State v. Scott W. Heimbruch , 2020 WI App 68 ( 2020 )

2020 WI App 68COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 2019AP1857
Complete Title of Case:
IN THE MATTER OF THE REFUSAL OF SCOTT W. HEIMBRUCH:
STATE OF WISCONSIN,
PLAINTIFF-APPELLANT,
V.
SCOTT W. HEIMBRUCH,
DEFENDANT-RESPONDENT.
Opinion Filed: September 24, 2020
Submitted on Briefs: June 24, 2020
JUDGES: Fitzpatrick, P.J., Kloppenburg, and Nashold JJ.
Appellant
ATTORNEYS: On behalf of the plaintiff-appellant, the cause was submitted on the
brief of Warren D. Zier, assistant district attorney, Waupaca.
Respondent
ATTORNEYS: On behalf of the defendant-respondent, the cause was submitted on the
brief of Dennis M. Melowski of Melowski & Associates, LLC,
Sheboygan.
2020 WI App 68COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 24, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2019AP1857 Cir. Ct. No. 2017TR2807
STATE OF WISCONSIN IN COURT OF APPEALS
IN THE MATTER OF THE REFUSAL OF SCOTT W. HEIMBRUCH:
STATE OF WISCONSIN,
PLAINTIFF-APPELLANT,
V.
SCOTT W. HEIMBRUCH,
DEFENDANT-RESPONDENT.
APPEAL from a judgment and an order of the circuit court for
Waupaca County: TROY NIELSEN, Judge. Reversed and cause remanded for
further proceedings.
Before Fitzpatrick, P.J., Kloppenburg, and Nashold JJ.
¶1 KLOPPENBURG, J. Scott W. Heimbruch was issued a notice of
intent to revoke operating privilege based on Heimbruch’s refusal to submit to a
No. 2019AP1857
chemical test of his blood after he was arrested for operating while intoxicated.
He requested a refusal hearing, and at the hearing Heimbruch moved to dismiss
the notice of intent to revoke operating privilege. See WIS. STAT. § 343.305(9)
(2017-18) (setting forth the procedures for requesting and holding a “refusal
hearing” on a notice of intent to revoke a person’s operating privilege). The
circuit court granted the motion because the script that the legislature requires the
requesting officer to read to the accused (the “Informing the Accused” form),1
which was read verbatim to Heimbruch, inaccurately states the law in one respect.
Specifically, the form contains information that inaccurately states the
consequences of refusing a test for a driver who is in a motor vehicle accident but
who is not suspected of intoxication. See State v. Blackman, 2017 WI 77, ¶¶5, 38,
377 Wis. 2d 339, 898 N.W.2d 774 (the Informing the Accused form inaccurately
states that if a driver who is “not suspected of a drunk-driving offense” refuses to
submit to a chemical test the driver’s license will be revoked). The State appeals,
arguing that the circuit court erred because Heimbruch was required and failed to
present evidence that the inaccurate information caused him to refuse to submit to
the test.
¶2 We conclude that Heimbruch was “adequately informed of his rights
under the law,” as required by Washburn County v. Smith, 2008 WI 23, ¶51, 308
Wis. 2d 65, 746 N.W.2d 243, where, under suspicion of operating while
1
As we discuss in detail below, the Informing the Accused form is a script, required to
be read by statute, that provides information about the legal consequences of consenting to
chemical testing and the legal consequences of refusing. See WIS. STAT. § 343.305(4) (2017-18).
We sometimes refer to the Informing the Accused form as “the form.”
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
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intoxicated, he was read a form that accurately states the consequences of refusal
for drivers suspected of intoxication, even though the form is inaccurate with
respect to drivers who are in a motor vehicle accident but who are not suspected of
intoxication. The officer accurately read the form required by statute and the
inaccurate information in the form does not apply to Heimbruch. Accordingly, the
circuit court erroneously granted Heimbruch’s motion to dismiss, and, therefore,
we reverse and remand for further proceedings.
BACKGROUND
¶3 The following facts are undisputed.
