State v. Disch, 85-1231-CR

• Citation: 129 Wis.2d 225,385 N.W.2d 140
• Decision Date: 16 April 1986
• Docket Number: No. 85-1231-CR,85-1231-CR
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Cynthia DISCH, Defendant-Respondent.
• Court: United States State Supreme Court of Wisconsin

Page 140

385 N.W.2d 140

129 Wis.2d 225

STATE of Wisconsin, Plaintiff-Appellant, v. Cynthia DISCH, Defendant-Respondent.

No. 85-1231-CR.

Supreme Court of Wisconsin.

Argued March 5, 1986.

Opinion Filed April 16, 1986.

Daniel J. O'Brien, Asst. Atty. Gen., argued, for plaintiff-appellant; Bronson C. La Follette, Atty. Gen., on brief.

Archie E. Simonson, Madison, for defendant-respondent.

SHIRLEY S. ABRAHAMSON, Justice.

This is an appeal from an order of the circuit court for Dane county, Circuit Court Judge James C. Boll, suppressing blood alcohol test results on the grounds that the police officer failed to comply with the procedures set forth in sec. 343.305(2)(b) and sec. 343.305(3)(a), Stats. 1979-80. ¹ The court granted the state's petition to bypass the court of appeals. Sec. 808.05, Stats. 1983-84.

We hold that sec. 343.305(2)(c), Stats. 1979-80, not secs. 343.305(2)(b) and 343.305(3)(a), is applicable in this case. Because the police officer complied with the procedures set forth in subsection (2)(c), we reverse the suppression order and remand the cause to the circuit court.

The facts are set forth in the circuit court's findings of fact made at the suppression hearing. On August 8, 1980, Cynthia Disch, the defendant, was operating a motor vehicle which collided with another automobile. On August 10, 1980, a passenger in the defendant's car died from injuries sustained in the accident. On January 21, 1981, the defendant was charged under sec. 940.09 with causing death by negligent operation of a motor vehicle while under the influence of an intoxicant.

Immediately after the accident the defendant was taken to a Madison hospital. A Madison police officer placed the defendant under arrest (according to the circuit court's findings) and requested the defendant to consent to the taking of a blood sample. The defendant signed a written consent form. The officer did not issue a citation and did not give the defendant the information set forth in sec. 343.305(3)(a). The police officer directed two hospital employees to take the blood sample. The test result was a blood alcohol content of .121 percent by weight.

The defendant asserts that the blood test results must be suppressed because the officer failed to comply with sec. 343.305(2)(b) and sec. 343.305(3)(a), Stats. 1979-80. The state asserts that these provisions are not applicable and that the case is governed by sec. 343.305(2)(c). ²

The applicable statute is sec. 343.305, Stats. 1979-80. An analysis of this statute shows that if sec. 343.305(2)(c) applies, secs. 343.305(2)(b) and 343.305(3)(a) do not.

Sec. 343.305(1), Stats. 1979-80, provides that "[a]ny person who drives or operates a motor vehicle upon the public highways of this state ... shall be deemed to have given consent to ... tests of his or her breath, blood or urine, for the purpose of determining the presence or quantity in his or her blood or breath, of alcohol or controlled substances...." As we noted in State v. Nordness, 128 Wis.2d 15, 381 N.W.2d 300, 305 (1986), "subsection (1) merely declares legislative policy, namely, that those who drive consent to chemical testing. The remainder of the statute outlines the procedures to be used for implementing this policy."

Sec. 343.305(2) sets forth the steps the law enforcement officer is to follow to take a breath, blood, or urine test.

Subsection (2)(b) provides that a law enforcement officer may, upon arrest and issuance of a citation, request the person to provide a sample. The subsection reads as follows:

"(b) A law enforcement officer may, upon arrest of and issuance of a citation to a person for violation of s. 346.63(1) or a local ordinance in conformity therewith, request the person to provide a sample of his or her breath, blood or urine for the purpose specified under (1)." (Emphasis added.)

Subsection (2)(c) specifically provides that a law enforcement officer may administer a test to a person who is "unconscious or otherwise not capable of withdrawing consent" when the officer has probable cause to believe that the person has violated sec. 346.63(1) or a local ordinance in conformity with that section and the officer has arrested that person. Sec. 343.305(2)(c) reads as follows:

"(c) A person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent under this subsection, and if a law enforcement officer has probable cause to believe that the person has violated s. 346.63(1) or a local ordinance in conformity therewith, the person may be arrested therefor and a test may be administered to the person."

