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Driver’s refusal of blood test held unreasonable despite evidence that he didn’t understand his rights

County of Eau Claire v. Scott S. Mahler, 2014AP1696-FT, 3/31/15, District 3 (1-judge opinion; ineligible for publication) click here for docket and briefs

Mahler, who was arrested for OWI, refused to consent to a chemical test of his blood. The court of appeals found his refusal unreasonable even though the arresting officer failed to have Mahler sign the “Informing the Accused” form and Mahler testified that he did not understand the information on it.

The State may revoke the license of a person who refuses to submit to a chemical test for intoxication only if the State adequately informed the person of his rights before he refused.  Washburn County v. Smith, 2008 WI 23, ¶51, 308 Wis. 2d 65, 746 N.W.2d 243. Officer Holbrook testified that he read the “Informing the Accused form” verbatim to Mahler, but neglected to ask whether Mahler understood it. Mahler didn’t ask any questions, but he testified that he didn’t understand the form. Holbrook testified that Mahler did understand the form. The trial court found Holbrook more credible.

In accordance with Wilke, a circuit court considers whether an officer failed to inform the accused in substantial compliance with Wis. Stat. § 343.305(4) . . . Here, Holbrook testified, and the court accepted as credible, that he read the Informing the Accused form verbatim.  That is all that is required.  Slip op. ¶14.

Further, in response to Mahler’s argument that Holbrook failed to comply with Wis. Stat. § 343.305(4) because of his alleged failure to sign the Informing the Accused,[4] we note:

The statute … only requires arresting officers to inform defendants orally about the law; it does not mandate written completion of the form, and it does not obligate officers to fill out the form in any particular manner.  Where officers fulfill the essential statutory requirements, substantial compliance is not fatal to an officer’s execution of the implied consent statute.

State v. Reitter, 227 Wis. 2d 213, 233, 595 N.W.2d 646 (1999) (citing Wilke, 152 Wis. 2d at 250). Slip op. ¶15.

Finally, we reiterate that the circuit court’s determination of whether the implied consent warnings have been reasonably conveyed is not subjective, nor dependent on the driver’s perception of the information.  Piddington, 241 Wis. 2d 754, ¶21 . . . Neither Holbrook nor the circuit court was required to assess Mahler’s subjective comprehension of the warnings . . . Slip op. ¶16.

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