¶4 As stated, Heimbruch was issued a citation for driving while
intoxicated and a notice of intent to revoke operating privilege based on his refusal
to submit to a chemical test. A refusal hearing was held in January 2019 pursuant
to Heimbruch’s timely request for a refusal hearing and motion to dismiss the
notice of intent to revoke.
¶5 At the hearing, Waupaca County Sheriff’s Deputy Chad Repinski
testified that he stopped Heimbruch’s vehicle in July 2017 after he saw it cross the
centerline into the lane of oncoming traffic. Repinski testified that when
Heimbruch provided his driver’s license through the open driver’s side window,
Heimbruch’s speech was slurred, his eyes were red and glassy, he smelled strongly
of intoxicants, and he admitted to drinking and probably being over the legal limit.
Repinski testified that Heimbruch failed the standard field sobriety tests and that
the results of a preliminary breath test showed a .185 blood alcohol content.
Repinski arrested Heimbruch for driving while intoxicated.
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¶6 According to the incident report prepared by Repinski, after
Repinski arrested Heimbruch, he read Heimbruch the Informing the Accused
form. Repinski then asked Heimbruch to submit to a chemical test of his blood
and Heimbruch refused. Repinski issued Heimbruch a Notice of Intent to Revoke
Operating Privilege based on Heimbruch’s refusal to submit to the blood test.
¶7 Heimbruch argued that his motion to dismiss the notice of intent to
revoke must be granted because the statutory Informing the Accused form that
Repinski read verbatim to him misstates the law, specifically by incorrectly stating
the consequences for a person who refuses to submit to a blood test requested
under WIS. STAT. § 343.305(3)(ar)2. (“the accident without intoxication
provision”), which applies to a driver who is involved in an accident resulting in
death or great bodily harm but who is not suspected of intoxication. The State did
not dispute that the information identified by Heimbruch is inaccurate but argued
that Heimbruch is not entitled to dismissal because the inaccurate information in
the form does not apply to Heimbruch, from whom the blood test was requested
under § 343.305(3)(a) (“the intoxicated driver provision”), which applies to a
driver who has been arrested for operating while intoxicated; thus, the
consequences of refusal for Heimbruch were accurately stated.
¶8 The circuit court succinctly described the issue as follows: “[T]he
arresting officer did exactly what he was supposed to do, but the law [WIS. STAT.
§ 343.305(4)] is deficient and the form is deficient. But those deficiencies don’t
apply to this particular defendant’s situation.” The court indicated that the State
reasonably argued that “there should be some link … between an error in the form
and whether or not it actually impacted Mr. Heimbruch” but concluded, based on
Washburn County, 308 Wis. 2d 65, that it had no discretion but to grant the
motion to dismiss the notice of intent to revoke.
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¶9 The State promptly moved for reconsideration, reiterating its
different interpretations of Washburn County and related cases. The court denied
the motion because, according to the circuit court, the State failed to establish a
manifest error of law. The State appeals.
DISCUSSION
¶10 As stated, Officer Repinski issued Heimbruch a notice of intent to
revoke Heimbruch’s operating privilege for refusing to submit to a blood test as
requested. The Informing the Accused form that Repinski was required to read to
Heimbruch before issuing the notice of intent to revoke “is governed by WIS.
STAT. § 343.305(4), which sets forth the information that a law enforcement
officer shall read to the person from whom the test sample is requested.”
Washburn Cnty., 308 Wis. 2d 65, ¶52.
¶11 It is undisputed that: (1) Heimbruch refused to submit to a blood test
after he was arrested for operating while intoxicated; (2) the Informing the
Accused form that WIS. STAT. § 343.305(4) requires Repinski to read, and that
Repinski read verbatim to Heimbruch, accurately states the consequences of
refusal for Heimbruch; and (3) the form inaccurately states the consequences of
refusal for a person who is in a motor vehicle accident but who is not suspected of
operating while intoxicated.
¶12 The State argues that the notice of intent to revoke was erroneously
dismissed because, under Washburn County, 308 Wis. 2d 65, the inaccurate
information in the form is akin to additional “superfluous” information, and
Heimbruch was required and failed to show that the additional information caused
his refusal. Heimbruch argues that the notice of intent to revoke was properly
dismissed because, under Washburn County, the inaccurate information in the
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form is akin to the failure to provide “statutory” information, and Heimbruch was
not required to show actual prejudice, meaning that he was not required to show
that the inaccurate information caused his refusal.
