Village of Elm Grove v. Richard K. Brefka ( 2013 )

2013 WI 54SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP2888
COMPLETE TITLE: Village of Elm Grove,
Plaintiff-Respondent,
v.
Richard K. Brefka,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 343 Wis. 2d 680, 819 N.W.2d 563(Ct. App. 2012 – Unpublished)
OPINION FILED: June 26, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 13, 2013
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: Mark D. Gundrum
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Andrew Mishlove and Lauren Stuckert, and Law Offices of
Andrew Mishlove, Glendale, and oral argument by Andrew Mishlove.
For the plaintiff-respondent, there was a brief by Douglas
Hoffer, and de la Mora & de la Mora, Elm Grove, and oral
argument by Douglas Hoffer.
2013 WI 54NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP2888
(L.C. No. 2011CV2837)
STATE OF WISCONSIN : IN SUPREME COURT
Village of Elm Grove,
Plaintiff-Respondent,
FILED
v.
JUN 26, 2013
Richard K. Brefka,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANN WALSH BRADLEY, J. The petitioner, Richard K.
Brefka (Brefka), seeks review of an unpublished opinion of the
court of appeals affirming a decision of the circuit court,
denying Brefka's request for an extension of time.1 Brefka was
arrested for operating a vehicle while intoxicated and
apparently refused a chemical test to ascertain his blood
1
Village of Elm Grove v. Brefka, No. 2011AP2888,
unpublished slip op, (Ct. App. Jun. 19, 2012), affirming the
circuit court for Waukesha County, Mark D. Gundrum, J.,
presiding.
No. 2011AP2888
alcohol concentration. He subsequently filed a request for a
refusal hearing, but did not file his request within ten days
after he was served with a notice of intent to revoke his
operating privileges as required by Wis. Stat.
§§ 343.305(9)(a)4. and (10)(a) (2009-10). He sought to extend
the time period in which he was allowed to file a request for a
refusal hearing due to excusable neglect.
¶2 The circuit court concluded that because Brefka did
not file a request for a refusal hearing within the required
ten-day time limit, it lacked competency to hear his request to
extend that time limit. It therefore denied Brefka's motion to
extend the ten-day time limit and dismissed his request for a
refusal hearing, remanding the case to the Village of Elm Grove
municipal court (the municipal court) for disposition.
¶3 The Village of Elm Grove (the Village) argues that
Wis. Stat. §§ 343.305(9)(a)4. and (10)(a) set forth a mandatory
requirement to request a refusal hearing within the ten-day time
limit that may not be extended due to excusable neglect. It
asserts that because the statute does not allow the circuit
court to extend the ten-day time limit, the circuit court lacked
competency to hear Brefka's request.
¶4 We conclude that the circuit court is without
competency to hear Brefka's request to extend the ten-day time
limit set forth in Wis. Stat. §§ 343.305(9)(a)4. and (10)(a).
The ten-day time limit is a mandatory requirement that may not
be extended due to excusable neglect. Because the mandatory
ten-day time limit is central to the statutory scheme, the
2
No. 2011AP2888
circuit court lacked competency to hear Brefka's request to
extend it. Accordingly, we affirm the court of appeals.
I
¶5 The facts of this case are undisputed.
¶6 On December 12, 2010, law enforcement officers from
the Village arrested Brefka and issued him a "Notice of Intent
to Revoke Operating Privilege" (the Notice of Intent). The
Notice of Intent stated that Brefka had refused a chemical test
and identified the date of refusal as December 12, 2010. It
also notified Brefka that he had ten days from the date of the
notice to file a request for a refusal hearing:
You refused a request to submit to a test or tests
under 343.305(3) Wis. Stats. Because of this refusal,
your operating privilege may be revoked.
You have 10 days from the date of this notice to file
a request for a hearing on the revocation with the
court named below. . . . If you do not request a
hearing, the court must revoke your operating
privileges 30 days from the date of this notice.
