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Driver’s failure to refuse or submit to a chemical breath test is an unlawful refusal

Washington County v. Kelly L. Springer, 2020AP491, 10/21/20, District 2 (1-judge opinion, ineligble for publication); case activity (including briefs)

After being stopped for a suspected OWI, Springer failed field sobriety tests and his preliminary breath test showed a .18% blood alcohol content. A sheriff read the Informing the Accused form and asked if he would submit to a chemical test of his breath. Springer did not answer even after being asked 6 to 7 times. Then he said: “I already gave you my test.” The sheriff took this to mean “no.” The circuit court held the refusal unlawful under §343.305(9)(a) of Wisconsin’s implied consent law , and the court of appeals affirmed.

Springer first argued that the sheriff did not give him enough time to make a decision about whether to take the test. The court of appeals rejected this point based on State v. Rydeski, 214 Wis. 2d 101, 106, 571 N.W.2d 417 (Ct. App. 1997), where a driver agreed to take the test, then asked to go to the restroom. After being told to wait, the officer asked the driver 5 times to submit to the test but he did not answer. Rydeski held that a driver must promptly take the test or refuse it. The driver’s failure to do either promptly can be deemed a refusal. Opinion, ¶14.

Springer also argued that the sheriff should have tried to clear up his confusion. The court of appeals rejected that point based on County of Ozaukee v. Quelle, 198 Wis. 2d 269, 280, 542 N.W.2d 196 (Ct. App. 1995), abrogated on other grounds by Washburn Cnty. v. Smith, 2008 WI 23, 308 Wis. 2d 65, ¶¶56-57, 746 N.W.2d 243. Opinion, ¶20.

Quell held that an officer has no duty to explain the Informing the Accused form. He just has to read it to the driver. “To hold otherwise would open a Pandora’s box” as a decision as to ‘whether the officer should have aided the confused drover could be litigated in absurdum.’”  Opinion, ¶18 (quoting Quell, 198 Wis. 2d at 281).

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