Chapter 343

343.305(11) (11) Rules. The department shall promulgate rules under ch. 227 necessary to administer this section. The rules shall include provisions relating to the expeditious exchange of information under this section between the department and law enforcement agencies, circuit courts, municipal courts, attorneys who represent municipalities, district attorneys, and driver licensing agencies of other jurisdictions. The rules may not affect any provisions relating to court procedure.

343.305 History History: 1987 a. 3, 27, 399; 1989 a. 7, 31, 56, 105, 359; 1991 a. 39, 251, 277; 1993 a. 16, 105, 315, 317, 491; 1995 a. 27 ss. 6412cnL, 9126 (19); 1995 a. 113, 269, 425, 426, 436, 448; 1997 a. 35, 84, 107, 191, 237, 290; 1999 a. 9, 32, 109; 2001 a. 16 ss. 3421m to 3423j, 4060gk, 4060hw, 4060hy; 2001 a. 104; 2003 a. 97, 199; 2005 a. 332, 413; 2007 a. 20 ss. 3303 to 3315, 9121 (6) (a); 2007 a. 136; 2009 a. 100, 103, 163; 2011 a. 120, 242; 2013 a. 36, 224; 2017 a. 331; 2019 a. 68.

343.305 Cross-reference Cross-reference: See also chs. DHS 62 and Trans 107 and 113, Wis. adm. code.

343.305 Annotation Administration of a blood or breathalyzer test does not violate a defendant’s privilege against self-incrimination. State v. Driver, 59 Wis. 2d 35, 207 N.W.2d 850 (1973).

343.305 Annotation The implied consent law must be liberally construed to effectuate its policies since it was intended 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, 219 N.W.2d 286 (1974).

343.305 Annotation Miranda, 384 U.S. 436 (1966), warnings are not required when an arrested driver is asked to submit to a test for intoxication under the implied consent statute. State v. Bunders, 68 Wis. 2d 129, 227 N.W.2d 727 (1975).

343.305 Annotation There is no right to counsel prior to submitting to an intoxication test. A driver is obliged to promptly take or refuse the test. State v. Neitzel, 95 Wis. 2d 191, 289 N.W.2d 828 (1980).

343.305 Annotation The state need not prove that notices were sent to state officers under sub. (3) (b) [now sub. (9) (a)]. State v. Polinski, 96 Wis. 2d 43, 291 N.W.2d 465 (1980).

343.305 Annotation When an officer initially requested a breath test, it was not an irrevocable election preventing the officer from requesting a urine test instead. The driver’s refusal to submit urine justified revocation of his driver’s license. State v. Pawlow, 98 Wis. 2d 703, 298 N.W.2d 220 (Ct. App. 1980).

343.305 Annotation The state need not affirmatively prove compliance with administrative code procedures as a foundation for admission of a breathalyzer test. City of New Berlin v. Wertz, 105 Wis. 2d 670, 314 N.W.2d 911 (Ct. App. 1981).

343.305 Annotation When a driver pled guilty to the underlying operating a motor vehicle while under the influence of an intoxicant charge, a charge of refusing a test under former s. 343.305, 1979 stats., was properly dismissed as unnecessary. State v. Brooks, 113 Wis. 2d 347, 335 N.W.2d 354 (1983).

343.305 Annotation A breathalyzer approved in the administrative code has a prima facie presumption of accuracy. State v. Dwinell, 119 Wis. 2d 305, 349 N.W.2d 739 (Ct. App. 1984).

343.305 Annotation When blood alcohol content is tested under statutory procedures, the results of the test are mandatorily admissible. The physical sample tested is not evidence intended, required, or even susceptible of being produced by state under s. 971.23. State v. Ehlen, 119 Wis. 2d 451, 351 N.W.2d 503 (1984).

343.305 Annotation A judge’s erroneous exclusion of a defendant’s explanation for a refusal to take a blood test was not harmless error. State v. Bolstad, 124 Wis. 2d 576, 370 N.W.2d 257 (1985).

343.305 Annotation At a revocation hearing under sub. (3) (b) 5. [now sub. (9) (a) 5.], the state need not establish to a reasonable certainty that the defendant was the actual driver of the vehicle stopped by the police. The probable cause standard satisfies due process. State v. Nordness, 128 Wis. 2d 15, 381 N.W.2d 300 (1986).

343.305 Annotation In sub. (2) (c) [now sub. (3) (b)], “not capable of withdrawing consent” must be construed narrowly and applied infrequently. State v. Disch, 129 Wis. 2d 225, 385 N.W.2d 140 (1986).

343.305 Annotation Under the facts of this case, the state’s refusal to provide an alternative blood alcohol test did not violate due process. State v. McCrossen, 129 Wis. 2d 277, 385 N.W.2d 161 (1986).

343.305 Annotation A mental disorder cannot justify a test refusal unless it is severe enough that the driver is deemed under sub. (3) (b) not to have refused at all. State v. Hagaman, 133 Wis. 2d 381, 395 N.W.2d 617 (Ct. App. 1986).

343.305 Annotation The implied consent law does not prevent the state from obtaining chemical test evidence by alternative constitutional means. State v. Zielke, 137 Wis. 2d 39, 403 N.W.2d 427 (1987).

343.305 Annotation Appeal of an oral revocation order under sub. (10) may not be taken under s. 808.03 (1). State v. Borowski, 164 Wis. 2d 730, 476 N.W.2d 316 (Ct. App. 1991).