¶7 Brefka filed a request for a refusal hearing on
December 28, 2010. The municipal court scheduled a refusal
hearing, but the Village filed a motion to strike Brefka's
request for the refusal hearing because Brefka had not submitted
his request within the required ten days under Wis. Stat.
§§ 343.305(9)(a)4. and (10)(a).2
2
All references to the Wisconsin Statutes are to the 2009-
10 version unless otherwise indicated. Wisconsin Stat.
§ 343.305(9)(a)4. provides as follows, in relevant part:
(9) Refusals; notice and court hearing. (a) If a
person refuses to take a test under sub. (3)(a), the
3
No. 2011AP2888
¶8 Although Brefka conceded that his request for a
refusal hearing was untimely, he requested that the municipal
court extend the ten-day time limit. He alleged that "judgment
was entered due to . . . excusable neglect."
¶9 At a hearing, the municipal court concluded that
Brefka's failure to request a refusal hearing within the ten-day
time limit meant that it lacked competency to hear Brefka's
request to extend the time limit:
law enforcement officer shall immediately prepare a
notice of intent to revoke, by court order under sub.
(10), the person's operating privilege. . . . The
notice of intent to revoke the person's operating
privilege shall contain substantially all of the
following information:
. . . .
4. That the person may request a hearing on the
revocation within 10 days by mailing or delivering a
written request to the court whose address is
specified in the notice. If no request for a hearing
is received within the 10-day period, the revocation
period commences 30 days after the notice is issued.
Additionally, Wis. Stat. § 343.305(10)(a) provides as
follows, in relevant part:
(10) Refusals; court-ordered revocation. (a) If the
court determines under sub. (9)(d) that a person
improperly refused to take a test or if the person
does not request a hearing within 10 days after the
person has been served with the notice of intent to
revoke the person's operating privilege, the court
shall proceed under this subsection. If no hearing was
requested, the revocation period shall begin 30 days
after the date of the refusal. If a hearing was
requested, the revocation period shall commence 30
days after the date of refusal or immediately upon a
final determination that the refusal was improper,
whichever is later.
4
No. 2011AP2888
I can't even hear this matter because the refusal
wasn't requested within the 10 day time frame under
343.305(9). It wasn't requested within 10 days. . . .
Counsel for the defense . . . I would like to hear
from you...I know you're making the request that I
extend the time limit but when we're talking about
competency of the court I can't even hear the Motion.
I don't have competency to do anything on this matter
and it's my position that I can do nothing.
The municipal court therefore denied Brefka's request to extend
the ten-day time limit and dismissed his request for a refusal
hearing.3
¶10 Brefka appealed to the Waukesha County Circuit Court.
The Village filed a motion to dismiss, arguing that the circuit
court lacked competency to hear Brefka's request to extend the
ten-day time limit.
¶11 At a motion hearing, the circuit court determined that
it lacked competency. Examining the text of Wis. Stat.
§ 343.305(9)(a)4., the circuit court reasoned that the statute
is "very clear, very specific" and that it "clearly says ten
days without question." Accordingly, the circuit court
concluded that it was "without competency to really address the
appeal," and granted the Village's motion to dismiss, remanding
the case to the municipal court for disposition.
3
The municipal court hearing transcript is incomplete
because the recording device used at the hearing stopped
recording partway through the hearing without the knowledge of
court personnel. The municipal court's ultimate disposition of
the case is not in the transcript of the hearing, but the
parties agree that the municipal court denied Brefka's request
to extend the ten-day time limit on the ground of competency and
ultimately dismissed his untimely request for a refusal hearing.
5
No. 2011AP2888
¶12 Brefka appealed to the court of appeals following the
circuit court's determinations. The court of appeals affirmed
the circuit court, concluding that "[t]he plain language of the
statute is abundantly clear." Village of Elm Grove v. Brefka,
No. 2011AP2888, unpublished slip op, ¶6 (Ct. App. Jun. 19,
2012). Wisconsin Stat. §§ 343.305(9)(a)4. and (10)(a) "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." Id., ¶10. The court of appeals noted that the ten-day
time limit is a "different procedure" from the general rules of
civil procedure, and that pursuant to Wis. Stat. § 801.01(2),
the rules of civil procedure that allow for relief due to
excusable neglect do not apply.4 Id. Ultimately, it concluded
that the circuit court lacked competency to hear Brefka's
request to extend the ten-day time limit, stating that "failure
to observe statutory time limits deprives a court of
competency." Id., ¶13.