Sec. 343.305(3)(a) requires the law enforcement officer to give certain information to the person at the time the officer requests the person to take a test. Sec. 343.305(3)(a) reads as follows:

"(3)(a) A law enforcement officer requesting a person to take a test under sub. (2) shall at the time of the request and prior to the administration of any such test inform the person:

"1. That he or she is deemed to have consented to tests under sub. (1);

"2. That if he or she refuses to submit to any such test, except as permitted under sub. (2)(a), his or her operating privilege shall be revoked for not less than 6 months nor more than one year under sub. (9); and

"3. That in addition to the tests designated by the law enforcement agency under sub. (1), he or she may have an additional test under sub. (5)." (Emphasis added.)

Although sec. 343.305 is not easy reading for a law enforcement officer or a court and the subsections of 343.305 do not fit together well, sec. 343.305(3)(a) clearly states that it applies when a law enforcement officer requests a person to take a test under subsection (2) of sec. 343.305. The statute also makes clear that a law enforcement officer makes a request for a sample or a test when the officer is proceeding under SECS. 343.305(2)(A), (2)³(am) ⁴ and (2)(b). In contrast, there is no reference in subsection (2)(c) to the officer making a request for a sample or a test.

Sec. 343.305(2)(c) obviates the necessity of an officer's request for a test or a blood sample. This subsection comes into play only when the person is unconscious or otherwise not capable of withdrawing consent. If a person is unconscious or otherwise not capable of withdrawing consent, it would be useless for the officer to request the person to take a test or to give a sample. It would be just as useless for the officer to inform an unconscious person or one who is otherwise not capable of withdrawing consent that he or she is deemed to have consented to tests, that refusal to submit results in revocation of operating privileges and that an additional test is available under sub. (5). Sec. 343.305(3)(a). We should not construe statutes to lead to unreasonable or absurd results. Labor & Farm Party v. Elections Board, 117 Wis.2d 351, 358, 344 N.W.2d 177 (1983); State v. Burkman, 96 Wis.2d 630, 642, 292 N.W.2d 641 (1980). We conclude that when the requirements of sec. 343.305(2)(c) are met, an officer may administer a test without complying with sec. 343.305(3)(a).

We therefore must determine whether sec. 343.305(2)(c) is applicable in this case. The first issue is whether the defendant was "unconscious or otherwise not capable of withdrawing consent." The circuit court did not decide this question. The circuit court, did, however, expressly find that although the defendant signed a consent form, her physical and emotional state prevented her from being able to consent voluntarily at the time she signed the form. The circuit court concluded that "when you look at the defendant's condition in the hospital, where the Officer himself indicated that she was in a stupor, she indicates she wasn't really sure what they were saying to her. Under these circumstances, it seems to me that to say, under the totality of the circumstances, that her consent was voluntary, would not be true."

Although the circuit court did not decide whether the defendant was "unconscious or otherwise not capable of withdrawing consent" under 343.305(2)(c) at the time the blood sample was taken, this court can make that determination. Whether the facts fulfill a statutory standard is ordinarily a determination of law and an appellate court need not defer to the circuit court. Wassenaar v. Panos, 111 Wis.2d 518, 525, 331 N.W.2d 357 (1983).

The word "unconscious" is used to describe a person who is insensible, incapable of responding to sensory stimuli, or in a state lacking conscious awareness. The phrase "otherwise not capable of withdrawing consent" is not defined in the statutes, and this court has not had occasion to interpret it. The phrase must be read together with the word "unconscious" and in the context of sec. 343.305. The phrase apparently describes a person who has conscious awareness and can respond to sensory stimuli but lacks present knowledge or perception of his or her acts or surroundings.

The phrase "not capable of withdrawing consent" must be construed narrowly and applied infrequently. If law enforcement officers or the courts construe the phrase "not capable of withdrawing consent" broadly to apply to all persons who are confused or disoriented, the legislative purpose of sec. 343.305 will be defeated. To protect the public and to protect the driver, the legislature has set forth a series of steps that law enforcement officers are to follow in testing a driver. Neither law enforcement officers nor the courts should resort to sec. 343.305(2)(c) indiscriminately lest they deny the public and the driver the protections that sec. 343.305 affords. Many people to whom the officer will administer tests may appear mentally or physically incapacitated. Indeed, the person's impaired physical or mental condition frequently gives the officer reason to believe the person is under the influence of an intoxicant. If the person is conscious, the recommended practice is for the officer...