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Wisconsin Supreme Court: Deadline for requesting refusal hearing cannot be extended

Village of Elm Grove v. Richard K. Brefka, 2013 WI 54, affirming unpublished court of appeals opinion; Justice Bradley, for a unanimous court; case activity

The 10-day deadline for filing a request for a refusal hearing, §§ 343.305(9)(a)4. and (10)(a), is mandatory, and may not be extended based on excusable neglect.

Brefka was issued a Notice of Intent to Revoke Operating Privileges on December 12 after he refused a chemical test. The notice advised him he had 10 days from the date of the notice to file a request for a refusal hearing. (¶6). He filed a request for a hearing on December 28. Both the municipal court and circuit court concluded they lacked competency to extend the time limit due to excusable neglect, and the court of appeals affirmed. (¶¶7-12).

The supreme court agrees with the lower courts. The statutes provide that a person may request a refusal hearing within 10 days after service of the notice of intent to revoke, and that if no request for a hearing is received within the 10-day period, the revocation period for the refusal “shall” begin 30 days after the the date of the refusal, §§ 343.305(9)(a)4. and (10)(a). The word “shall” is presumed to be mandatory unless a different interpretation is necessary to carry out the legislature’s intent, and based on the factors identified in Karow v. Milwaukee County Civil Service Comm’n, 82 Wis. 2d 565, 263 N.W.2d 214 (1978), the court concludes the use of “shall” in the implied consent statutes is mandatory:

¶26      A review of the factors set forth in Karow indicate that the ten-day time limit in this case is mandatory rather than directory. Most significantly, the implied consent law sets forth a penalty for noncompliance with the ten-day time limit. Wisconsin Stat. § 343.305(10)(a) directs that revocation is to commence 30 days after the date of refusal if no hearing is requested. The inclusion of a penalty for noncompliance suggests that the term “shall” is mandatory.

¶27      Additionally, construing the word “shall” as directory under these circumstances could have profound consequences for the penalties that the legislature has set forth for improper refusals. Wisconsin Stat. § 343.305(10) sets forth a penalty structure for improper refusals that depends upon whether a person requests a refusal hearing within ten days of service of the Notice of Intent.  Wis. Stat. § 343.305(10)(a). If additional litigation over extension of the ten-day time limit occurs, the other penalty requirements set forth in the implied consent law that depend upon timely revocation may be thrown into question….

Injecting uncertainty into the statute’s “otherwise precise penalty structure” is at odds with the purposes of the implied consent law—obtaining evidence to identify and prosecute drunk drivers and remove them from the road as quickly as possible. (¶¶30-34).

The court also holds that the civil procedure statutes allowing extensions of deadlines due to excusable neglect do not apply here, distinguishing State v. Schoepp, 204 Wis. 2d 266, 554 N.W.2d 236 (Ct. App. 1996), which applied the civil discovery rules to refusal hearings because the refusal statute sets for no different procedure:

¶40      Because the legislature has set forth a mandatory ten-day time limit with precise penalties that rely on whether the time limit is met, the legislature has provided a “different procedure” that governs pursuant to Wis. Stat. § 801.01(2). Accordingly, Wis. Stat. §§ 800.115, 801.15(2)(a), and 806.07 do not allow for the extension of the ten-day time limit due to excusable neglect. Wis. Stat. § 801.01(2); see Schoepp, 204 Wis. 2d at 272.

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