II
4
Wisconsin Stat. § 801.01(2) states the following:
(2) Scope. Chapters 801 to 847 govern procedure and
practice in circuit courts of this state in all civil
actions and special proceedings whether cognizable as
cases at law, in equity or of statutory origin except
where different procedure is prescribed by statute or
rule. Chapters 801 to 847 shall be construed to secure
the just, speedy and inexpensive determination of
every action and proceeding.
6
No. 2011AP2888
¶13 In this case, we are called upon to review whether the
circuit court has competency to hear Brefka's motion to extend
the ten-day time limit for requesting a refusal hearing set
forth in Wis. Stat. §§ 343.305(9)(a)4. and (10)(a) due to
excusable neglect. Whether a court has competency presents a
question of law that we review independently of the
determinations of the circuit court and the court of appeals.
Village of Trempealeau v. Mikrut, 2004 WI 79, ¶7, 273 Wis. 2d
76, 681 N.W.2d 190.
¶14 In order to determine whether the circuit court has
competency, we must interpret Wis. Stat. § 343.305, also known
as the implied consent law. The interpretation of a statute
presents a question of law, which we also review independently
of the determinations rendered by the circuit court and the
court of appeals. State v. Leitner, 2002 WI 77, ¶16, 253 Wis.
2d 449, 646 N.W.2d 341.
III
¶15 The Village argues that the circuit court does not
have competency to hear Brefka's request to extend the ten-day
time limit set forth in Wis. Stat. §§ 343.305(9)(a)4. and
(10)(a). It advances that the ten-day time limit to request a
refusal hearing and the subsequent requirement that operating
privileges be revoked commencing 30 days after refusal if no
hearing is requested are mandatory requirements. Finally, it
contends that the mandatory nature of the statutory requirements
demonstrates that the legislative purpose of the statutory
7
No. 2011AP2888
scheme can be fulfilled only if the ten-day time limit cannot be
extended due to excusable neglect.
¶16 The circuit court's determination of competency refers
to its "ability to exercise the subject matter jurisdiction
vested in it" by Article VII, Section 8 of the Wisconsin
Constitution. Mikrut, 273 Wis. 2d 76, ¶9. That section of the
constitution states that "[e]xcept as otherwise provided by law,
the circuit court shall have original jurisdiction in all
matters civil and criminal within this state." Wis. Const. art.
VII, § 8. Although the circuit court may not be deprived of
jurisdiction "[e]xcept as otherwise provided by law," it may
lack competency to render a valid order or judgment in a civil
or criminal matter when the parties fail to meet certain
statutory requirements.5 Mikrut, 273 Wis. 2d 76, ¶9.
¶17 A statutory time limit is one type of statutory
requirement that may result in a loss of the circuit court's
competency, if a party fails to satisfy it. Id., ¶13. However,
noncompliance with a mandatory statute does not always translate
into a loss of competency. State v. Bollig, 222 Wis. 2d 558,
566, 587 N.W.2d 908 (Ct. App. 1998) (citing State v. Kywanda F.,
200 Wis. 2d 26, 33, 546 N.W.2d 440 (1996)). Sometimes the
5
However, this court has urged that "the critical focus is
not . . . on the terminology used to describe the court's power
to proceed in a particular case. The focus is on the effect of
non-compliance with a statutory requirement on the circuit
court's power to proceed." Miller Brewing Co. v. LIRC, 173
Wis. 2d 700, 705 n.1, 495 N.W.2d 660 (1993) (describing the
differences between subject matter jurisdiction and competency).
8
No. 2011AP2888
"legislative purpose of the statutory scheme [can] be fulfilled,
without strictly following the statutory directive." Id. at
567-68.
