State v. Renard
| Decision Date | 12 March 1985 |
| Citation | 123 Wis.2d 458,367 N.W.2d 237 |
| Parties | STATE of Wisconsin, Plaintiff-Appellant, v. Steven J. RENARD, Defendant-Respondent. * 84-1818-CR. |
| Court | Wisconsin Court of Appeals |
Royce A. Finne, Asst. Dist. Atty. for Brown County, Green Bay, Bronson C. La Follette, Atty. Gen., and Stephen W. Kleinmaier, Asst. Atty. Gen., for plaintiff-appellant.
Parins, McKay, Mohr & Beinlich, S.C., and R. Paul Mohr, Green Bay, for defendant-respondent.
Before CANE, P.J., and DEAN and LaROCQUE, JJ.
The state appeals an order suppressing the results of a blood alcohol test. The circuit court suppressed the evidence because the police did not perform a breathalyzer test as an additional test requested by Steven J. Renard. The state challenges the court's factual finding that Renard requested an additional test. The state also argues that suppression of the blood test is an improper sanction for failure to perform an additional test. Because the circuit court's finding that Renard requested an additional test is not contrary to the great weight and clear preponderance of the evidence, and because the failure to perform the test violated sec. 343.305(5), Stats., and denied Renard access to material evidence, we affirm the suppression order.
A police officer arrested Renard at a hospital that was treating Renard for injuries he sustained in an automobile accident. The officer charged Renard with driving while intoxicated. The officer requested Renard to permit a blood sample to be drawn for a blood alcohol test. Renard requested that a breathalyzer test be performed instead. The officer persuaded Renard to consent to the blood test because the blood sample could be drawn at the hospital. A breathalyzer test apparently could not be performed at the hospital, and Renard's doctor was unsure whether Renard would be hospitalized overnight. Renard and his wife claim that he continued to request the breathalyzer test after he consented to the blood test. The officer denies this contention. After the blood sample was drawn, the officer left the hospital without inquiring again whether Renard would be hospitalized overnight. The hospital released Renard shortly after the officer left. The release occurred less than two hours after Renard's accident.
The circuit court's finding that Renard requested a breathalyzer test in addition to the blood test is not contrary to the great weight and clear preponderance of the evidence. See State v. Walstad, 119 Wis.2d 483, 514, 351 N.W.2d 469, 485 (1984). The police therefore had a duty to perform an additional test because he consented to the blood test. See sec. 343.305(5), Stats. Although the breathalyzer test apparently could not be performed at the hospital, Renard's release from the hospital soon after the blood test enabled the officer to take him to the police station for the additional test. Because three hours did not lapse between the time of Renard's accident and his release from the hospital, the police could have timely performed a second test. See sec. 885.235(1), Stats. While we do not hold that the officer had a duty to remain indefinitely at the hospital until Renard's release, the officer did have a duty before leaving to make a final inquiry concerning the expected time of Renard's release. This duty existed because Renard requested an additional test, thereby requiring a diligent effort by the officer to comply with the demand.
Suppression of the blood test is an appropriate sanction for failure to comply with sec. 343.305(5). The duty to perform the requested...
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State v. Kerr
... ... para. b.), has failed to attend an indigency hearing (subd. para. c), or has failed without good cause to complete certain drug or alcohol programs (subd. para. d). 11 Case law also supports suppression as a sanction when statutes are violated. See, e.g. , State v. Renard , 123 Wis. 2d 458, 461, 367 N.W.2d 237 (Ct. App. 1985) ("Suppression of the blood test is an appropriate sanction for failure to comply with [Wis. Stat. ] 343.305(5)"); see also State v. McCrossen , 129 Wis. 2d 277, 286-97, 385 N.W.2d 161 (1986) (discussing sanctions including suppression ... ...
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... ... Stat. § 343.305(4) concerning the implied consent warnings, then, based upon the contention that Piddington requested, but did not receive, an alternative test for blood alcohol concentration. Piddington relies upon State v. Renard, 123 Wis. 2d 458, 367 N.W.2d 237 (Ct. App. 1985) and State v. McCrossen, 129 Wis. 2d 277, 385 N.W.2d 161 (1986) ... In both cases, the circuit court found that the accused driver had repeatedly requested an additional chemical test that was not given. Renard, 123 Wis. 2d at 460 ; McCrossen, ... ...
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State v. McCrossen
... ... Section 343.305(5), Stats., 3 provides that when a person is compelled[129 Wis.2d 287] to submit to a test to determine alcohol concentration, the person is entitled to have an alternative test performed by the police. In State v. Renard, 123 Wis.2d 458, 461, 367 N.W.2d 237 (Ct.App.1985), the court of appeals concluded that failure to provide an alternative test did not violate due process, but rather a statutory right. The court of appeals held that the appropriate sanction for violating this statutory right is suppression of the ... ...