State v. Bunders, S

• Decision Date: 15 April 1975
• Docket Number: No. S,S
• Citation: 68 Wis.2d 129,227 N.W.2d 727
• Parties: STATE of Wisconsin, Respondent, v. Lela BUNDERS, Appellant. tate 173.
• Court: Wisconsin Supreme Court

Page 727

227 N.W.2d 727

68 Wis.2d 129

STATE of Wisconsin, Respondent, v. Lela BUNDERS, Appellant.

No. State 173.

Supreme Court of Wisconsin.

April 15, 1975.

The order appealed from directed the administrator of the Division of Motor Vehicles to suspend the driver's operating privileges of the appellant for a period of sixty days because of her unreasonable refusal to submit to chemical testing for intoxication under sec. 343.305, Stats.

In the early morning hours of August 12, 1974, Trooper K. P. Rocksvold of the Wisconsin State Patrol observed an automobile without its headlights on heading west on Highway 18 in the city of Prairie due Chien. He pursued and stopped the car. He observed the driver, defendant Lela Bunders, get out of the car and stagger. Rocksvold also observed that she smelled of alcoholic beverage, was unclear in her speech, and was loud and uncooperative. The defendant asked Rocksvold to take her home because she had been drinking. He refused and placed her under arrest for driving while under the influence of an intoxicant and then transported her to the Crawford County Sheriff's office. At the sheriff's office, the defendant was issued a citation for operating a vehicle while under the influence of an intoxicant. He informed her, pursuant to sec. 343.305, Stats., Wisconsin's implied consent law, that she was deemed to have consented to a chemical test to determine the amount of alcohol in her blood, that if she unreasonably refused such test her driving privileges would be revoked for sixty days, that she could request a hearing to establish the reasonableness of her refusal, that if she did not want to submit to a breath test she could have one of several other chemical tests, performed by her own doctor if she wished, and that if blood was to be withdrawn it would be done only by a physician. No Miranda warning was given but the defendant was allowed to make several phone calls and there is no evidence she ever requested an attorney.

The defendant refused to submit to a breathalyzer or any other tests and was subsequently released. She requested a hearing pursuant to sec. 343.305(7)(c), Stats., at which the only testifying witness was Trooper Rocksvold. The trial court found her refusal was unreasonable and ordered that the administrator suspend her driving privileges for sixty days.

The defendant appeals.

R. J. Satter, Prairie du Chien, for appellant.

Bronson C. La Follette, Atty. Gen., Albert Harriman, Asst. Atty. Gen., for respondent.

BEILFUSS, Justice.

The defendant asserts that because she was not advised of her right to counsel her refusal to submit to the chemical test was not unreasonable.

She contends that she was entitled to be advised of her constitutional rights, including the right to counsel, before she refused to submit to the chemical test by virtue of the Miranda rule. ¹

Sec. 343.305(7)(c), Stats., provides that driving privileges shall be suspended only if the refusal to submit to chemical testing was unreasonable. The defendant asserts on appeal that she had a right to the presence of counsel, a right to be so informed, and that her failure to be so informed makes her request to submit to testing reasonable.

The state contends that there is no such right to counsel prior to chemical testing for alcoholic blood content, and that therefore the failure to be so advised has no bearing on the reasonableness Vol non of the refusal.

The defendant cites only one case to support her position and that case, being inapposite, provides no real support whatsoever. The case is People v. Ceccone (1968), 260 Cal.App.2d 886, 67 Cal.Rptr. 499, where a California Court of Appeals reversed the trial court's conviction because officers, upon discovering a bag of marijuana in the defendant's car, failed to advise him of his Miranda rights prior to asking him if the marijuana was his.

It is our opinion that this case is controlled by two United States Supreme Court decisions. In Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, decided one week after Miranda, the defendant had been arrested for drunken driving following a collision in which he was involved. At the direction of the police, a physician withdrew a blood sample to measure alcoholic content. Following his conviction, the defendant raised several constitutional objections to the withdrawal of his blood, including an alleged violation of his right against self-incrimination. The United States Supreme Court rejected all of these claims.

As to the self-incrimination aspect, the court stated:

'. . . We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends.' Id., page 761, 86 S.Ct., page 1830.

'. . . Not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis. Petitioner's testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone. Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds.' Id., page 765, 86 S.Ct., page 1832.

In United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, the defendant contended, inter alia, that he was entitled to the presence of counsel at a post-indictment lineup. The Supreme Court...