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Defects in notice about right to request refusal hearing didn’t excuse untimely filing of request

State v. Sidney H. Sawicky, 2013AP1335, District 3, 11/19/13; court of appeals decision (1-judge; ineligible for publication); case activity

Village of Elm Grove v. Brefka, 2013 WI 54, 348 Wis. 2d 282, 832 N.W.2d 121, held that the 10-day limit for requesting a refusal hearing set out in § 343.305(9)(a)4. and (10)(a) is mandatory and cannot be extended, even due to excusable neglect. In this case the defendant unsuccessfully argues Brefka shouldn’t apply to his case because of the defects in the notice about the right to request a refusal hearing.

On June 5 Sawicky was cited for OWI 1st. Because he refused to submit to a chemical test he was given a notice of intent to revoke his license, which told him he had 10 days from the date of the notice to file a request for a refusal hearing. Because he was charged with a first offense, the notice directed him to file the request in the same municipal court where he was to appear on that charge. (¶¶2-3).  But a few days later, the officer discovered Sawicky had two priors, so he voided the citation for OWI 1st and, on June 7, issued a new citation for OWI 3rd that directed Sawicky to appear in circuit court instead of municipal court. On June 14 the officer filed a revised notice of intent to revoke in circuit court; that notice still referred to the June 5 refusal date, but it directed Sawicky to file a request for a refusal hearing in circuit court instead of municipal court. (¶¶3-4). Sawicky didn’t get this notice. (¶18).

Because he failed to file a request for a refusal hearing in either municipal or circuit court, his license was revoked on June 20. (¶5). He finally filed a request in circuit court on July 5, and argued the court had competency to hold a refusal hearing because: 1) the June 5 notice violated due process, as it was defective for telling him to file his request in the wrong court; and 2) voiding the OWI 1st citation also voided the original notice of intent to revoke, requiring a new notice to be issued to him. (¶¶6, 12). The court of appeals rejects these claims:

¶13      The fundamental requirements of procedural due process are notice and an opportunity to be heard. City of S. Milwaukee v. Kester, 2013 WI App 50, ¶13, 347 Wis. 2d 334, 830 N.W.2d 710. Here, the notice Sawicky received on June 5 informed him that his driver’s license was subject to revocation, that he had ten days to request a hearing on the revocation, and that, if he failed to request a hearing within ten days, his license would be revoked. Although the notice of intent to revoke directed Sawicky to make his hearing request to the municipal court instead of the circuit court, this error does not amount to a violation of Sawicky’s right to due process because, as the circuit court found, Sawicky never requested a hearing from any court within the statutory time limit. Because Sawicky was given notice and an opportunity to be heard, his due process rights were not violated.


¶17      The fact the officer did not issue a separate citation for Sawicky’s violation of the implied consent law does not mean the notice of intent to revoke his driver’s license became linked to, or dependent on, the continued validity of the first-offense OWI citation. An implied consent law violation is different from an OWI violation—the offenses fall under two different statutory schemes and the State’s ability to pursue one is not dependent on the continued validity of the other. See Wis. Stat. §§ 343.305, 346.63see also State v. Brooks, 113 Wis. 2d 347, 356, 359-60, 335 N.W.2d 354 (1983) (“Those who refuse may still be convicted of OWI after a trial, but even if they are not, they face revocation … for the refusal.”). The officer’s act of voiding and reissuing the OWI citation did not automatically void the notice of intent to revoke Sawicky’s driver’s license. The June 5 notice of intent to revoke remained valid and a new notice did not need to be created and served on Sawicky.

Sawicky makes other arguments (also rejected): That the officer didn’t serve the entire notice (the trial court found the notice was complete) (¶¶14-15); that the revised notice filed in the circuit court was invalid because it wasn’t served on him and was “backdated” to June 5 (the argument was not made below, and in any event the revised notice didn’t prevent Sawicky from filing a timely request in municipal court) (¶¶18-19); that his emails to the municipal prosecutor and police constituted a request for a refusal hearing (they make no mention of the refusal, do not ask for a hearing, and weren’t filed with the court) (¶20); and that the confusion about when and where to file the request should excuse his late filing (Brefka put paid to excusable neglect) (¶¶21-22).

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