State v. Spring
| Decision Date | 04 September 1996 |
| Docket Number | No. 95-3565,95-3565 |
| Citation | 555 N.W.2d 384,204 Wis.2d 343 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. William A. SPRING, Defendant-Appellant. d |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Ted S. Szczupakiewicz, Assistant District Attorney, Waukesha.
On behalf of the defendant-appellant, the cause was submitted on the briefs of Christopher A. Mutschler of The Law Offices of Barry S. Cohen, S.C., of Elkhart Lake.
Before BROWN, NETTESHEIM and SNYDER, JJ.
This is an implied consent revocation case. William A. Spring appeals from an order revoking his driving privileges for refusing to submit to a blood test. Although Spring verbally agreed to the test, he refused to sign a written consent form, required by the medical facility, consenting to the test. Spring argues that the implied consent law does not recognize or authorize such a form. The trial court determined that the use and content of the form did not violate the implied consent law. We uphold the court's ruling and affirm the revocation order.
The relevant facts are brief and undisputed. On August 26, 1995, Waukesha County Deputy Sheriff Glenn Schilder arrested Spring for operating a motor vehicle while under the influence of an intoxicant. Spring was transported to Memorial Hospital at Oconomowoc where Schilder informed Spring of the implied consent law. Schilder then asked Spring whether he would submit to a blood test. Spring agreed.
Schilder then presented Spring with a printed form which the hospital requires as part of the chemical test procedure. We set out the form in full in the accompanying footnote. 1 The form consists of two pages. The first page, signed by the officer requesting the test, commands the medical facility or medical personnel to perform the chemical test on the suspect. The concluding paragraph of this page recites the following:
pursuant to section 895.53(2) and (3), Wisconsin Statutes, any person withdrawing blood, any employer of the person withdrawing blood or any hospital where there is blood withdrawn by that person, at the request of a traffic officer, law enforcement officer or conservation warden ... is immune from any civil or criminal liability for the act, except for civil liability for negligence in the performance of the act.
The second page of the form is the actual consent portion of the form. It confirms in writing the suspect's consent to the test and the suspect's understanding that the test sample will be turned over to the authorities for analysis.
Spring construed the form as a waiver of liability on the part of the hospital and its medical personnel. For this reason, he refused to sign the consent portion of the form. Schilder considered this a refusal under the implied consent law, and, in due course, Spring was charged with illegally refusing to submit to a chemical test.
At the revocation hearing, Spring argued that the implied consent law does not recognize or authorize the consent form which he was requested to sign. Since he otherwise had agreed to submit to the chemical test, Spring argued that he had not illegally refused the test. The trial court disagreed. 2 The court held that the consent form merely implemented the implied consent law as written.
Section 343.305(9)(a)5.a-c, STATS., sets out the issues which are addressed at a revocation hearing under the implied consent law: (1) whether the officer had probable cause to arrest the defendant, (2) whether the officer correctly informed the defendant under the implied consent law, and (3) whether the suspect refused the test.
We concede Spring's threshold argument that the implied consent law does not expressly authorize a law enforcement officer or a medical facility to require an OWI suspect to sign a written consent before a chemical test may be administered. However, we disagree with Spring that this concession governs this appeal. Instead, we conclude that the proper inquiry is whether the content of the form misinforms or misleads the suspect as to the implied consent law or related sections. This implicates the second of the issues litigated at a revocation hearing as noted above--whether Spring was correctly informed under the implied consent law. 4 We now conduct this inquiry.
Section 343.305(2), STATS., of the implied consent law declares that an OWI suspect is deemed to have consented to a chemical test. Subsection (2) goes on to state, "Any such tests shall be administered upon the request of a law enforcement officer." (Emphasis added.) Subsection (5)(b) of the statute provides that blood tests may be performed "only by a physician, registered nurse, medical technologist, physician assistant or person acting under the direction of a physician." In addition, § 895.53(2), STATS., provides:
Any person withdrawing blood at the request of a traffic officer, law enforcement officer or conservation warden for the purpose of determining the presence or quantity of alcohol, controlled substances or both is immune from any civil or criminal liability for the act, except for civil liability for negligence in the performance of the act.
Subsection (3) of this statute extends the immunity to any employer of the medical person identified in subsec. (2).
