State v. Schmidt, 04-0904-CR.

• Decision Date: 11 November 2004
• Docket Number: No. 04-0904-CR.,04-0904-CR.
• Citation: 2004 WI App 235,691 N.W.2d 379,277 Wis.2d 561
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. James A. SCHMIDT, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

277 Wis.2d 561

2004 WI App 235

691 N.W.2d 379

STATE of Wisconsin, Plaintiff-Respondent, v. James A. SCHMIDT, Defendant-Appellant.

No. 04-0904-CR.

Court of Appeals of Wisconsin.

Submitted on briefs September 7, 2004.

Decided November 11, 2004.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Daniel S. Diehn of Daniel S. Diehn, S.C., Black River Falls.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Shannon Wittenberger, asst. attorney general, and Peggy A. Lautenschlager, attorney general. Before Dykman, Vergeront and Higginbotham, JJ.

¶ 1. VERGERONT, J.

James Schmidt appeals the judgment of conviction for operating a motor vehicle while intoxicated (OWI), fifth offense, in violation of WIS. STAT. §§ 346.63(1)(a) and 346.65(g).¹ He challenges the circuit court's order denying his motion to suppress the results of a blood test for alcohol, contending he was entitled to suppression because he was not given a breathalyzer test after the blood test as required by WIS. STAT. § 343.305(5)(a).

¶ 2. We agree with Schmidt that an accused's request for an additional chemical test under WIS. STAT. § 343.305(5)(a) is not invalid solely because that request was made before and not after submitting to the test the law enforcement officer asked the accused to take. However, we nonetheless conclude that the circuit court properly denied Schmidt's motion because, based on the facts as found by the circuit court, Schmidt did not request an additional test.² Accordingly, we affirm.

BACKGROUND

¶ 3. On April 10, 2003, Schmidt was involved in a one-vehicle accident and walked from the scene to his parents' house. Jackson County Deputy Sheriff Michael Tauscher arrested Schmidt there for operating a motor vehicle while intoxicated, after observing that Schmidt had slurred speech and smelled of intoxicants. Deputy Tauscher told Schmidt they were going to the hospital to have a blood draw performed. Schmidt said he wanted a breathalyzer test rather than a blood test. Deputy Tauscher replied that the first test he was offering was a blood test and Schmidt would have to take that first; if Schmidt took the blood test, he could then take a breathalyzer test. Schmidt stated several times thereafter that he would rather take the breathalyzer test than the blood test. He explained that he did not want a blood test because when he had one before, the results were much higher than the results of the other test. After this discussion, Deputy Tauscher read Schmidt an "Informing the Accused" form, which informed Schmidt of the penalties for refusing to take the test the officer requested. The form also informed Schmidt that he could take an alternative test provided by the law enforcement agency free of charge if he took the requested test.

¶ 4. After Deputy Tauscher read this form, Schmidt cooperated with having his blood drawn. Deputy Tauscher then transported Schmidt to the jail. No breathalyzer test was administered. Deputy Tauscher testified that, after Schmidt's blood was drawn, Schmidt did not ask to have a breathalyzer test. Schmidt's testimony was in conflict with the officer's on this point. Schmidt testified that, after the blood draw, he told Deputy Tauscher he still wanted a breathalyzer test and it was his understanding that he was going to be given one.

¶ 5. The trial court found that Schmidt stated that he would rather have a breathalyzer test than a blood test several times, but that after the blood test was administered, Schmidt did not request another test. The court explained that it found Deputy Tauscher's testimony on this disputed point more credible than Schmidt's. The court construed WIS. STAT. § 343.305(5)(a) to require that a person must first submit to the test requested by the officer before making a request for an additional test, and, the court stated, the Informing the Accused form also contemplates this. Because the court found Schmidt did not make a request for the breathalyzer test after taking the blood test, it denied Schmidt's motion to suppress the results of the blood test.

DISCUSSION

¶ 6. On appeal, Schmidt contends that WIS. STAT. § 343.305(5)(a) requires suppression of the blood test results because he asked for a breathalyzer test as an additional test and Deputy Tauscher failed to administer one after he took the blood test. Schmidt disputes the circuit court's construction of the statute to require that the request for an additional test be made after the first test has been taken. Instead, Schmidt asserts, when a person asks for a different test before taking the test requested by the officer, after the person takes the test requested by the officer, the officer must inquire whether the person still wants another test.

