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Refusal — sufficiency of evidence that officer conveyed implied consent warnings

State v. Randel R. Clark, 2012AP2661, District 4, 7/25/13; court of appeals decision (1-judge; ineligible for publication); case activity

The record supports the circuit court’s conclusion that the police officer used reasonable means to convey the necessary implied consent warnings to Clark under the standard in State v. Piddington2001 WI 24, ¶24, 241 Wis. 2d 754, 623 N.W.2d 528, despite Clark’s claims he couldn’t hear the officer, has tinnitus in both ears, and considers himself hearing impaired–though he did not communicate that to the officer. (¶7).

¶12      … I conclude that the record supports the circuit court’s conclusion that the State carried its burden under Piddington. The testimony reflects that the deputy and Clark engaged in a number of discussions from the time of the stop to the time that the deputy read the form to Clark without any explicit or implied suggestion by Clark that he was hearing impaired or even, more generally, that he could not understand everything the deputy said to him. ….

¶13      Also relevant to the analysis is the fact that the warning process ends with a question, which Clark here answered without question or qualification. The record in this case supports a conclusion that the deputy could have reasonably assumed that, if Clark had not heard or understood what the deputy said before asking the question, Clark would likely not have simply answered no, but might well have said something along the lines of, “I couldn’t hear all that.  What’s this test?” This is particularly true given that Clark presents no reason why the deputy would or should have had any indication that Clark might have some type of hearing impairment that could affect his ability to hear the deputy.

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