¶13 Whether Heimbruch is entitled to dismissal of the notice of intent to
revoke depends on whether he was “adequately informed of his rights under the
law.” Id., ¶51. That determination requires the interpretation and application of
WIS. STAT. § 343.305 to the undisputed facts stated above, which is a question of
law that this court reviews independently of the circuit court while benefiting from
its analysis. Washburn Cnty., 308 Wis. 2d 65, ¶55.
¶14 We first present the pertinent statutory provisions. We next review
Blackman, 377 Wis. 2d 339, which held that the information in the form
inaccurately states the law regarding the consequences of refusal for a person not
suspected of operating while intoxicated. Finally, we review and apply the law
established in Washburn County, 308 Wis. 2d 65, to the undisputed facts of this
case and explain our conclusion that the notice of intent to revoke was erroneously
dismissed because: (1) Repinski accurately read the statutorily required form to
Heimbruch; (2) the inaccurate information in that form does not apply to
Heimbruch; (3) the information in that form that does apply to Heimbruch is
accurate; and (4) thus, Heimbruch was “adequately informed of his rights under
the law,” id., ¶51, despite the inclusion of the inapplicable-to-him inaccurate
information.
I. Pertinent Statutory Provisions.
¶15 The information that Repinski was required to provide to Heimbruch
when requesting that Heimbruch submit to the blood test is set forth in WIS. STAT.
§ 343.305(4), as follows:
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At the time that a chemical test specimen is requested under
sub. (3)(a), (am), or (ar), the law enforcement officer shall
read the following to the person from whom the test
specimen is requested:
“You have either been arrested for an offense that
involves driving or operating a motor vehicle while under
the influence of alcohol or drugs, or both, or you are the
operator of a vehicle that was involved in an accident that
caused the death of, great bodily harm to, or substantial
bodily harm to a person, or you are suspected of driving or
being on duty time with respect to a commercial motor
vehicle after consuming an intoxicating beverage.
This law enforcement agency now wants to test one
or more samples of your breath, blood or urine to determine
the concentration of alcohol or drugs in your system. If any
test shows more alcohol in your system than the law
permits while driving, your operating privilege will be
suspended. If you refuse to take any test that this agency
requests, your operating privilege will be revoked and you
will be subject to other penalties. The test results or the fact
that you refused testing can be used against you in court.
If you take all the requested tests, you may choose
to take further tests. You may take the alternative test that
this law enforcement agency provides free of charge. You
also may have a test conducted by a qualified person of
your choice at your expense. You, however, will have to
make your own arrangements for that test.
If you have a commercial driver license or were
operating a commercial motor vehicle, other consequences
may result from positive test results or from refusing
testing, such as being placed out of service or disqualified.”
Sec. § 343.305(4).
¶16 The Informing the Accused form must be read when an officer
requests a chemical test specimen under four provisions of WIS. STAT.
§ 343.305(3): 343.305(3)(a), (am), (ar)1., and (ar)2. The first provision,
§ 343.305(3)(a), which we refer to as the “intoxicated driver provision,” concerns
drivers who, like Heimbruch, are arrested on suspicion of intoxicated driving. The
second provision, § 343.305(3)(am), concerns drivers of commercial vehicles and
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is not at issue in this case. The third provision, § 343.305(3)(ar)1., concerns
drivers involved in an accident who are also suspected of intoxication and is also
not at issue in this case. The fourth provision, § 343.305(3)(ar)2., which we refer
to as the “accident without intoxication provision,” concerns drivers involved in an
accident who are suspected of violating a traffic law but are not suspected of
intoxication. We now summarize the two provisions at issue in this case: the
intoxicated driver provision and the accident without intoxication provision.
¶17 The intoxicated driver provision, WIS. STAT. § 343.305(3)(a),
provides that an officer may request that a person who has been arrested for
operating while intoxicated submit to a chemical test. If that person refuses, the
officer must prepare a notice of intent to revoke the person’s operating privilege.