¶ 7. The State responds that the circuit court correctly construed the statute. In the alternative, the State contends, even if the statute does not require that the additional test be requested after the first test has been taken, the record shows that Schmidt requested the breathalyzer test instead of the blood test, not in addition to it, and this is not a valid request under WIS. STAT. § 343.305(5)(a).

¶ 8. WISCONSIN STAT. § 343.305(2) provides that a person operating a motor vehicle on the public highways 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 of alcohol or controlled substances, when requested by a law enforcement officer and consistent with certain statutory prerequisites.³ The law enforcement agency must be prepared to administer at least two of the three approved tests and may designate which of the tests shall be administered first. Section 343.305(2). See also State v. Vincent, 171 Wis. 2d 124, 128, 490 N.W.2d 761 (Ct. App. 1992)

. The test designated by the law enforcement agency as the first to be administered is sometimes referred to as the "primary test." State v. Stary, 187 Wis. 2d 266, 269, 522 N.W.2d 32 (Ct. App. 1994).

¶ 9. WISCONSIN STAT. § 343.305(5)(a) addresses the additional test the agency must be prepared to administer:

ADMINISTERING THE TEST; ADDITIONAL TESTS. (a) 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.

¶ 10. At the time the officer asks an accused to submit to a chemical test, the officer must read to the accused a form prescribed by statute. WIS. STAT. § 343.305(4). This form is generally referred to as the "Informing the Accused" form. The form must explain, among other things, that the officer wants to take samples of the accused's breath, blood, or urine to determine the concentration of alcohol or drugs in the accused's system. The form must also state: "If you take all the requested tests, you may choose to take further tests. You may take the alternative test that this law enforcement agency provides free of charge. You also may have a test conducted by a qualified person of your choice at your expense." Section 343.305(4). The Informing the Accused form Deputy Tauscher read to Schmidt contained this language.

¶ 11. Although WIS. STAT. § 343.305(4) and (5) use the term "alternative test," it is clear from these provisions that the accused does not have a right to choose a test instead of the one the officer asks him or her to take; rather, the "alternative test" is in addition to that test. It is for this reason that the case law sometimes refers to the "alternative test" as the "second" or "additional" test. See, e.g., State v. Piddington, 2001 WI 24, ¶ 51, 241 Wis. 2d 754, 623 N.W.2d 528

("second, alternative test"); State v. Renard, 123 Wis. 2d 458, 460, 367 N.W.2d 237 (Ct. App. 1985) ("additional test"). We will use the term "additional test" in this opinion.

¶ 12. The purpose of the additional test is to afford the accused the opportunity to verify or challenge the results of the first or primary test. See State v. McCrossen, 129 Wis. 2d 277, 288, 297, 385 N.W.2d 161 (1986)

. If the accused makes a valid request for an additional test, the officer must exercise reasonable diligence in providing it. Renard, 123 Wis. 2d at 460-61.

¶ 13. Whether Schmidt made a request for an additional test as required by WIS. STAT. § 343.305(5)(a) requires us to construe and apply that provision to the facts of this case. We accept the findings of fact made by the circuit court unless they are clearly erroneous, WIS. STAT. § 805.17(2); and we accept the credibility determinations made by the circuit court sitting as the trier of fact. Rivera v. Eisenberg, 95 Wis. 2d 384, 388, 290 N.W.2d 539 (1980). However, construction of the statute and its application to the facts as found by the circuit court present a question of law, which we review de novo. State v. Stary, 187 Wis. 2d 266, 269, 522 N.W.2d 32 (Ct. App. 1994).

¶ 14. The circuit court here made two critical findings of fact: (1) when Deputy Tauscher requested that Schmidt provide a blood sample for a test, Schmidt said he "would rather take a breath test"; and (2) while Schmidt said this more than once, after he took the blood test he did not request another test. We accept these findings because they are supported by the record and involve credibility determinations that are properly the role of the circuit court.

¶ 15. When we construe a statute, we begin with the language of the statute and give it the common, ordinary, and accepted meaning, except that technical or specially defined words are given their technical or special...