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Equivocating over whether to take a breath test, then agreeing to it, counts as a refusal

State v. Stuart W. Topping, 2018AP318, 2/6/18, District 4 (1-judge opinion, ineligible for publication); case activity (including brief)

You don’t see this very often. Topping, represented by counsel, filed an initial brief. The State never responded. That might have been cause for summary reversal. But here Topping’s challenge to the circuit court’s finding that he refused to submit to a breath test after his arrest for OWI failed even though it was unopposed

A video showed Topping’s interaction with police.  An officer asked him 6 times to submit to a breath test. Topping equivocated and asked lots of questions. The officer read the “informing the accused” cards twice and explained that if Topping refused the test, his licenses would be revoked. After 13 minutes of not not agreeing to take a breath test, the officer marked Topping down as a “refusal.” Opinion, ¶¶8-9.

The circuit court found that Topping’s failure to respond was “tantamount to a no or refusal,” and the court of appeals affirmed.

¶9 . . . It was reasonable for the court to infer from Topping’s extended equivocation and refusal to answer either yes or no in response to Ostrowski’s direct questioning that Topping had refused the test. See Welytok v. Ziolkowski, 2008 WI App 67, ¶27, 312 Wis. 2d 435, 752 N.W.2d 359 (“Where … more than one reasonable inference can be drawn from the credible evidence, we accept the reasonable inference drawn by the circuit court sitting as fact finder.”); Klein-Dickert Oshkosh, Inc. v. Frontier Mortgage Corp., 93 Wis. 2d 660, 663, 287 N.W.2d 742 (1980) (appellate court is bound by the circuit court’s choice among reasonable inferences from credible evidence). See also State v. Brar, 2017 WI 73, ¶133, 376 Wis. 2d 685, 898 N.W.2d 499 (Abrahamson, J., dissenting) (where video recording shows that the defendant was “stalling,” the defendant by his conduct refused to allow the chemical test) (citing State v. Rydeski, 214 Wis. 2d 101, 107, 571 N.W.2d 417 (Ct. App. 1997) (driver’s stalling conduct qualified as refusal)); Village of Elkhart Lake v. Borzyskowski, 123 Wis. 2d 185, 191, 366 N.W.2d 506 (Ct. App. 1985) (driver’s conduct that prevented officer from obtaining accurate breath sample qualified as refusal).

But wait! Some additional facts appear at the end of the decision. Topping never actually refused to submit to a breath test. After 13 minutes of answering Topping’s questions, the officer said that he was going to mark Topping as a “refusal.” Topping immediately asked to take the test, but the officer refused to give it. The court of appeals was unmoved:

¶12 . . . As a matter of law, that Topping later changed his mind is not relevant to his having refused in the first place. See Rydeski, 214 Wis. 2d at 109 (the driver’s “willingness to submit to the test, subsequent to his earlier refusal, does not cure the refusal”).

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