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Premature revocation for refusal can’t be invalidated

City of Crandon v. Lynda Morris, 2017AP2266, District 3, 1/15/19 (one-judge decision; ineligible for publication); case activity (including brief of appellant; respondent didn’t file one….)

The circuit court improperly jumped the gun by ordering Morris’s driver’s license to be revoked for refusal before the 10-day deadline for her to request a refusal hearing. But she never asked for a refusal hearing, and once the deadline to do so passed the circuit court lost competency to undo the revocation—even though the associated OWI 3rd charges were ultimately thrown out after the evidence was suppressed.

The court of appeals agrees the circuit court shouldn’t have revoked Morris’s license before the 10-day deadline. (¶¶6-8). But that doesn’t mean the revocation order was void because it violated due process:

¶12     We conclude that the revocation order’s premature entry did not violate Morris’s due process rights and the order is not void because the circuit court’s error was technical and nonprejudicial to Morris. The court’s error was technical because it was insignificant, as the timing of the order’s entry did not impair Morris’s ability to file a hearing request. In addition, the general purpose of Wis. Stat. § 343.305 was fulfilled by entry of the revocation order. Our supreme court has opined that the purpose behind § 343.305 and laws relating to operating while under the influence of intoxicants is to identify intoxicated drivers and remove them from roadways as expeditiously as possible with minimal disruption to a court’s calendar. State v. McMaster, 206 Wis. 2d 30, 46, 556 N.W.2d 673 (1996). The order’s early entry—while improper—nonetheless aligned with the statute’s purpose. See [State v.] Carlson, [2002 WI App 44,] 250 Wis. 2d 562, ¶26[, 641 N.W.2d 451]. Thus, the court’s error was technical, as opposed to fundamental.

Nor does the revocation violate her Fourth Amendment rights, despite the fact her suppression motion in the associated OWI case was successful. While the circuit court could order the refusal won’t result in revocation based on a finding a driver’s Fourth Amendment rights were violated, State v. Anagnos, 2012 WI 64, ¶42, 341 Wis. 2d 576, 815 N.W.2d 675, that has to happen at a refusal hearing—which Morris didn’t request. (¶¶18-19).

Finally, once the 10-day deadline passed without a request for a refusal hearing, the circuit court lost competency to address the refusal. State v. Bentdahl, 2013 WI 106, ¶26, 351 Wis. 2d 739, 840 N.W.2d 704. Morris’s argument that Bentdahl doesn’t apply to void orders fails because the order here wasn’t void. (¶¶14-17).

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