Sec. 343.305(9)(a). The person may request a hearing, at which the only issues
are: (1) whether the officer had probable cause to believe the person was
operating while intoxicated; (2) whether the officer complied with § 343.305(4)’s
requirement that the officer read the Informing the Accused form; and (3) whether
the person refused the test other than because of a physical inability or physical
disability unrelated to intoxication. Sec. 343.305(9)(a)5. If any of these issues is
determined favorably to the person, the circuit court shall order that no action be
taken on the operating privilege because of the person’s refusal to take the test.
Sec. 343.305(9)(d). If the person does not request a hearing or if, at the hearing,
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the court determines that the person improperly refused to take the test, then the
court shall revoke the person’s operating privilege.2 Sec. 343.305(10).
¶18 The accident without intoxication provision, WIS. STAT.
§ 343.305(3)(ar)2., applies in situations where the operator of a vehicle is involved
in an accident that causes death or great bodily harm and is suspected of violating
a traffic law but is not suspected of intoxication. If the operator refuses to submit
to a chemical test, he or she may be arrested under § 343.305(3)(a) and his or her
operating privilege may be revoked through the same process set forth in the
preceding paragraph.
¶19 The parties do not dispute that only the intoxicated driver provision,
WIS. STAT. § 343.304(3)(a), applies to Heimbruch.
II. State v. Blackman.
¶20 We now turn to Blackman, 377 Wis. 2d 339, ¶5, which held in
pertinent part that the Informing the Accused form inaccurately states the
consequences of refusal for a driver who is requested to submit to a chemical test
under the accident without intoxication provision, WIS. STAT.
§ 343.305(3)(ar)2.—that is, for a driver like Blackman who was not suspected of
driving while intoxicated. The court explained this part of its holding as follows.
The Informing the Accused form states that “If you refuse to take any test that this
2
Heimbruch essentially concedes that none of the issues to which a refusal hearing is
limited can be determined favorably to him: (1) Repinski had probable cause to believe that
Heimbruch was operating while intoxicated; (2) Repinski read the Informing the Accused form
verbatim as required by WIS. STAT. § 343.305(4); and (3) Heimbruch refused to submit to the
blood draw requested by Repinski other than because of a physical inability or physical disability
unrelated to intoxication. See § 343.305(9)(a)5. (stating the three issues).
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agency requests, your operating privilege will be revoked and you will be subject
to other penalties.” Blackman, 377 Wis. 2d 339, ¶37; § 343.305(4). However, the
accident without intoxication provision applicable to Blackman “states only” that a
driver who refuses to take any test under that provision may be arrested.3
Blackman, 377 Wis. 2d 339, ¶¶32, 38; § 343.305(3)(ar)2. Moreover, if such a
driver requests a refusal hearing, the revocation of the operating privilege is
unenforceable against the driver. Blackman, 377 Wis. 2d 339, ¶40.
¶21 This is so for two reasons. First, the statutes provide only for
revocation after arrest, but arrest is not required under the accident without
intoxication provision. WIS. STAT. §§ 343.305(3)(a), (3)(ar)2. and (9)(a). Second,
if a hearing is requested, the State must prove that the officer had probable cause
to believe that the driver was operating while intoxicated, but such probable cause
cannot be proven when a request is made of a driver who is not suspected of
driving while intoxicated. Blackman, 377 Wis. 2d 339, ¶¶41-44, 50-51. Thus, the
form should read not that such a driver’s operating privileges “will be revoked”
but that, under the accident without intoxication provision, the driver’s “operating
privilege would be revoked [only] if he [or she] failed to request a refusal
hearing.” Id., ¶38.
¶22 In his argument to the circuit court here, Heimbruch’s counsel
conceded that the Informing the Accused form at issue in Blackman was
unchanged when it was read to Heimbruch. Heimbruch also conceded that this
3
As our Supreme Court noted, the circuit court in Blackman observed in connection
with the arrest language, “‘The question of the century is arrested for what?’” State v. Blackman,
2017 WI 77, ¶32 n.11, 377 Wis. 2d 339, 898 N.W.2d 774 (quoting the circuit court).
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erroneous information in the Informing the Accused form does not apply to
Heimbruch, to whom the accident without intoxication provision does not apply.
