State v. Ozimek (In re Ozimek), 2021AP452

CourtCourt of Appeals of Wisconsin
Writing for the CourtHRUZ, J.
PartiesIn the matter of the refusal of Roman C. Ozimek: v. Roman C. Ozimek, Defendant-Appellant. State of Wisconsin, Plaintiff-Respondent,
Docket Number2021AP452
Decision Date22 November 2022

In the matter of the refusal of Roman C. Ozimek:

State of Wisconsin, Plaintiff-Respondent,

Roman C. Ozimek, Defendant-Appellant.

No. 2021AP452

Court of Appeals of Wisconsin, District III

November 22, 2022

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.

APPEAL from an order of the circuit court for Brown County: Cir. Ct. No. 2017TR768 KENDALL M. KELLEY, Judge.

HRUZ, J.[1]

¶1 Roman Ozimek appeals an order revoking his privilege to operate a motor vehicle for one year based upon his refusal to submit to an


evidentiary blood draw. Ozimek argues that the circuit court erroneously ignored certain evidence when determining whether the arresting law enforcement officer complied with Wis.Stat. § 343.305(4). In particular, he contends the court should have considered evidence that the officer misinformed Ozimek of his "constitutional right" to obtain his own chemical testing without having to first consent to the officer's request for chemical testing. Ozimek argues that it does not matter that this alleged misinformation was provided after the officer had correctly read the information required in § 343.305(4), and Ozimek had refused the requested test.

¶2 We reject Ozimek's arguments, in large part, because he fails to respond to-and therefore concedes-the State's arguments. Even if Ozimek had filed a reply brief, we conclude that Ozimek has not established that law enforcement failed to comply with Wis.Stat. § 343.305(4). In addition, to the extent Ozimek is raising a constitutional claim, we conclude that he is not entitled to his request for "dismissal of the refusal charge." Accordingly, we affirm.


¶3 For purposes of this appeal, the following facts are undisputed. In the early morning hours of January 8, 2017, Officer Tyler Dawson of the De Pere Police Department observed a vehicle traveling in the wrong direction on a one-way street. Dawson activated his car's emergency lights, conducted a traffic stop, and identified Ozimek as the driver of the vehicle. Ozimek admitted that he was coming from a bar, and Dawson observed that Ozimek had slurred speech and glossy, bloodshot eyes and that a strong "odor of intoxicants" was emanating from Ozimek's vehicle.


¶4 After Officer Dawson stopped Ozimek, Officer Nicholas Walvort of the Green Bay Police Department responded to the traffic stop to provide assistance. Walvort asked Ozimek if he would be willing to perform standardized field sobriety tests. Although Ozimek initially agreed to Walvort's request, Ozimek later said he did not want to perform the tests. Ozimek was subsequently arrested for operating a motor vehicle while intoxicated (OWI) and transported to a hospital for a blood draw.

¶5 At the hospital, Officer Walvort read an Informing the Accused form verbatim to Ozimek. That form contained the information and warnings set forth in Wis.Stat. § 343.305(4). Walvort then asked if Ozimek would consent to a blood draw for chemical testing, to which Ozimek responded, "[N]o." Almost immediately after saying no, Ozimek asked whether there would be further testing, and Walvort responded that Ozimek "would have to consent to the initial test to be allowed those other tests." Ozimek then asked "what he should do," and Walvort responded that he could not provide any legal advice. Ozimek did not change his mind and refused the blood draw. Walvort subsequently gave Ozimek a form providing notice of intent to revoke Ozimek's operating privilege. See § 343.305(9)(a). Walvort also obtained a warrant to procure the blood draw, which apparently showed that Ozimek's blood alcohol concentration (BAC) was over the legal limit.

¶6 Ozimek filed a timely request for a refusal hearing on the revocation. Thereafter, the circuit court held a hearing, at which both Officer Dawson and Officer Walvort testified. During the cross-examination of Walvort, the State objected to testimony that Ozimek was told he could not obtain his own testing without first consenting to the requested chemical tests. The State argued that this statement would be irrelevant because it occurred after Ozimek had refused to


consent to the blood draw. The court held the objection in abeyance to allow the parties to brief the issue.

¶7 Following briefing, the circuit court sustained the State's objection. Relying on State v. Rydeski, 214 Wis.2d 101, 571 N.W.2d 417 (Ct. App. 1997), the court recognized that

once a person has been properly informed of the implied consent statute, that person must promptly submit or refuse to submit to the requested test, and … upon a refusal, the officer may "immediately" gain possession of the accused's license and fill out the Notice of Intent to Revoke form.