¶18 To determine whether the circuit court lacked
competency to hear Brefka's motion to extend the ten-day time
limit set forth in Wis. Stat. §§ 343.305(9)(a)4. and (10)(a), we
must evaluate "the effect of noncompliance on the court's power
to proceed in the particular case before the court." Mikrut,
273 Wis. 2d 76, ¶10. Failures to abide by statutory mandates
that are "central to the statutory scheme" of which they are a
part will deprive the circuit court of competency. Id.¶19 We therefore look to the requirements imposed by the
relevant statutory scheme to evaluate whether the circuit court
has competency to hear Brefka's motion that the ten-day time
limit be extended due to excusable neglect. The ten-day time
limit is set forth in Wis. Stat. § 343.305, also known as the
implied consent law. This court recently summarized the general
procedures contained in the implied consent law as follows:
Wisconsin Statute § 343.305, known as the implied
consent law, provides that any person who drives on
the public highways of this state is deemed to have
consented to chemical testing upon request by a law
enforcement officer. Upon arrest of a person for
violation of an OWI-related statute, a law enforcement
officer may request the person to provide a blood,
breath, or urine sample for chemical testing. Wis.
Stat. § 343.305(3)(a). At the time of the request for
a sample, the officer must read to the person certain
information set forth in § 343.305(4), referred to as
the Informing the Accused form.
If the person submits to chemical testing and the test
reveals the presence of a detectable amount of a
9
No. 2011AP2888
restricted controlled substance or a prohibited
alcohol concentration, the person is subjected to an
administrative suspension of his operating privileges.
Wis. Stat. § 343.305(7)(a). The person has the right
to an administrative hearing and to judicial review.
Wis. Stat. § 343.305(8). The administrative hearing is
limited to certain issues that are set forth by
statute. Wis. Stat. § 343.305(8)(b)2.
If, on the other hand, the person refuses to submit to
chemical testing, he is informed of the State's intent
to immediately revoke his operating privileges. Wis.
Stat. § 343.305(9)(a). The person is also informed
that he may request a refusal hearing in court. Wis.
Stat. § 343.305(9)(a)4.
State v. Anagnos, 2012 WI 64, ¶¶22-24, 341 Wis. 2d 576, 815
N.W.2d 675. This case concerns a single, narrow aspect of the
procedures set forth in the implied consent law——the required
time period in which a person must request a refusal hearing
after refusing to submit to chemical testing.6
¶20 A person must file a request for a refusal hearing
within ten days after the service of the Notice of Intent in
order to proceed to a refusal hearing under Wis. Stat.
§ 343.305(9)(a)4. A person "may request a hearing on the
revocation within 10 days by mailing or delivering a written
request to the court whose address is specified in the notice,"
but "[i]f no request for a hearing is received within the 10-day
period, the revocation period commences 30 days after the notice
is issued." Wis. Stat. § 343.305(9)(a)4.
6
As indicated, this case concerns only a single, narrow
aspect of the statutory refusal procedures set forth in the
implied consent law. Brefka raises no constitutional challenges
in this case. But see Missouri v. McNeely, 133 S. Ct. 1552(2013).
10
No. 2011AP2888
¶21 Likewise, Wis. Stat. § 343.305(10)(a) states that "if
the person does not request a hearing within 10 days after the
person has been served with the notice of intent to revoke the
person's operating privilege, the court shall proceed under this
subsection," and "[i]f no hearing was requested, the revocation
period shall begin 30 days after the date of the refusal." Id.Different revocation periods are set forth that take into
account the person's previous suspensions, revocations, or
convictions. Wis. Stat. § 343.305(10)(b).
¶22 In this case, it is undisputed that Brefka was
informed in the Notice of Intent that he may request a refusal
hearing within ten days of the date it was served upon him.
Wis. Stat. § 343.305(9)(a)4. Additionally, all agree that
Brefka did not file a request for a refusal hearing within the
required ten-day time limit.7 Thus, according to the text of the
implied consent law, the next step in the statutory procedures
is that the circuit court "shall" proceed to order revocation of
his operating privileges, which is to commence 30 days after the
date of refusal. Wis. Stat. § 343.305(10)(a). The parties,
however, dispute whether the word "shall" is mandatory or
directory in nature, and whether it ultimately deprives the
7
Brefka directly states in his briefing to this court that
he "did not [file a request for a refusal hearing] within the
ten-day statutory time limit."
