to refuse the test. See Wis. Stat. § 343.305(9)(a)5.c. The circuit court rejected Sullivan’s affirmative defense and revoked his license. The court of appeals affirms.

An officer responded to Sullivan’s disabled vehcile on the side of the road. The officer approached Sullivan and smelled a “heavy odor of intoxicants” and administered field sobriety testing. Sullivan showed signs of intoxication and his PBT was more than double the .08 BAC limit. During the encounter, the officer learned that Sullivan was diabetic and had blood sugar levels “in the 300s” for approximately 6 hours. (Op., ¶¶2-3). Regardless, the officer arrested Sullivan and read him the “Informing the Accused” script “at least four to six times.” Sullivan responded “I don’t know” and the officer eventually determined that Sullivan had refused.

At the refusal hearing, Sullivan testified that he couldn’t think straight due to his diabetes-related high blood sugar levels and that he was therefore unable to comprehend the officer’s request. The court found that Sullivan’s refusal to expressly consent or refuse was “evasive” and unlawful.

The court of appeals rejects Sullivan’s reliance on the affirmative defense related to his high blood sugar levels because he failed to show that his refusal “was due to a physical inability to submit to the test.” Reframed by the court of appeals, Sullivan claimed only that his physical disability caused him to not be able to understand the script read by the officer. In other words, the court holds that a physical disability that caused Sullivan to not be able to comprehend his rights or the associated civil penalty for refusing a blood draw is not a “physical inability” to submit to the test. (Op., ¶12).

The court also rejected Sullivan’s claim for another more straight-forward reason: the circuit court “appeared” to not find Sullivan’s testimony credible, based on the circuit court’s characterization of Sullivan’s nonresponses as “evasive.” (Op., ¶13-14).

Next, applying the very deferential standard of review, the court of appeals upholds the circuit court’s denial of Sullivan’s request for a continuance. Important to the court of appeals was the fact that (1) Sullivan waited roughly three weeks before seeking an attorney to represent him at his refusal hearing because he “had not wanted to pay for a lawyer,” (2) that Sullivan did not have a right to counsel, and (3) that the state and the court were prepared to proceed with the hearing. (Op., ¶¶16-22). In short, the court did not erroneously exercise its discretion in denying Sullivan’s request for a continuance.


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