Heimbruch does not state otherwise on appeal.4
III. Washburn County v. Smith.
¶23 We now turn to Washburn County, on which both parties rely to
support their arguments on appeal.
¶24 In Washburn County, the officer arrested Washburn for operating
while intoxicated, read the Informing the Accused form as set forth in WIS. STAT.
§ 343.305(4) to Washburn, and requested that Washburn submit to a breath test.
Washburn Cnty., 308 Wis. 2d 65, ¶¶12, 39-40. When Washburn expressed
4
We caution Heimbruch’s counsel that he appears to have inaccurately stated the
Blackman holding before the circuit court and appears to inaccurately impute that misstatement
to the circuit court’s decision on appeal. In his brief to the circuit court, he stated that “the
Blackman court found that the [Informing the Accused form] misrepresented the law to
suspected drunk drivers.” In his brief on appeal, he states that the circuit court’s decision was
based on the form’s containing “erroneous information regarding potential penalties which could
be imposed against an individual suspected of certain drunk-driving related offenses.” As stated
in the text, the Blackman court did not address “suspected drunk drivers” but ruled that the form
inaccurately states the potential penalties that can be imposed on an individual not suspected of
driving while intoxicated. The circuit court stated that Blackman is “not all that important in” its
determination and that it was relying on Washburn County v. Smith, 2008 WI 23, 308 Wis. 2d
65, 746 N.W.2d 243, and State v. Wilke, 152 Wis. 2d 243, 448 N.W.2d 13 (Ct. App. 1989),
which we discuss below.
We also note that the State did not file a reply brief. We caution counsel that the failure
of an appellant to file a reply brief not only risks conceding arguments made in the respondent’s
brief, see United Co-op. v. Frontier FS Co-op., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738
N.W.2d 578 (appellant’s failure to respond in reply brief to an argument made in respondent’s
brief may be taken as a concession), but also hinders this court’s consideration of issues that it
can be assured have been completely researched and argued, particularly in a case that both the
State and the respondent agree warrants publication. Nevertheless, we have not allowed the
State’s failure to file a reply brief to compromise our analysis of the issues raised and arguments
made in the briefs that have been filed.
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concern regarding the penalties that he might be facing, the officer mistakenly told
Washburn that if he refused he would get a hearing within ten days, when the law
provides only that a driver is entitled to request a hearing within ten days.5 Id.,
¶¶39-41, 51, 83. Washburn ultimately refused to submit to the breath test and
argued that his refusal was not improper in light of this misstatement. Id., ¶¶38,
46.
¶25 The court identified two lines of cases addressing challenges to the
information provided by law enforcement to drivers when requesting that the
drivers submit to chemical tests. Id., ¶¶55-72. One line of cases involves
situations in which the officer failed to provide the information that is required by
WIS. STAT. § 343.305(4). Washburn Cnty., 308 Wis. 2d. 65, ¶72. Those cases
include State v. Wilke, 152 Wis. 2d 243, 448 N.W.2d 13 (Ct. App. 1989)
(addressing a situation where the officer failed to give the defendant one
component of the statutorily required information relating to penalties), and State
v. Schirmang, 210 Wis. 2d 324, 565 N.W.2d 225 (Ct. App. 1997) (addressing a
situation where the officer read an outdated form that misstated the current
penalties for drivers who had two or more prior convictions). Washburn Cnty.,
308 Wis. 2d 65, ¶¶59, 63, 72. In such cases, where the officer fails to provide the
information set forth in § 343.305(4), the Washburn County court affirmed the
rule stated in Wilke and held that the defendant’s operating privileges may not be
revoked based on refusal to submit to chemical testing. Washburn Cnty., 308
5
The officer also did not advise Washburn, who had a Louisiana operator’s license, of
the penalties he would face under Louisiana law which differed from the Wisconsin penalties
stated in the form. Washburn Cnty., 308 Wis. 2d 65, ¶100. The court ruled that the officer has
no obligation to advise the driver about another state’s law, and that all that matters is that the
officer accurately states Wisconsin law. Id., ¶¶100-101.