11
No. 2011AP2888
circuit court of competency to hear Brefka's request to extend
the ten-day time limit.8
¶23 The word "shall" is ordinarily presumed to be
mandatory when it appears in a statute, but may be construed as
directory if necessary to carry out the legislature's clear
intent. Karow v. Milwaukee Cnty. Civil Serv. Comm'n, 82 Wis. 2d
565, 570-71, 263 N.W.2d 214 (1978).9 In Karow, this court
interpreted a statute that set forth a time limit to hold an
administrative hearing before the Milwaukee County Civil Service
Commission. Id. at 568. Karow, a deputy sheriff in Milwaukee
County, was suspended without pay after a complaint was filed
against him by the Milwaukee County Sheriff. Id. at 566-67. A
hearing before the Civil Service Commission was scheduled, but
the assistant corporation counsel assigned to the case became
ill and a substitution of counsel was made. Id. at 567. The
8
Construing the word "shall" as merely directory arguably
allows the circuit court discretion to extend the ten-day time
limit due to excusable neglect. See Eby v. Kozarek, 153 Wis. 2d
75, 79, 83, 450 N.w.2d 249 (1990) (a directory time limit "d[id]
not necessarily deprive the [circuit] court of competency to
exercise its jurisdiction" and did not "mandate dismissal of the
case.").
9
See also Eby, 153 Wis. 2d at 79 ("Under general principles
of statutory construction, the word 'shall' in a statute setting
a time limit is ordinarily presumed to be mandatory."); GMAC
Mortg. Corp. v. Gisvold, 215 Wis. 2d 459, 477, 572 N.W.2d 466(1998); Cross v. Soderbeck, 94 Wis. 2d 331, 340, 288 N.W.2d 779(1980); City of Wauwatosa v. Milwaukee Cnty., 22 Wis. 2d 184,
191, 125 N.W.2d 386 (1963) ("Generally in construing statutes,
'may' is construed as permissive and 'shall' is construed as
mandatory unless a different construction is demanded by the
statute in order to carry out the intent of the legislature.").
12
No. 2011AP2888
new assistant corporation counsel requested that the Civil
Service Commission postpone the hearing because he had not had
time to prepare the case. Id. at 567-68.
¶24 Karow objected to the delay, but the hearing was
postponed. Id. at 568. He later argued that the Civil Service
Commission was statutorily required to hold the hearing within
three weeks of the date the charges were filed against him, and
because that did not happen, he was entitled to a reinstatement.
Id. The statute that set forth the time limit, Wis. Stat.
§ 63.10(2), provided that the Civil Service Commission "shall"
appoint a time and place for the hearing within three weeks
after the complaint was filed. Id.¶25 The Karow court took note of the statute's use of the
word "shall" and considered whether it was mandatory or
directory. Id. at 570. It ultimately set forth several factors
for use in evaluating whether a statute's use of the term
"shall" is mandatory or directory. The factors to be considered
are: the inclusion or omission of a "prohibition or a penalty"
in the statute, "the consequences resulting from one
construction or the other," "the nature of the statute," "the
evil to be remedied," and "the general object sought to be
accomplished" by the legislature. Id. at 572.
¶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
13
No. 2011AP2888
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.10
¶28 Significantly, when a person is penalized for his
first improper refusal, the court "shall revoke the person's
operating privilege for one year." Wis. Stat.
§ 343.305(10)(b)2. The revocation period is to begin 30 days
from the date of the refusal when no hearing was requested
within ten days of service of the Notice of Intent. Wis. Stat.
