Bardwell, Matter of
| Decision Date | 06 June 1978 |
| Docket Number | No. 77-157,77-157 |
| Citation | 83 Wis.2d 891,266 N.W.2d 618 |
| Parties | In the Matter of the Refusal of Richard W. BARDWELL to submit to chemical test. CITY OF MADISON, Appellant, v. Richard W. BARDWELL, Respondent. |
| Court | Wisconsin Supreme Court |
Henry A. Gempeler, City Atty., and John E. Rothschild, Asst. City Atty., on brief, for appellant.
Robert I. Perina and Perina & Hoyt, Madison, on brief, for respondent.
On March 4, 1977, Richard W. Bardwell was arrested on Mineral Point Road in Madison, Wisconsin, and issued a citation for operating a motor vehicle while under the influence of an intoxicant, contrary to Madison Ordinance No. 12.64(1)(a), adopting sec. 346.63(1)(a), Stats. Wisconsin's Implied Consent Statute, sec. 343.305, Stats., provides that any person issued a citation for driving while intoxicated must submit to a chemical test designated by the Police Department if so requested by the traffic officer unless the refusal is reasonable. The issue here is whether respondent Richard W. Bardwell's refusal to submit to the designated breath test, because he considered the breath test to be unreliable, is a reasonable refusal under the statute.
Upon being issued the citation, the respondent was taken to the Police Department where he was informed, pursuant to subsection (2) of the implied consent statute, that he is deemed to have consented to a chemical test of his breath, blood, or urine for the purpose of determining the amount of alcohol in his blood; that if he refuses to submit to the test, he is entitled to a hearing, and if his refusal is found to be unreasonable or if he does not request a hearing, his operator's license will be suspended for sixty days; that in addition to the breath test designated by the Police Department he may, upon request, have an alternate test that the police were prepared to administer or a chemical test of his choice at his own expense.
The respondent refused to take the breath test and asked for a blood test instead. Because of the respondent's refusal to take the designated breath test, pursuant to subsection (2)(b), no test was given; instead, Officer Chudnow filed a report of the respondent's refusal with the court.
The court notified the respondent that the Division of Motor Vehicles intended to suspend his operator's license, and the respondent requested a hearing pursuant to sec. 343.305(7)(c), Stats. The hearing was held on May 11, 1977. At the hearing, the respondent stipulated to the fact that Officer Chudnow had probable cause to believe the respondent was driving while under the influence of an intoxicant. The respondent testified that he refused to take the breath test because, based on his experience as a judge and district attorney, he considered the blood test to provide the only really significant evidence of intoxication. He testified further that the blood test was the best test and that the blood test would have been convenient in his case since his own hospital, the Methodist Hospital, was just around the corner. In a memorandum decision, dated May 27, 1977, the court found that the respondent's refusal was reasonable: "The Court feels that defendant's experience and understanding of the pitfalls in the use of the breathalyzer test is surely as substantial a basis for refusing as utter drunkeness." The City has appealed.
Since the appeal was filed, the respondent was convicted of driving while intoxicated. He was ordered to pay a fine and to participate in a group treatment center, but his license was not suspended.
Sec. 343.305(1), Stats., of the implied consent statute states as follows:
Any driver who unreasonably refuses to submit to a designated test given in compliance with the statute will lose his driving privileges for sixty days. 1 Sec. 343.305(2)(a)2.
The respondent's first contention is that the phrase "and (the agency) may designate which of the aforesaid tests shall be administered" is ambiguous because it can be read to require the agency to designate either one or both of the two tests that the agency must be prepared to give. He argues that the statute must be strictly construed to require the designation of both tests. Since the court did not find that the Police Department offered the respondent both tests, he argues that the Department did not comply with the statute and therefore that he reasonably refused the request to submit to the breath test.
Although sec. 343.305(1), Stats., considered in isolation, can be construed to require the agency to designate two tests so that the driver can select which of the two to take, that construction is contrary to the language of the statute taken as a whole. Subsection (4) gives the driver the option of having an alternate test of his choice once he has submitted to a chemical test administered at the request of the officer. Similarly, subsection (2)(a)4 requires the agency to inform the driver that in addition to "the test designated by the . . . agency under sub. (1), he may have an additional test as provided in sub. (4)." (Emphasis added.) These two subsections suggest that under subsection (1) the agency may designate one test and that the driver must take that test or risk suspension of his license unless his refusal is otherwise reasonable. Only if he submits to the designated test may he have an alternate test and still comply with the law. 2
The respondent contends that, unless an agency is required to offer two tests, the requirement that the agency be prepared to administer two tests is pointless. This contention is without merit. By allowing the agency to designate the first test, but to be prepared to administer an additional test, the legislature has insured that even an indigent driver who complies with the law can have the benefit of a second test regarding the degree of his intoxication. Though nothing in the implied consent law prohibits the agency from designating both tests and giving the driver the choice of either one, the statute does not require it to do so. 3 Contrary to what the respondent claims, the Police Department's designation of the breath test complied with the law, and the respondent's refusal on the ground that he was not given the choice of two tests is not reasonable.
The trial court concluded that the respondent's experience with the breath test during twenty-five years as a judge and district attorney gave him a reasonable basis for refusing to take the designated test. Sec. 343.305(7)(c), Stats., provides that driving privileges will be suspended only if the driver was informed of his rights under the implied consent law and only if his refusal is unreasonable. 4
The purpose of the implied consent law is to facilitate the taking of tests for intoxication. Scales v. State, 64 Wis.2d 485, 219 N.W.2d 286 (1974). 5 It must be liberally construed in light of its purpose to effectuate its policies. Id. Thus far this court has considered whether a refusal to take a breath test is reasonable in only one case, State v. Bunders, 68 Wis.2d 129, 227 N.W.2d 727 (1975). There the court held that the arresting officer's failure to give Miranda warnings will not excuse a refusal to take a designated chemical test.
However, several other states have enacted implied consent laws similar to ours, and cases involving these statutes can provide some guidance for the court's construction of that requirement in Wisconsin. A person can reasonably refuse to take a breath test if it is medically inadvisable to take the test. See, e. g., Burson v. Collier, 226 Ga. 427, 175 S.E.2d 660 (1970), and Department of Public Safety v. Orr, 122 Ga.App. 439, 177 S.E.2d 164 (1970), cases in which the court allowed persons with emphysema to refuse a breath test. Compare: Pfeffer v. Department of Public Safety, 136 Ga.App. 448, 221 S.E.2d 658 (1975), in which the court held that a person with a sore throat and swollen lymph glands could not refuse a breath test, even though his physician advised him to breath through his nose as much as possible to alleviate throat irritation. The Minnesota court has held that a refusal to submit to a test based on advice given by counsel is reasonable if the police either misled the driver into believing that a refusal for this reason was reasonable or made no attempt to explain to a confused driver that regardless of what his lawyer said he must permit testing or lose his license. State Department of Public Safety v. Lauzon, 302 Minn. 276, 224 N.W.2d 156 (1974). In Hall v. Secretary of State, 60 Mich.App. 431, 231 N.W.2d 396 (1975), the court held that an arbitrary refusal of the arresting officer to permit the driver to make a phone call was coercive and justified the driver in refusing to comply with the order to submit to a chemical test.
In Elliott v. Dorius, 557 P.2d 759 (Utah 1976), the court was faced with the same contention made by the respondent here. It is also significant that the Utah implied consent statute there construed...
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