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OWI – Implied Consent Law – Misleading Advice – Right of Refusal, § 343.305(9)

State v. Darin W. Baratka, 2002 WI App 288, PFR filed 10/20/02
For Baratka: Michael C. Witt


¶12      Baratka claims that he was not properly informed of his choices and was therefore unable to understand his rights regarding chemical testing.  In order for Baratka to prove he was not adequately informed, he must show:

1.      Has the law enforcement officer not met, or exceeded his or her duty under §§ 343.305(4) and 343.305(4m) to provide information to the accused driver;

2.      Is the lack or oversupply of information misleading; and

3.      Has the failure to properly inform the driver affected his or her ability to make the choice about chemical testing[.]

County of Ozaukee v. Quelle, 198 Wis. 2d 269, 280, 542 N.W.2d 196 (Ct. App. 1995).

¶13      The officer incorrectly stated that he had a right under the implied consent law to perform field sobriety tests.  As a result, Baratka argues that this misleading statement interfered with his ability to understand his rights.  Therefore, he argues he was unable to make an informed choice and did not know that his assertion of rights would amount to a refusal.

¶14. While the officer was mistaken regarding the right to require Baratka to perform field tests, there was no misinformation regarding the request for chemical testing. The officer’s right to request the test was properly stated when the officer read the Informing the Accused form. In fact, Baratka does not identify how any misinformation about the field tests affected his understanding of the chemical testing.¶15. Additionally, Baratka argues that he never verbally or physically refused testing. However, when asked to submit to a test, rather than respond he twice requested to speak to an attorney. Repeated requests for an attorney can amount to a refusal as long as the officer informs the driver that there is no right to an attorney at that point. State v. Reitter, 227 Wis. 2d 213, 235, 595 N.W.2d 646 (1999). The officer did so inform Baratka. We therefore conclude that the evidence supports the trial court’s finding that Baratka refused chemical testing, and its order revoking Baratka’s operating privileges.

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