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Wis. 2d 65, ¶72. That is, the defendant is not required to show prejudice arising
from the failure to provide the requested information. Id., ¶64 (citing Wilke for
the rule that when an officer fails to furnish the statutorily required information set
forth in § 343.305(4) the circuit court must order that no action be taken on the
driver’s operating privilege).
¶26 A second line of cases involves situations in which the officer
“provided all the statutorily required information but then provided more
information in excess of his [or her] duty under [WIS. STAT.] § 343.305(4).”
Washburn Cnty., 308 Wis. 2d 65, ¶72. Those cases include County of Ozaukee v.
Quelle, 198 Wis. 2d 269, 542 N.W.2d 196 (Ct. App. 1995) (addressing a situation
in which the officer read the form as set forth in § 343.305(4) and then exceeded
his duty under that statute by correctly advising the driver that she could refuse to
submit to the test), and State v. Ludwigson, 212 Wis. 2d 871, 569 N.W.2d 762(Ct. App. 1997) (addressing a situation in which the officer read the form as set
forth in § 343.305(4) but incorrectly explained the penalty that applied to the
driver). Washburn Cnty., 308 Wis. 2d 65, ¶¶57, 67, 72. In such cases, where the
officer provides the information as set forth in § 343.304(5) along with additional
information beyond the language mandated in that statute, the Washburn County
court affirmed that the rule stated in Quelle “as interpreted by Ludwigson”
governs. Washburn Cnty., 308 Wis. 2d 65, ¶72. Specifically, the court held that
the Quelle three-pronged inquiry applies6 and that, where the additional
6
The three-pronged inquiry for determining whether the information imparted by the
officer is adequate is:
(1) Has the law enforcement officer not met, or
exceeded his or her duty under §§ 343.305(4) … to provide
information to the accused driver;
(continued)
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information is erroneous, “it is the defendant’s burden to prove by a
preponderance of the evidence that the erroneous additional information in fact
caused the defendant to refuse to submit to chemical testing.” Washburn Cnty.,
308 Wis. 2d 65, ¶¶70, 72.
¶27 The Washburn County court applied the Quelle/Ludwigson rule to
the case before it, where the officer read the statutorily required form verbatim and
then provided additional information. Washburn Cnty., 309 Wis. 2d 65, ¶¶73, 77,
78. The court determined that the officer exceeded his duty under § 343.305(4),
that the officer incorrectly told Washburn that he would be entitled to a refusal
hearing within ten days, and that Washburn failed to make a prima facie case
showing that the erroneous statement about a hearing contributed to Washburn’s
refusal to submit to chemical testing. Washburn Cnty., 308 Wis. 2d 65, ¶¶77-78,
84, 86. Accordingly, the court ruled that Washburn failed to satisfy the third
prong of the inquiry and affirmed the circuit court’s order revoking his operating
privileges. Id., ¶¶86, 89.
¶28 In sum, Washburn County confirmed the rule that no action may be
taken, including revoking a driver’s operating privileges, upon the driver’s refusal
to submit to a chemical test where the officer fails to provide the information
stated in WIS. STAT. § 343.305(4). Washburn Cnty., 308 Wis. 2d 65, ¶72.
(2) Is the lack or oversupply of information misleading;
and
(3) Has the failure to properly inform the driver affected
his or her ability to make the choice about chemical testing?
Washburn Cnty., 308 Wis. 2d 65, ¶56 (quoted source omitted).
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Washburn County also confirmed the rule that whether a driver’s operating
privileges may be revoked upon the driver’s refusal where the officer provides
excess information in addition to that stated in § 343.305(4) depends on the result
of the three-part Quelle inquiry under which the driver must prove that the
additional information contributed to his or her refusal to submit to chemical
testing. Washburn Cnty., 308 Wis. 2d 65, ¶72.
IV. Analysis.
¶29 We now apply these legal principles to the undisputed facts of this
case.
