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Refusal, § 343.305 – Discretionary Authority to Dismiss

State v. Brandon H. Bentdahl, 2012AP1426, District 4, 12/6/12; court of appeals decision (1-judge, ineligible for publication), petition for review granted 6/13/13; reversed, 2013 WI 106; case activity

A circuit court has discretionary authority to dismiss a refusal charge, § 343.305, after the defendant has pleaded guilty to the underlying OWI, State v. Brooks, 113 Wis. 2d 347, 348-49, 335 N.W.2d 354 (1983) (“If the person who is charged with OWI, on the basis of other nonchemical-test evidence, subsequently pleads guilty, there no longer remains a need for penalties for failure to submit to a test which has become unnecessary in the particular case.”). The court now extends this principle to a factual setting where the driver has been acquitted of the OWI:

¶13      The State argues that Brooks cannot apply here where the refusing defendant went to trial and was acquitted; Bentdahl argues that the key is that the State was able to prosecute the operating-while-intoxicated charge using blood test evidence that had been promptly obtained despite Bentdahl’s refusal.  The State’s argument goes to whether a court properly exercises its discretion on the facts before it, not whether it has that discretionary authority in the first place.  Based on Brooks, the circuit court does have the discretionary authority to dismiss a refusal charge at a hearing after a guilty plea or trial, with the outcome of the trial being just one factor for the court to consider.  See Brooks, 113 Wis. 2d at 356 (“Those who refuse may still be convicted of OWI after a trial, but even if they are not, they face revocation … for the refusal”).  “[T]he power to dismiss is a discretionary one” and whether the decision to dismiss (or not dismiss) “can be justified as a proper exercise of discretion will be dependent upon the ambience of the particular case.”  Id. at 359.

The case is thus remanded so that the trial court can exercise its discretion on the matter.

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