State v. Carl J. Opelt, 2013AP1798, District IV, 12/27/13 (1-judge decision, ineligible for publication); case activity.
Police arrested Opelt for OWI. While transporting him to the hospital, an officer asked him 14 times to submit to an evidentiary chemical test of his blood. The circuit court found that Opelt refused to promptly submit to the test and thus revoked his operating privileges pursuant to implied consent law, Wis. Stat. §343.305.
Opelt admits he never gave an unqualified “yes” to the officer but also notes that he did not resist the test. The court of appeals was not impressed. Every time Opelt suggested that his answer might be “yes,” the officer asked a clarifying question, and Opelt “made a sport” out of dodging it. Says the court of appeals: “It is obvious that Opelt was trying to make a game out of not giving the officer the unambiguous answer that the officer made clear he needed in order to complete the Informing the Accused form.” Slip op., ¶9. The court of appeals thus held that the circuit court did not err in finding that Opelt gave equivocal answers that amounted to a refusal to submit to testing.
The court of appeals also held that the circuit court did not err as a matter of law. Even if Opelt made some statements that, considered in isolation, suggested an intent to submit to testing, his conduct (game playing) amounted to a refusal. See State v. Rydeski, 214 Wis. 2d 101, 106, 571 N.W.2d 417 (Ct. App. 1997) and State v. Reitter, 227 Wis. 213, 595 N.W.2d 646 (1999).