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Refusal hearing — sufficiency of evidence; lawfulness of blood draw after refusal

State of Wisconsin/City of Sturgeon Bay v. Bradley H. Hart, 2013AP85, District 3, 6/18/13; court of appeals decision (1-judge; ineligible for publication); case activity

The circuit court’s finding that Hart refused a chemical is not clearly erroneous, despite Hart’s being from Illinois, where the law is different, and his acquiescence, without physical resistance, to the blood draw done after his initial refusal. He was advised of Wisconsin law before he was asked to submit to a test, and even if he didn’t physically resist the blood draw, he twice refused to submit to the test before the blood draw. (¶¶7-9).

Nor does Missouri v. McNeely, 133 S. Ct. 1552 (2013), render the blood draw improper. Hart is charged with violating the implied consent law, not with OWI, so the issues in the case concern only whether he refused to submit to a chemical test, not with whether the officer should have obtained a warrant for the blood draw. McNeely does not impact the implied consent law, so “whether an officer’s warrantless blood draw was unlawful and the test results should be suppressed has no bearing on whether Hart violated the implied consent law.” (¶10).

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