In summary, these statutory provisions stand for the following: (1) a law enforcement officer may order medical personnel to administer a chemical test, (2) a blood test may be administered only by medical personnel, and (3) except for civil liability for negligence, the medical personnel are immunized from any other civil or criminal liability resulting from the test. The first page of the consent form used in this case accurately recites the foregoing. 5 As such, it memorializes in writing exactly what the implied consent law and § 895.53(2), STATS., envision. Therefore, Spring was not entitled to refuse the test on the basis of this information. 6
We turn now to the second page of the form. This is the consent portion which Spring was asked to sign. This page documents the suspect's consent to the test and the suspect's understanding that the test sample will be submitted for analysis. While the implied consent law does not expressly require that the suspect's consent and understanding be reduced to writing, we see nothing in such a procedure which violates the spirit or intent of the law. The purpose of the implied consent law is to facilitate the taking of tests for intoxication and not to inhibit the ability of the state to remove drunken drivers from the highway. Scales v. State, 64 Wis.2d 485, 494, 219 N.W.2d 286, 292 (1974). In light of that purpose, the law is to be liberally construed to effectuate its policies. Id. Since this page of the form simply memorializes in writing what the suspect is otherwise required to do under the implied consent law, we hold that Spring was not entitled to refuse the test on the basis of this form.
In summary, we hold that the content and use of the form, whether viewed in its separate parts or collectively, did not misinform Spring under the implied consent law. We affirm the revocation order.
Order affirmed.
d Petition for Review denied.
1 Page One:
The undersigned, a duly authorized law enforcement officer of
Waukesha Sheriff Department, hereby certifies that
---------------------------
(Name of Department)
the subject identified as William A. Spring has been
---------------------
(Name of Person)
arrested based upon probable cause to believe the subject has
committed a violation or crime that is either related to
driving while under the influence of an intoxicant or a
controlled substance or a combination of an intoxicant and a
controlled substance or under the influence of any other drug;
or, is related to alcohol and/or controlled substances and
there is a clear indication that any blood/urine collected will
produce evidence of that crime or violation. If necessary, the
subject has been orally informed by this law enforcement
officer of his/her rights under Wisconsin's implied consent
law, pursuant to Section 343.305(4), Wisconsin Statutes.
I hereby command that a physician, registered nurse, medical
technologist, physician's assistant or person acting under the
direction of a physician at Memorial Hospital at Oconomowoc
obtain a blood/urine sample from said person in a reasonable
manner under the circumstances for the purpose of determining
the X alcohol and/or ____ drug content thereof (specify by
checking appropriate items).
without reasonable excuse, refuses or fails, upon command, to aid any
person known to be a peace officer is guilty of a Class C misdemeanor.
This section does not apply if under the circumstances the officer was not
authorized to command such assistance.
Date: 08"26"95
------------
Name: Deputy Schilder
-------------------
Deputy Schilder U198775"3
--------------------- ------------------------
(OFFICER'S SIGNATURE) (ARREST CITATION NUMBER)
This form is not to be used when the officer
presents a search warrant for the collection of
the sample.
BLOOD/URINE...
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State v. Yager
... ... The issues addressed at this hearing are: (1)whether the officer had probable cause to arrest the defendant, (2)whether the officer correctly informed the defendant under the implied consent law, and (3)whether the suspect refused the test. See §343.305(9)(a)5, Stats.; see also State v. Spring, 204 Wis.2d 343, 350, 555 N.W.2d 384, 388 (Ct. App. 1996). Because Yager does not contest that there was probable cause for his arrest, we need only address the final two issues. We will address them in reverse order ... We first will consider whether Yager refused to submit to a blood-alcohol ... ...
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In the Matter of Michael Olds
...correctly informed the defendant under the implied consent law; and (3)the suspect refused the test. See State v. Spring, 204 Wis.2d 343, 350, 555 N.W.2d 384 (Ct. App. 1996). 8. We first address Olds' challenge to his arrest, which rests on his challenge to the constitutionality of Wood Cou......
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State v. Arpke, 00-1239
... ... Village of Menomonee Falls v. Michelson, 104 Wis.2d 137, 151, 311 N.W.2d 658 (Ct. App. 1981) ... ¶4. The purpose of the implied consent law is to facilitate the taking of tests for intoxication. State v. Spring, 204 Wis. 2d 343, 352, 555 N.W.2d 384 (Ct. App. 1996). In light of that purpose, the law is to be liberally construed to effectuate its policies. Id. at 353. Any person who drives or operates a motor vehicle upon public highways in this state is deemed to have given consent to a chemical test ... ...