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State v. Brandon H. Bentdahl, 2012AP1426, petition for review granted, 6/13/13

Review of unpublished court of appeals decision; case activity

Issue (composed by On Point)

Does a circuit court have discretion to dismiss a refusal proceeding after the prosecution of the underlying OWI charge results in an acquittal?

This case is of obvious interest to OWI practitioners, even if its facts are unusual and, thus, not likely to arise very often. As we noted in our post about the court of appeals decision, State v. Brooks, 113 Wis. 2d 347, 335 N.W.2d 354 (1983), held that a circuit court has discretionary authority to dismiss a refusal charge, § 343.305, after the defendant has pleaded guilty to the underlying OWI. Reading Brooks as a broad grant of discretionary authority, the court of appeals extended that principle to cases in which the defendant has been acquitted of the underlying OWI after a trial, as Bentdahl was. The state’s petition for review was granted, and the supreme court will now tell us how far the principle in Brooks extends.

Note that the state cited language from Brooks to argue that decision was premised on the fact a guilty plea (unlike an acquittal) means the defendant will still be penalized for his conduct; the court of appeals said that argument goes to the court’s exercise of discretion, not the existence of the discretionary authority. For his part, Bentdahl argued Brooks is based on the purpose of the implied-consent law–collecting chemical evidence to use in the OWI prosecution–and that purpose was satisfied because the state was still able to use blood-test evidence it promptly took from him after his refusal. No doubt the police took blood from Bentdahl under the authority of State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993). But the per se exigency rule in that case was invalidated two months ago by Missouri v. McNeely, 133 S. Ct. 1552 (2013). This change in the legal landscape may well undermine Bentdahl’s argument, at least to the extent it means a refusal could frustrate collection of any chemical evidence.

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