≡ Menu

OWI – Compliance with § 343.395(4)

Waukesha County v. Eric D. Smith, 2008 WI 23, affirming unpublished decision
For Smith: Kirk B. Obear

Issue/Holding: By reading the required statutory information verbatim, the officer fully complied with § 343.305(4); he did not err by failing to inform the driver that he might incur penalties different from those in Wisconsin relative to the state that issued his license nor by telling the driver that if he refused to take the chemical test he would get a hearing within 10 days.

¶56  The principal case is County of Ozaukee v. Quelle, 198 Wis. 2d 269, 542 N.W.2d 196 (Ct. App. 1995), in which the court of appeals set forth a three-pronged inquiry for assessing the information process mandated by Wis. Stat. § 343.305(4). [42] The Quelle court held that a circuit court must answer the following three questions in the affirmative before determining that the information imparted by the law enforcement officer is inadequate:

(1) Has the law enforcement officer not met, or exceeded his or her duty under §§ 343.305(4) . . . to provide information to the accused driver;
(2) Is the lack or oversupply of information misleading; [43] and
(3) Has the failure to properly inform the driver affected his or her ability to make the choice about chemical testing? [44]

…¶81  We disagree with the defendant that the Deputy’s statement of the applicable penalties was erroneous.  The Deputy accurately stated the Wisconsin law.  Regardless of whether the Deputy accurately stated the law of Louisiana, neither the deputy nor the defendant believed that the Deputy was stating the law of Louisiana.

¶82  Officers impart information about Wisconsin law and cannot be required to decide whether another state’s law might govern or to explain that other state’s law.  Imparting information about Wisconsin law is all that can be expected or required of Wisconsin law enforcement officers.  The defendant’s argument about Louisiana law is unconvincing.

¶83  The defendant also contends that the Deputy provided the defendant with erroneous information when the Deputy allegedly stated that if the defendant refused to submit to chemical testing, the defendant would be entitled to a hearing within ten days.  As the defendant points out, the defendant was entitled to request a refusal hearing within ten days; he was not entitled to have such a hearing within ten days. [68]

¶86  The absence of a finding about what the Deputy told the defendant and whether any misstatement contributed to the defendant’s refusal to take the test does not impair our ability to resolve the present case.  The defendant failed to make a prima facie showing, as required by the Ludwigson case, that the Deputy’s erroneous statement about a hearing contributed to the defendant’s refusal to submit to chemical testing.  Nor does the Deputy’s testimony suggest that the defendant cared about the timing of the refusal hearing.  The Deputy’s testimony instead shows that the defendant initially decided to submit to chemical testing after his discussion with the Deputy and then changed his mind, apparently because he was unwilling to follow the proper procedure for submitting a breath sample.  Even assuming that the defendant has satisfied the first two prongs of the Quelle inquiry, he has not satisfied the third prong.


{ 0 comments… add one }

Leave a Comment