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County of Fond du Lac v. Nancy C. Bush, 2012AP1486, District 2, 10/31/12

court of appeals decision (1-judge, ineligible for publication); case activity

Under the implied consent law, a motorist must, when properly requested to submit to a chemical test, answer “promptly,” State v. Neitzel, 95 Wis. 2d 191, 205, 289 N.W.2d 828 (1980), else failure to respond will be construed as refusal.

¶6        Bush is correct that in some of the past cases in which a driver’s conduct was enough to constitute “refusal,” the conduct went beyond mere silence to a more affirmative verbal or physical lack of cooperation—e.g., State v. Rydeski, 214 Wis. 2d 101, 571 N.W.2d 417 (Ct. App. 1997) (driver asks to use the bathroom just as the twenty-minute observation period ends, and despite the officer’s repeated requests that he submit to the test); Village of Elkhart Lake v. Borzyskowski, 123 Wis. 2d 185, 190-91, 366 N.W.2d 506 (Ct. App. 1985) (officer “could hear and feel air escaping from around the mouthpiece” and saw no deep breath being taken, despite repeated instructions about blowing “deep lung air” into the mouthpiece).

¶7        But affirmative acts of noncooperation take many forms.  Silence alone can be an affirmative act of noncooperation in a given case.  Here, the deputy … did not know exactly how long they sat in silence, but testified that it “could have been a few minutes.”  A reasonable police officer in the same position as the deputy could conclude that Bush was being noncooperative by her silence.

¶9        This is not to say that the deputy had no discretion to answer Bush’s question or allow her to take the test after all, when she volunteered to do so upon realizing that her refusal meant she would be held in jail for twelve hours.  Rather, he had no obligation to do so.  She, on the other hand, did have an obligation; that was to answer promptly.  Compare Reitter, 227 Wis. 2d at 231-32 (“[W]e see no harm in allowing the officer to state briefly that the right to counsel does not attach to the implied consent setting.  That said, we do see harm in transforming a common courtesy into an affirmative duty judicially superimposed on a legislative scheme.”).  The legislative mandate to cooperate “promptly” with the testing is virtually[2] absolute, and her prolonged silence alone constituted refusal under the facts of this case.

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