State v. Gautschi, No. 99-3065.

• Court: Court of Appeals of Wisconsin
• Writing for the Court: Before Vergeront, Deininger, JJ., and William Eich, Reserve.
• Citation: 2000 WI App 274,622 N.W.2d 24,240 Wis.2d 83
• Docket Number: No. 99-3065.
• Decision Date: 09 November 2000
• Parties: IN the MATTER OF the REFUSAL OF Stephen P. GAUTSCHI: STATE of Wisconsin, Plaintiff-Respondent, v. Stephen P. GAUTSCHI, Defendant-Appellant.

240 Wis.2d 83
2000 WI App 274
622 N.W.2d 24

IN the MATTER OF the REFUSAL OF Stephen P. GAUTSCHI:
STATE of Wisconsin, Plaintiff-Respondent,
v.
Stephen P. GAUTSCHI, Defendant-Appellant.¹

No. 99-3065.

Court of Appeals of Wisconsin.

Submitted on briefs September 12, 2000.

Decided November 9, 2000.

240 Wis.2d 85

On behalf of the defendant-appellant, the cause was submitted on the briefs of Ralph A. Kalal of Kalal & Associates, Madison

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Kathleen M. Ptacek, assistant attorney general, and James E. Doyle, attorney general.

Before Vergeront, Deininger, JJ., and William Eich, Reserve Judge.

¶ 1. DEININGER, J.²

Stephen Gautschi appeals an order revoking his motor vehicle operating privilege based on his refusal to submit to an implied consent blood alcohol test. He argues that the notice of intent to revoke his operating privilege failed to provide the information required by WIS. STAT. § 343.305(9)(a)5, thereby depriving the trial court of personal jurisdiction to revoke his operating privilege. We conclude that although the notice contained a technical error, it did not prejudice Gautschi. Accordingly, we affirm the trial court's order.

240 Wis.2d 86

BACKGROUND

¶ 2. Gautschi was arrested for operating a motor vehicle while under the influence of an intoxicant (OMVWI). He refused to submit to a test to determine his blood alcohol content, in violation of Wisconsin's informed consent law. See WIS. STAT. § 343.305(2). The officer then provided Gautschi with a form entitled "Notice of Intent to Revoke Operating Privilege."

¶ 3. Gautschi timely filed a request for a refusal hearing and moved to dismiss the proceeding based on a deficient notice. The trial court denied his motion, and, based on stipulated facts, ordered his operating privilege revoked. Gautschi appeals the revocation order.

ANALYSIS

¶ 4. Gautschi claims that the "Notice of Intent to Revoke Operating Privilege" given to him following his refusal was defective, and thus the court lacked personal jurisdiction to revoke his operating privilege. He contends that the notice misrepresented what issues could be contested at a refusal hearing, as set forth by the legislature in WIS. STAT. § 343.305(9)(a)5. We agree with Gautschi that the notice fails to provide "substantially all" of the information required under the statute, which provides in relevant part as follows:

If a person refuses to take a test under sub. (3)(a), the law enforcement officer shall immediately take possession of the person's license and prepare a notice of intent to revoke, by court order under sub. (10), the person's operating privilege.... The notice of intent to revoke the person's operating privilege shall contain substantially all of the following information:

240 Wis.2d 87

....

4. That the person may request a hearing on the revocation within 10 days by mailing or delivering a written request to the court whose address is specified in the notice. If no request for a hearing is received within the 10-day period, the revocation period commences 30 days after the notice is issued.

5. That the issues of the hearing are limited to:

a. Whether the officer had probable cause to believe the person was driving or operating a motor vehicle while under the influence of alcohol ... and whether the person was lawfully placed under arrest for violation of s. 346.63(1) ... or a local ordinance in conformity therewith.

WIS. STAT. § 343.305(9)(a) (emphasis added).

¶ 5. The "Notice of Intent to Revoke Operating Privilege" given to Gautschi informed him in relevant part as follows:

The issues to be decided at the hearing are limited to whether I was entitled to request that you submit to the test, whether proper notice was given, whether you refused to submit and whether you have a physical disability or disease unrelated to the use of alcohol or controlled substance which was the basis for your refusal.

If you do not request a hearing within 10 days of the date of this notice shown above, your operating privilege will be revoked for a period of not less than one year or more than three years....

240 Wis.2d 88

This notice of intent to revoke your operating privilege is given you as required by s. 343.305(9).

(Emphasis added.)

¶ 6. As noted above, the notice given under WIS. STAT. § 343.305(9)(a) must contain "substantially all" of the information specified in the statute. The parties disagree whether the notice at issue complies with this requirement. According to the State, "to inform the arrestee that the issues at the hearing include whether the officer is entitled to request that a driver submit to the test, necessarily implicates the issues of whether a lawful arrest based on probable cause took place prior to the request." (Emphasis added.) We disagree that the notice adequately informs its recipient that he or she may challenge whether the officer had probable cause to believe that the arrestee was OMVWI and whether his or her arrest was lawful. Put another way, we conclude that "whether [the officer] was entitled to request that you submit to the test" is not substantially the same as "[w]hether the officer had probable cause to believe the person was driving or operating a motor vehicle while under the influence of alcohol ... and whether the person was lawfully placed under arrest for violation of s. 346.63(1)."

¶ 7. We agree with Gautschi that the notice is misleading regarding the permissible issues at a refusal hearing. An arrestee may read the language in the notice and conclude that the officer was "entitled to request" an alcohol test simply because the officer was wearing a badge and uniform. Not all people are trained in the law and would understand that the phrase "entitled to request that you submit to the test" encompasses the issues of probable cause and authority

240 Wis.2d 89

to arrest for OMVWI.³ Moreover, it is not sufficient, as the State maintains, that the other hearing issues are more clearly...