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Officer’s additional information didn’t mislead driver about blood test

County of Dunn v. Kevin J. Cormican, 2020AP1895, 2/7/23, District 3, (1-judge opinion, ineligible for publication); case activity (including briefs)

After being convicted of OWI 1st, Cormican appealed the denial of his motion to suppress the results of his blood test. He first argued that the arresting officer gave him information beyond what is on the Informing the Accused (ITA) card that was misleading and affected his decision to consent to the test. He also argued that due to the misleading information, his consent to the blood test was involuntary. The court of appeals affirmed.

Under Wisconsin’s Implied Consent Law, every driver impliedly consents to take a chemical test for blood alcohol content, but he may revoke consent by refusing to take the test. Wis. Stat. § 343.305(4); County of Ozaukee v. Quelle, 198 Wis. 2d 269, 280, 542 N.W.2d 196 (Ct. App. 1995), abrogated on other grounds by Washburn County v. Smith, 2008 WI 23, ¶64, 308 Wis. 2d 65, 746 N.W.2d 243. Law enforcement must read the information set forth in §343.305(4) (which is the same information on the ITA card) when requesting a chemical test.

When an officer provides more information than required by §343.305(4), the court will suppress the test results, if the driver proves that the extra information was misleading and affected his ability to make an informed choice about whether to submit to test. Quelle, 198 Wis. 2d at 280.

In this case, the deputy told Cormican (who held a Commercial Driver’s License) that the state would “automatically” take away his operating privileges if he refused to consent to a blood test.  Cormican argued that this was misleading because he was not told that he had a right to a refusal hearing first. The court of appeals held that §343.305(4) does not require an officer to inform the driver about his right to a hearing. Opinion, ¶18.

Cormican argued that the deputy also exceeded his duty under §343.305(4) by saying that Cormican impliedly consented to a blood test by virtue of obtaining a Wisconsin driver’s license. The court of appeals held that this statement was consistent with § 343.305(2). And it wasn’t misleading because the officer did not say that Cormican gave actual consent to a blood test by obtaining a driver’s license. Opinion, ¶22.

Furthermore, Cormican admitted that he understood that he had to make a choice about whether to consent to the test or not. Opinion, ¶23 

Finally, the court of appeals rejected Cormican’s claim that his consent was involuntary because none of the officer’s statements were misleading and, in any event, none of Cormican’s personal characteristics made him susceptible to pressures by law enforcement. Opinion, ¶¶26-31.

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