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Officer substantially complied with the “Informing the Accused” statute

State v. Danial Christopher Wheaton, 2022AP2082-CR, District 4, 7/27/23 (one-judge decision; ineligible for publication); case activity (including briefs)

The officer who arrested Wheaton for OWI flubbed the first clause of the first sentence of the “Informing the Accused” script set out in § 343.305(4), but still substantially complied with the statute.

The first clause of the first sentence of the script reads: “You have either been arrested for an offense that involves driving or operating a motor vehicle while under the influence of alcohol or drugs, or both, ….” To this the officer added three words—“that involves drinking”—after the word “offense” and before the phrase “that involves driving or operating a motor vehicle while under the influence….” (¶¶3, 4). Wheaton argued the mistake would lead him to believe he was being arrested for an “absolute sobriety” offense, and that this misinformation interfered with his right to make an informed choice regarding his statutory and constitutional rights. Accordingly, he argued, the results of the test of the blood sample he consented to giving should be suppressed. (¶5).

The law doesn’t require “complete compliance” with § 343.305(4), only “substantial compliance.” Washburn County v. Smith, 2008 WI 23, ¶62 n.52, 308 Wis. 2d 65, 746 N.W.2d 243. To substantially comply with § 343.305(4), an officer must “provide the statutorily required information.” Id., ¶¶65, 75. The officer who arrested Wheaton met that standard.

First, the officer provided the statutorily required information by telling Wheaton he had been arrested for one of several enumerated offenses and advising him about the consequences of submitting to testing, the consequences of refusing, and the right to alternative testing. (¶¶12, 15).

Second, Wheaton’s argument that adding the three words “that involves drinking” when reading the first sentence of the script led him to believe he was being arrested for an absolute sobriety offense is not a reasonable interpretation of the facts, which show Wheaton understood that the prohibited blood alcohol concentration that applied to him was .08 and that he was being arrested, not merely because the officers suspected he had been drinking, but because the officers had determined that he was impaired. (¶¶13-14). “To be sure, the officer stated that he had been arrested ‘for an offense that involves drinking,’ yet it is undeniable that the offense for which he was arrested did involve drinking,” but the officer’s “linguistic misstep” in reading the script would not have misled Wheaton into believing that he was being arrested for an “absolute sobriety offense. (¶14).

Two practice pointers: First, Wheaton’s demand for suppression is misguided. If the officer failed to substantially comply with § 343.305(4), the remedy is not suppression, but loss of presumption of admissibility of the test results under §§ 343.305(5)(d) and 885.235(1g) without accompanying expert testimony as prima facie evidence of impairment or prohibited alcohol content (if the sample was taken within 3 hours of driving). State v. Zielke, 137 Wis. 2d 39, 51, 403 N.W.2d 427 (1987) (“nothing in [§ 343.305] or its history permits the conclusion that failure to comply with [§ 343.305(4)] prevents the admissibility of legally obtained chemical test evidence in [a] … criminal prosecution for offenses involving intoxicated use of a vehicle”). (¶¶5 n.5, 10).

Second, and relatedly, Wheaton entered a no contest plea. Under the guilty plea waiver rule, a defendant who pleads guilty or no contest doesn’t have the right to appeal pre-plea rulings, with one “narrowly crafted exception” for denial of a suppression motion, § 971.31(10). (¶8 n.6). If departing from the Informing the Accused script doesn’t result in suppression, Wheaton’s motion wasn’t a suppression motion, and the denial of his motion isn’t appealable. The state doesn’t make this argument, so the court assumes without deciding that Wheaton’s plea doesn’t preclude his appeal; but the court notes, “this is no small assumption in Wheaton’s favor.” (¶10 & n.8).

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