¶30 We begin with the statement in Washburn County that “[a] refusal
to submit to a chemical test for intoxication cannot result in revocation of
operating privileges unless the person has first been adequately informed of his [or
her] rights under the law.” Washburn Cnty., 308 Wis. 2d 65, ¶51. As we next
explain, we conclude that Heimbruch was adequately informed of his rights under
the law.
¶31 Under WIS. STAT. § 343.305(4), Heimbruch has the right to be read
the Informing the Accused form. Sec. 343.305(4) (“the law enforcement officer
shall read the following to the person from whom the test specimen is requested”).
Repinski read the form verbatim. Although that form includes an inaccurate
statement of the potential consequences of refusal for a person who is requested to
submit to a chemical test under the accident without intoxication provision, the
inaccurate statement does not apply to Heimbruch, who was requested to submit to
a blood draw under the intoxicated driver provision. That is, the inaccurate
statement does not include any information as to Heimbruch’s rights as a person
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arrested for operating while intoxicated. Accordingly, Heimbruch was
“adequately informed of his rights under the law.”
¶32 The State argues that the inaccurate information in the form is
superfluous information that does not apply to Heimbruch and is, therefore, akin to
additional information provided by an officer in excess of the form’s requirements.
Thus, according to the State, under Washburn County, Heimbruch was required
and failed to show that the inaccurate information caused him to refuse. The
State’s argument fails because Repinski did not exceed his statutory duty by
providing any information in addition to that required by WIS. STAT. § 343.305(4).
The State fails to persuade this court that this situation falls within the
Quelle/Ludwigson line of cases in which the defendant must show prejudice.
¶33 Heimbruch argues, as best we can understand, that the inaccurate
information is a failure to provide the information stated in WIS. STAT.
§ 343.305(3)(ar)2. (the accident without intoxication provision) and is, therefore,
“a deficit” that is akin to a failure to provide information that is statutorily
required. But, the officer’s obligation is to read only the form set forth in
§ 343.305(4), and, as Heimbruch himself concedes, Repinski read verbatim to
Heimbruch the form that was required “by legislative mandate.” Thus, Heimbruch
fails to persuade this court that this situation falls within the Wilke line of cases in
which the officer fails to abide by that legislative mandate and no prejudice need
be shown.
¶34 Rather, as Heimbruch also asserts, an accused person “has the right
to know what the actual, proper statutory procedures are.” Repinski honored that
right as to the “actual, proper statutory procedures” that apply to Heimbruch.
Thus, Repinski adequately informed Heimbruch of his rights under the law, which
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under Washburn County is what the law requires. Washburn Cnty., 308 Wis. 2d
65, ¶51.
¶35 Heimbruch appears to acknowledge this deficiency in his argument
when he urges this court to rule in his favor as a “sanction” against the legislature
for failing to amend the statutorily required form after our Supreme Court held in
Blackman that the form inaccurately states the law that applies to drivers who are
not suspected of operating while intoxicated. Heimbruch cites no law that
authorizes this court to, in Heimbruch’s words, “light a fire under the legislature”
by impeding “the government’s ability to prosecute suspected drunk drivers”
through affirming the dismissal of the notice of intent to revoke his operating
privilege. Accordingly, we do not consider this argument further. See Industrial
Risk Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318
Wis. 2d 148, 769 N.W.2d 82 (“Arguments unsupported by legal authority will not
be considered, and we will not abandon our neutrality to develop arguments.”).
CONCLUSION
¶36 Heimbruch refused to submit to a blood draw as requested after he
was arrested for operating while intoxicated. He argues that the notice of intent to
revoke that was issued upon his refusal was properly dismissed because the
statutorily required Informing the Accused form that the officer read verbatim
before making the request inaccurately states the consequences of refusal for
persons not suspected of operating while intoxicated. For the reasons stated, we
conclude that, as required by our Supreme Court in Washburn County, 308
Wis. 2d 65, ¶51, Heimbruch was “adequately informed of his rights under the
law,” because the officer accurately read the form required by statute and the
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No. 2019AP1857
inaccurate information in the form does not apply to Heimbruch. Accordingly, we
reverse and remand for further proceedings.
By the Court.—Judgment and order reversed and cause remanded
for further proceedings.
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