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Village of Elm Grove v. Richard K. Brefka, 2011AP2888, WSC review granted 11/14/12

on review of unpublished decisioncase activity

Issue (composed by On Point) 

Whether the municipal court lacks competence to extend the 10-day time deadline for requesting a refusal hearing.

Brefka filed a request for refusal hearing outside the 10-day time limit in § 343.305(9)(a)4. Does a court possess competence to extend that deadline? No dice, according to the court of appeals: “Section 343.305(9)(a)4. specifically mandates that if the request for a hearing is not received within the ten-day period, revocation commences thirty days after the date of the notice of intent to revoke. … Additionally, Wis. Stat. § 343.305(10)(a) requires the circuit court to proceed with revocation if no request for a hearing is timely received.” What about §§ 800.115(1) and 806.07(1)(a) which allow a litigant to reopen, respectively, municipal and circuit court judgment on account of excusable neglect? These provisions don’t apply, the court of appeals held, where a different procedure is otherwise prescribed, as here: “§ 343.305(9)(a)4. and (10)(a) do provide for a different procedure, namely, both provisions of the refusal statutes impose a mandatory obligation on the circuit court to revoke a person’s operating privilege if he or she does not file a request for a refusal hearing within ten days of the notice of intent to revoke.”

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