§ 343.305(10)(a). Yet, the implied consent law provides no
mechanism to reclaim the time lost to litigation if that penalty
10
For example, a person may be eligible for an occupational
license after the first 30 days of the revocation period. See
Wis. Stat. § 343.305(10)(b)2. If it is unclear when the
revocation period is to commence, then the time in which a
person may seek an occupational license is also uncertain. Id.14
No. 2011AP2888
is required because no timely request for a refusal hearing was
ultimately filed.
¶29 Therefore, the revocation period might not extend a
full year if more than 30 days is spent litigating whether there
was excusable neglect for not timely filing the request. The
statute requires that the revocation period must commence 30
days after refusal, but simultaneously requires that the
revocation period end one year after it is to commence. The
penalty structure could be subject to ambiguity in determining
how long a penalty must last.
¶30 To inject such ambiguity into an otherwise precise
penalty structure appears to be at odds with the nature of the
implied consent law and its legislative purposes. This court
has stated the legislative purposes of the implied consent law
in prior cases. It is meant to "obtain the blood-alcohol
content in order to obtain evidence to prosecute drunk drivers,"
which is "to be used to secure convictions" for operating a
motor vehicle while under the influence. State v. Brooks, 113
Wis. 2d 347, 355-56, 335 N.W.2d 354 (1983).
¶31 Thus, the "clear policy of the statute is to
facilitate the identification of drunken drivers and their
removal from the highways." State v. Neitzel, 95 Wis. 2d 191,
193, 289 N.W.2d 828 (1980). More pointedly, its purpose is "to
get drunk drivers off the road as expeditiously as possible and
with as little possible disruption of the court's calendar."
Brooks, 113 Wis. 2d at 359; see also State v. McMaster, 206 Wis.
2d 30, 46, 556 N.W.2d 673 (1996) (concluding that the purposes
15
No. 2011AP2888
stated in Brooks "speak to the overarching goal of all drunk
driving laws in this state.").
¶32 Nothing enumerated in those legislative purposes is
consistent with the concept of extending the ten-day time limit
due to excusable neglect. The promise of prompt revocation
following an improper refusal is a powerful incentive to submit
to chemical testing, the result of which is likely to be key
evidence in any case where a driver is charged with operating a
motor vehicle while intoxicated. See Wis. Stat. § 346.63(criminalizing the operation of a motor vehicle while
intoxicated and setting forth prohibited blood alcohol
concentrations). Eroding the precise penalty structure set
forth in the implied consent law and allowing for the delay of
refusal hearings diminishes any incentive to immediately consent
to a chemical test.
¶33 Extensions of the ten-day time limit also work to keep
suspected drunk drivers on the highways despite their refusal to
provide key evidence in their identification as drunk drivers.
A delayed refusal hearing likely entails a delay in any
revocation which might later occur, even assuming excusable
neglect exists in a given case. That delay is inconsistent with
the "clear policy" of the implied consent law, which is to
"facilitate the identification of drunk drivers and their
removal from the highways." Neitzel, 95 Wis. 2d at 193.
¶34 Furthermore, extensions of the ten-day time limit fail
to "get drunk drivers off the road as expeditiously as possible
and with as little possible disruption of the court's calendar."
16
No. 2011AP2888
Brooks, 113 Wis. 2d at 359. Additional litigation to extend an
otherwise precise ten-day time limit is a source of disruption
to the court's calendar where no such disruption exists if the
ten-day time limit is construed as mandatory. Accordingly, the
Karow factors counsel that the use of the term "shall" in Wis.
Stat. § 343.305(10)(a) should be construed as mandatory, not
directory.11
¶35 Despite the legislative mandate that the required time
limit is ten days after service of the Notice of Intent, Brefka
maintains that the statutory scheme allows for its extension due
to excusable neglect because the rules of civil procedure
generally allow for relief from judgments or orders on that
ground.12 No provision authorizing an extension of the ten-day
time limit due to excusable neglect is found in the text of Wis.
Stat. § 343.305(9)(a)4. The text of Wis. Stat. § 343.305(10)(a)
likewise makes no provision for its extension on that ground.
