State v. Fahey, 2004AP102-CR.

• Decision Date: 30 June 2005
• Docket Number: No. 2004AP102-CR.,2004AP102-CR.
• Citation: 2005 WI App 171,702 N.W.2d 400,285 Wis.2d 679
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Patrick J. FAHEY, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

285 Wis.2d 679

2005 WI App 171

702 N.W.2d 400

STATE of Wisconsin, Plaintiff-Respondent, v. Patrick J. FAHEY, Defendant-Appellant.¹

No. 2004AP102-CR.

Court of Appeals of Wisconsin.

Submitted on briefs November 8, 2004.

Decided June 30, 2005.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Tracey A. Wood of Van Wagner & Wood, S.C., Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jonathon G. Kaiser, assistant district attorney for Dane County.

Before Deininger, P.J., Vergeront and Lundsten, JJ.²

¶ 1. LUNDSTEN, J.

Patrick J. Fahey appeals a judgment of the circuit court finding him guilty of operating a motor vehicle while intoxicated. Fahey was arrested for driving while intoxicated and transported to a police station where police informed Fahey of his right to an alternative test at agency expense and then administered a police-requested breathalyzer test. While at the police department, Fahey did not request an alternative test. Instead, Fahey returned to the police department after he was released and then, for the first time, requested an alternative test at agency expense. Fahey argues that the police violated WIS. STAT. § 343.305(5)(a) by failing to honor his request for an alternative test and that the circuit court erred by denying his motion to suppress the result of his breathalyzer test. We affirm the circuit court. We hold that, where police have informed a suspect of his or her right to an alternative test at agency expense, the suspect has ample opportunity to make a request, the suspect makes no request, and the suspect is released from custody and leaves the presence of custodial police, a subsequent request for an alternative test at agency expense is not a request within the meaning of § 343.305(5)(a).

Background

¶ 2. No evidentiary hearing was held because the parties stipulated to the facts in a police report. Those undisputed facts are as follows.

¶ 3. In January 2003, at 12:40 a.m., Fahey was stopped by a police officer for speeding. Fahey's speech was slurred and he had a strong odor of intoxicants on his breath. Fahey admitted that he had been drinking beer, and he performed poorly on field sobriety tests. Fahey was arrested and transported to the Cottage Grove Police Department. At the police department, the officer issued Fahey a ticket for operating a motor vehicle while intoxicated. The officer read Fahey an "Informing the Accused" form, thereby informing Fahey that, if he took the test requested by the police, he could take an alternative test provided by the law enforcement agency free of charge.³ Fahey did not request such a test.

¶ 4. A breathalyzer test was administered beginning at 1:25 a.m. The test measured Fahey's blood alcohol level at .20. At some point during Fahey's time in custody, he called his wife to come and pick him up. At 1:55 a.m., Fahey was released from police custody and left the police station with his wife. Approximately fifteen minutes later, Fahey returned to the station and, for the first time, told police he wanted an alternative test. The arresting officer declined to provide a test at government expense. The officer informed Fahey that Fahey could go to the hospital and get a blood test done at his own expense. Fahey indicated that he would do that and he left.

¶ 5. Fahey subsequently moved the circuit court to suppress the results of his breathalyzer test, alleging that the arresting officer failed to abide by Wisconsin's implied consent law, WIS. STAT. § 343.305, when the officer declined Fahey's request for an alternative chemical test of Fahey's blood at agency expense. The circuit court denied the suppression motion, concluding that "a request for a free second test which is first made after the defendant has been released from custody comes too late."

Discussion

¶ 6. Wisconsin's implied consent law permits arrestees, upon submitting to the police agency's primary test, the right to request an alternative chemical test at the police agency's expense. WISCONSIN STAT. § 343.305(5)(a) states, in part:

If the person submits to a test under this section, the officer shall direct the administering of the test. A blood test is subject to par. (b). The person who submits to the test is permitted, upon his or her request, the alternative test provided by the agency under sub. (2) or, at his or her own expense, reasonable opportunity to have any qualified person of his or her own choosing administer a chemical test for the purpose specified under sub. (2) .... The agency shall comply with a request made in accordance with this paragraph.

