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OWI — Implied Consent, Driver’s Request for Additional Test, § 343.305 (5)(a), Made After Release From Custody – Timeliness

State v. Patrick J. Fahey, 2005 WI App 171

Issue: Whether requested alternative testing at agency expense is deemed a “request” within § 343.305(5)(a) where made after driver was released from custody, left police department, and then returned about 15 minutes later, ¶7.


¶14      … The State, in keeping with the circuit court’s decision, argues that it is unreasonable to think that the legislature meant to hold open the time period for a request beyond when a suspect is released from custody.

¶15      We conclude that the State’s interpretation is more reasonable ….

¶17      In interpreting Wis. Stat. § 343.305(5)(a), we also take into account that the issue is not whether a suspect may have an alternative test, but whether a police agency must provide an alternative test at no charge.  Our construction of the statute does not prevent suspects from obtaining evidence; rather, it places a reasonable limit on their ability to do so at taxpayer expense.  Fahey was free to obtain an alternative test, but it was too late to ask for one provided at agency expense.

¶18      Our decision is narrow.  We hold that, where police have informed a suspect of his or her right to an alternative test at agency expense, the suspect has ample opportunity to make a request, the suspect makes no request, and the suspect is released from custody and leaves the presence of custodial police, a subsequent request for an alternative test at agency expense is not a request within the meaning of Wis. Stat. § 343.305(5)(a).  We do not hold that police must honor all requests made while a suspect remains in custody.


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