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Court rejects challenge to strict application of 10-day deadline for requesting refusal hearing

State v. Hector Miguel Ortiz Martinez, 2017AP668, District 1, 12/27/17 (one-judge decision; ineligible for publication); case activity (including briefs)

After his arrest for OWI, Martinez refused to submit to a breath test. The arresting officer gave him the standard notice of intent to revoke operating privileges containing the standard written warning that the driver has 10 days to request a refusal hearing. Martinez requested a refusal hearing, but not within the 10-day limit under § 343.305(10)(a), so the circuit court declined to hold a hearing. (¶¶3-5). Martinez argues that a language barrier and incomplete information from the arresting officer mean the standard notice he was given was not legally sufficient to start the 10-day clock running. Yes it was, says the court of appeals.

The 10-day time limit is a mandatory requirement and may not be extended. Village of Elm Grove v. Brefka, 2013 WI 54, ¶4, 348 Wis. 2d 282, 832 N.W.2d 121. In the face of that strict rule, Martinez argues that the 10 days doesn’t start running till he had actual notice, and the language barrier and inadequate information from the officer meant he didn’t have actual notice at the time the officer gave him the notice of intent to revoke. (¶¶5, 12). He asks for an evidentiary hearing on whether the officer reasonably complied with the dictates of the implied consent law, relying on two cases that address whether an officer adequately and reasonably conveyed the implied consent warnings to a driver. State v. Piddington, 2001 WI 24, 241 Wis. 2d 754, 623 N.W.2d 528 (involving a deaf driver); State v. Begicevic, 2004 WI App 57, 270 Wis. 2d 675, 678 N.W.2d 293 (involving a driver with minimal English language skills). But the officer’s explanation mattered in those cases because the driver was trying to suppress the results of the test to which he submitted. Those cases don’t change the statutory deadline in any way and don’t create a threshold evidentiary issue about whether the officer’s explanation was good enough to trigger the deadline. (¶¶13-15).

Martinez also cites a footnote in State v. Bentdahl, 2013 WI 106, ¶34 n.10, 351 Wis. 2d 739, 840 N.W.2d 704, that left open the possibility that “factual circumstances” may arise that made a request within 10 days “impossible.” But having left the door open to such an argument, Bentdahl says nothing that allows a circuit court to avoid applying the 10-day rule. In any event, Martinez has presented no evidence that it was impossible for him to file a request within 10 days. (¶16).

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