(Emphasis added.) The requirements regarding an alternative test at agency expense are twofold: the accused must be told of the alternative test and, if the accused makes a "request" for an alternative test at agency expense, police must make a "diligent effort ... to comply with the demand." See State v. Renard, 123 Wis. 2d 458, 461, 367 N.W.2d 237 (Ct. App. 1985).

¶ 7. In this case, it is undisputed that Fahey was informed of his right to an alternative test free of charge. Fahey did not, however, request such a test when so informed. Indeed, Fahey did not request an alternative test at agency expense during the next half hour or so while police administered a breathalyzer test and before Fahey left the police station with his wife. Fahey first requested an alternative test at agency expense after he was released from custody, left the police department, and then returned about fifteen minutes later. The question here is whether, under these circumstances, Fahey made a "request" within the meaning of WIS. STAT. § 343.305(5)(a).⁴ ¶ 8. Fahey contends that the question here should be decided by determining "how diligent the police were in offering the second test and in ensuring there was an unequivocal refusal [to take that second test]." Fahey argues that, under State v. Stary, 187 Wis. 2d 266, 522 N.W.2d 32 (Ct. App. 1994), this is a question answered case by case by weighing various factors, such as whether the accused affirmatively refused the alternative test, whether the officer was still available to honor the request, and whether the request was made within three hours of the stop.⁵ Looking at the particular facts in this case, Fahey argues that he requested an alternative test at agency expense and the officer failed to exercise reasonable diligence in honoring that request. Fahey agrees that his release from custody is a relevant consideration, but asserts that his release and his act of leaving the police department do not constitute a cutoff point for purposes of making a request for an alternative test at agency expense. Fahey asserts that the "point of the Stary case was that there is no bright line rule with respect to the timing of requests for second tests" because the Stary court "explicitly held that courts should look at the totality of circumstances in an individual case to determine whether the officer exercised reasonable diligence in ensuring the arrestee received the requested second test."

¶ 9. The State frames its argument in terms of waiver. In the State's view, Fahey waived his right to an alternative test at agency expense by waiting until after his release to make that request. But, as Fahey points out, the State does not provide legal support for its waiver theory. At the same time, the State also looks to Stary for guidance. In the State's view, this case is like Stary because here, as in Stary, the request for an alternative test at agency expense was made after the accused was released from custody.

¶ 10. Because both parties place primary reliance on Stary, we pause to address that case. The defendant in Stary, while in custody at a police department, submitted to a police-requested test and repeatedly declined an officer's offer of an alternative test at the agency's expense. Id. at 268. Thirty-five minutes after his release, the defendant, by means of a phone call placed by a nurse at a medical center, requested an alternative test at agency expense. The police declined the request. Id. Although our analysis in Stary may be susceptible to differing interpretations, at least one rule from Stary is clear: When police advise a suspect of his or her right to an alternative test at agency expense and repeatedly offer such a test, when the suspect affirmatively refuses the offer, and when the suspect then leaves police custody, police have no obligation to honor a subsequent request for an alternative test at agency expense. Id. at 271-72. More to the point, we did not say in Stary that police may deny a post-release request for an alternative test at agency expense only if the defendant expressly refuses an affirmative offer of an alternative test while in custody.

¶ 11. As we did in Stary, we conclude that this case requires interpretation of WIS. STAT. § 343.305(5)(a). See Stary, 187 Wis. 2d at 269. The question here is whether a request is a "request" within the meaning of § 343.305(5)(a) under the following circumstances: when police have informed a suspect of his or her right to an alternative test at agency expense, when the suspect has ample opportunity to make a request, when the suspect makes no request, when the suspect is released from custody and leaves the presence of custodial police, and when the suspect later requests an alternative test at agency expense.

¶ 12. In Peterson v. Volkswagen of America, Inc., 2005 WI 61, 281 Wis. 2d 39, 697 N.W.2d 61, the supreme court summarized the rules of statutory construction:

"When interpreting statutes, our goal is to give effect to the language of the statute. We begin by looking to the language of the statute because we `assume that the legislature's intent is expressed in the statutory language.' Technical terms or legal terms of art appearing in the statute are given their accepted technical or legal definitions while nontechnical words

...