11
The mandatory nature of the revocation that follows a
failure to request a refusal hearing is reinforced by this
court's analysis in State v. Piddington, 2001 WI 24, ¶35, 241
Wis. 2d 754, 623 N.W.2d 528, which characterized the revocation
as "automatic." In that case, this court noted that "an accused
driver could challenge automatic revocation of his or her
license for refusing to submit to a chemical test under Wis.
Stat. § 343.305(9)." Id.12
Excusable neglect has been defined as "that neglect which
might have been the act of a reasonably prudent person under the
same circumstances," but which is not "synonymous with neglect,
carelessness or inattentiveness." Casper v. American Int'l
South Ins. Co., 2011 WI 81, ¶37, 336 Wis. 2d 267, 800 N.W.2d
880.
17
No. 2011AP2888
¶36 Procedures that arguably allow for an extension on the
ground of excusable neglect are, however, found in three other
procedural statutes, Wis. Stat. §§ 800.115,13 801.15(2)(a),14 and
806.07.15 Because Wis. Stat. § 801.01(2) applies the rules of
13
Wisconsin Stat. § 800.115, a municipal court procedure
statute, states as follows, in relevant part:
(1) A defendant may within 6 months after the judgment
is entered move for relief from the judgment because
of mistake, inadvertence, surprise, or excusable
neglect.
14
Wisconsin Stat. § 801.15(2)(a), a general civil procedure
statute, states as follows, in relevant part:
(2)(a) When an act is required to be done at or within
a specified time, the court may order the period
enlarged but only on motion for cause shown and upon
just terms. The 90 day period under s. 801.02 may not
be enlarged. If the motion is made after the
expiration of the specified time, it shall not be
granted unless the court finds that the failure to act
was the result of excusable neglect. The order of
enlargement shall recite by its terms or by reference
to an affidavit in the record the grounds for granting
the motion.
15
Wisconsin Stat. § 806.07, a general civil procedure
statute, states as follows, in relevant part:
(1) On motion and upon such terms as are just, the
court, subject to subs. (2) and (3), may relieve a
party or legal representative from a judgment, order
or stipulation for the following reasons:
(a) Mistake, inadvertence, surprise, or excusable
neglect;
. . . .
(2) The motion shall be made within a reasonable time,
and, if based on sub. (1)(a) or (c), not more than one
year after the judgment was entered or the order or
stipulation was made. A motion based on sub. (1)(b)
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civil procedure to special proceedings and a refusal hearing is
a special proceeding, Brefka contends that the ten-day time
limit set forth in Wis. Stat. §§ 343.305(9)(a)4. and (10)(a) may
be extended by the operation of Wis. Stat. §§ 801.01(2),
800.115, 801.15(2)(a), and 806.07, relying on State v. Schoepp,
204 Wis. 2d 266, 554 N.W.2d 236 (Ct. App. 1996).
¶37 In Schoepp, the court of appeals applied Wis. Stat.
§ 801.01(2) to refusal hearings. Id. at 271. The defendant was
arrested for operating a motor vehicle while under the influence
of an intoxicant. Id. at 269. After he refused to submit to a
chemical test and was issued a notice of intent to revoke his
operating privilege, he filed a request for a refusal hearing.
Id. Before the refusal hearing was held, the defendant issued
subpoenas for the deposition of the arresting officer and other
law enforcement officials who were involved in his arrest and
the events leading up to his alleged refusal. Id.
¶38 Interpreting Wis. Stat. § 801.01(2), the Schoepp court
determined that because Wis. Stat. § 343.305 does not provide a
different procedure for a defendant to obtain discovery, the
civil procedure statutes relating to discovery applied to the
refusal hearing. Id. at 272. The "plain language" of Wis.
shall be made within the time provided in s. 805.16. A
motion under this section does not affect the finality
of a judgment or suspend its operation. This section
does not limit the power of a court to entertain an
independent action to relieve a party from judgment,
order, or proceeding, or to set aside a judgment for
fraud on the court.
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Stat. § 801.01(2) required that the general discovery rules
apply in refusal hearings "except where different procedure is
prescribed by statute or rule."16 Id.
¶39 Unlike Schoepp, here the legislature has set forth a
"different procedure" from the general rules of civil procedure.