See id. at 109. The court further noted Rydeski's holding that a person's refusal is "conclusive" and "not dependent upon such factors as whether the accused recants within a 'reasonable time.'" See id. Ultimately, the court concluded that because Officer Walvort accurately read the Informing the Accused form and Ozimek refused to submit to a blood draw, any subsequent discussion between Walvort and Ozimek was irrelevant.

¶8 The circuit court later issued a written order finding that Ozimek unreasonably refused to submit to chemical testing. The court subsequently revoked Ozimek's privilege to operate a motor vehicle for one year. See Wis. Stat. § 343.305(10)(b)2.

¶9 Ozimek now appeals. Additional facts will be provided as necessary below.


¶10 Under Wisconsin's implied consent law, any person who operates a motor vehicle upon the public highways in Wisconsin is deemed to have given


consent to one or more tests of his or her breath, blood or urine, for the purpose of determining the presence or quantity of alcohol or controlled substances, when lawfully requested by a law enforcement officer. Wis.Stat. § 343.305(2). Upon the arrest of a person for OWI under Wis.Stat. § 346.63(1), an officer may ask the driver to provide one or more samples of breath, blood or urine for chemical testing. Sec. 343.305(3)(a). At the time an officer requests a sample, the officer must read the information and warnings set forth in § 343.305(4), which are generally incorporated into a form entitled "Informing the Accused." See State v. Schmidt, 2004 WI.App. 235, ¶10, 277 Wis.2d 561, 691 N.W.2d 379.

¶11 If the driver refuses to take the test, the officer "shall immediately prepare a notice of intent to revoke … the person's operating privilege." Wis.Stat. § 343.305(9)(a). The driver may then ask a court to review the revocation at a refusal hearing. See § 343.305(9)(a)4. The issues at a refusal hearing are limited to: (1) whether the officer had probable cause to believe the person was operating a motor vehicle under the influence of alcohol; (2) whether the person was lawfully arrested for violation of an OWI-related statute; (3) whether the officer complied with § 343.305(4) by providing the necessary information; and (4) whether the person refused to test for any reason other than because of a physical inability to test due to physical disability or disease that is unrelated to intoxication. Sec. 343.305(9)(a)5.; see also State v. Anagnos, 2012 WI 64, ¶27, 341 Wis.2d 576, 815 N.W.2d 675. If a court resolves one or more of these issues in favor of the driver, "the court shall order that no action be taken on the operating privilege on account of the person's refusal to take the test in question." Sec. 343.305(9)(d).

¶12 In this appeal, Ozimek frames his arguments around the third issue-i.e., whether Officer Walvort complied with Wis.Stat. § 343.305(4). See § 343.305(9)(a)5.b.


In doing so, Ozimek appears to advance two intertwined but seemingly separate arguments. He first argues that it would have been relevant to the circuit court's inquiry under § 343.305(9)(a)5.b. to determine whether he received "misinformation" about his right to collect his own chemical testing after he had refused the chemical testing requested by Walvort. Relatedly, Ozimek also contends that this misinformation impacted his "fundamental constitutional right" to "gather evidence" because he had a right to obtain his own chemical testing regardless of whether he submitted to Walvort's request for a blood draw.

¶13 In response, the State largely ignores the issue of whether the alleged misinformation was relevant per se. Instead, the State appears to argue that even if the alleged misinformation was relevant, Ozimek still could not establish that Officer Walvort failed to comply with Wis.Stat. § 343.305(4). The State also contends that Ozimek did not have a constitutional right to collect his own chemical testing. Significantly, Ozimek did not file a reply brief responding to these arguments, nor did he anticipatorily address them in his brief-in-chief.

¶14 Similar to the State's approach, we will assume, without deciding, that the alleged misinformation was relevant to the circuit court's inquiry under Wis.Stat. § 343.305(9)(a)5.b.[2] We therefore must determine whether, based


upon the undisputed facts, Officer Walvort complied with § 343.305(4). The interpretation of § 343.305 and its application to undisputed facts are questions of law that we review de novo. See Washburn County v. Smith, 2008 WI 23, ¶55, 308 Wis.2d 65, 746 N.W.2d 243.

¶15 Where, as here, a law enforcement officer provided all of the statutorily required information but then allegedly provided more information than that provided in Wis.Stat. § 343.305(4), courts employ a three-part test to determine whether the officer complied with §...

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