Wisconsin Stat. §§ 343.305(9)(a)4. and (10)(a) impose a
mandatory requirement that the refusal hearing must be requested
within ten days of service of the Notice of Intent. The penalty
for a refusal followed by a failure to request a refusal hearing
within ten days is also mandatory in requiring that "[i]f no
hearing was requested, the revocation period shall begin 30 days
after the date of the refusal." Id. at (10)(a).
¶40 Because the legislature has set forth a mandatory ten-
day time limit with precise penalties that rely on whether the
16
In 2006, the legislature amended Wis. Stat.
§ 343.305(9)(a) to limit discovery in refusal hearings. It
presently states as follows, in relevant part:
(9) Refusals; notice and court hearing. (a)
. . . .
Neither party is entitled to pretrial discovery in any
refusal hearing, except that, if the defendant moves
within 30 days after the initial appearance in person
or by an attorney and shows cause therefor, the court
may order that the defendant be allowed to inspect
documents, including lists of names and addresses of
witnesses, if available, and to test under s. 804.09,
under such conditions as the court prescribes, any
devices used by the plaintiff to determine whether a
violation has been committed.
See 2005 Wisconsin Act 332, § 4.
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No. 2011AP2888
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.
¶41 Having determined that the implied consent law sets
forth a mandatory ten-day time limit to request a refusal
hearing that may not be extended due to excusable neglect, we
turn to evaluate the effect of noncompliance on the court's
competency to hear Brefka's request that it be extended.
Although the mere fact that a statutory time limit is mandatory
does not always result in a loss of competency, in this case the
mandatory ten-day time limit is "central to the statutory
scheme." Bollig, 222 Wis. 2d at 566; Mikrut, 273 Wis. 2d 76,
¶10. The central role that the ten-day time limit plays within
the statutory scheme is revealed when it is placed in the
context of the legislative purposes of the implied consent law.
¶42 The mandatory obligation on the circuit court to
revoke a person's operating privilege if he does not file a
request for a refusal hearing within ten days of service of the
Notice of Intent furthers the legislative purposes of the
implied consent law. As discussed above, it assists with
"obtain[ing] the blood-alcohol content in order to obtain
evidence to prosecute drunk drivers," which is then "to be used
to secure convictions" for operating while under the influence.
Brooks, 113 Wis. 2d at 355-56. Additionally, it "facilitate[s]
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No. 2011AP2888
the identification of drunken drivers and their removal from the
highways." State v. Neitzel, 95 Wis. 2d 191, 193, 289 N.W.2d
828 (1980). Finally, it "get[s] drunk drivers off the road as
expeditiously as possible and with as little possible disruption
of the court's calendar." Brooks, 113 Wis. 2d at 359.
¶43 On the other hand, extensions of the ten-day time
limit due to excusable neglect arguably change the precise
penalty structure set forth in the implied consent law, and
those changes appear contrary to its legislative purposes. See
supra, ¶¶31-35. Therefore, those legislative purposes cannot be
fulfilled without strictly following the statutory mandate that
a refusal hearing must be requested within ten days of service
of the Notice of Intent. Mikrut, 273 Wis. 2d 76, ¶11 (quoting
Bollig, 222 Wis. 2d at 568-69). Given the necessity of a
mandatory ten-day time limit to accomplish the legislative
purposes of the implied consent law under these circumstances,
we conclude that it is "central to the statutory scheme" and
accordingly, the circuit court lacks competency to hear Brefka's
request to extend it due to excusable neglect. Id., ¶10.
IV
¶44 In sum, we conclude that the circuit court is without
competency to hear Brefka's request to extend the ten-day time
limit set forth in Wis. Stat. §§ 343.305(9)(a)4. and (10)(a).
The ten-day time limit is a mandatory requirement that may not
be extended due to excusable neglect. Because the mandatory
ten-day time limit is central to the statutory scheme, the
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No. 2011AP2888
circuit court lacked competency to hear Brefka's request to
extend it. Accordingly, we affirm the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
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No. 2011AP2888
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