343.305 Annotation Evidence of refusal was not admissible when the defendant was not fully informed of the consequences in accordance with former sub. (4). State v. Algaier, 165 Wis. 2d 515, 478 N.W.2d 292 (Ct. App. 1991).

343.305 Annotation Substantial compliance with the requirements of former sub. (4) when the defendant was actually informed of all rights and penalties relating to him was sufficient. State v. Piskula, 168 Wis. 2d 135, 483 N.W.2d 250 (Ct. App. 1992). See also Village of Oregon v. Bryant, 188 Wis. 2d 680, 524 N.W.2d 635 (1994).

343.305 Annotation The sub. (9) (a) requirement that a notice of intent to revoke be prepared and served immediately is directory and not mandatory. State v. Moline, 170 Wis. 2d 531, 489 N.W.2d 667 (Ct. App. 1992).

343.305 Annotation An accused’s request under sub. (5) (a) for the accused’s own test only requires the arresting agency to make the accused available to obtain the test, not to take an active part in obtaining the test. State v. Vincent, 171 Wis. 2d 124, 490 N.W.2d 761 (Ct. App. 1992).

343.305 Annotation When an officer knew the defendant was licensed as a commercial operator and the ensuing revocation revoked all operating privileges, the commercial operator warnings, under former sub. (4) were required. State v. Geraldson, 176 Wis. 2d 487, 500 N.W.2d 415 (Ct. App. 1993).

343.305 Annotation Overstatement of the potential penalties for refusal to submit to a chemical test was substantial compliance with former sub. (4) and not grounds for reversing a revocation for refusal. State v. Sutton, 177 Wis. 2d 709, 503 N.W.2d 326 (Ct. App. 1993).

343.305 Annotation There was no error in informing a driver of all warnings under former sub. (4), including those applying to only commercial operators and those applying to only noncommercial operators, regardless of the driver’s status. Village of Elm Grove v. Landowski, 181 Wis. 2d 137, 510 N.W.2d 752 (Ct. App. 1993).

343.305 Annotation Sub. (5) (b) requires a person drawing blood “under the direction of a physician” to have general authorization from the physician rather than a specific order in each case. State v. Penzkofer, 184 Wis. 2d 262, 516 N.W.2d 774 (Ct. App. 1994).

343.305 Annotation The state’s burden of persuasion at a suppression hearing is significantly greater than at a refusal hearing. Consequently, a defendant is not precluded from relitigating the issue of probable cause at a suppression hearing. State v. Wille, 185 Wis. 2d 673 518 N.W.2d 325 (Ct. App. 1994).

343.305 Annotation Once a suspect has refused a second alternate blood alcohol test, there is no continuing obligation to accommodate future requests for an alternate test. State v. Stary, 187 Wis. 2d 266, 522 N.W.2d 32 (Ct. App. 1994).

343.305 Annotation Refusal to submit to a field sobriety test was properly admitted as evidence to determine probable cause for arrest for intoxicated operation of a motor vehicle. State v. Babbit, 188 Wis. 2d 349, 525 N.W.2d 102 (Ct. App. 1994).

343.305 Annotation A suspect must be properly informed under the implied consent law before evidence of a refusal may be admitted at a subsequent trial, but the state is not prevented from using the evidence if a revocation hearing is not held. State v. Donner, 192 Wis. 2d 305, 531 N.W.2d 369 (Ct. App. 1995).

343.305 Annotation A driver’s “subjective confusion” over the right not to take the chemical test is not grounds for challenging the propriety of the warnings given prior to administering the test. There is a three-part standard to be applied in determining the adequacy of the warnings. County of Ozaukee v. Quelle, 198 Wis. 2d 269, 542 N.W.2d 196 (Ct. App. 1995), 95-1074. But see Washburn County v. Smith, 2008 WI 23, 308 Wis. 2d 65, 746 N.W.2d 243, 06-3163.

343.305 Annotation The implied consent law does not expressly require a suspect’s written consent to the blood alcohol test. A consent form will be liberally construed to determine whether it misinforms the suspect of the law. State v. Spring, 204 Wis. 2d 343, 555 N.W.2d 384 (Ct. App. 1996), 96-3565.

343.305 Annotation Criminal prosecution for operating a motor vehicle with a prohibited blood alcohol content subsequent to an administrative suspension of a driver’s operating privileges in the same case does not constitute multiple punishment and does not constitute double jeopardy. State v. McMaster, 206 Wis. 2d 30, 556 N.W.2d 673 (1996), 95-1159.

343.305 Annotation A finding in an administrative review under sub. (8) that there was no probable cause for an arrest does not preclude the consideration of the same issue in a criminal proceeding. State v. Kasian, 207 Wis. 2d 611, 558 N.W.2d 687 (Ct. App. 1996), 96-1603.

343.305 Annotation When an officer exceeds the duty to give warnings prior to administering the test and gives erroneous information, it is the defendant’s burden to prove by a preponderance of the evidence that the erroneous information caused the defendant’s refusal. State v. Ludwigson, 212 Wis. 2d 871, 569 N.W.2d 762 (Ct. App. 1997), 97-0417.

343.305 Annotation Willingness to submit to a blood alcohol test, subsequent to an earlier refusal, does not cure the refusal. State v. Rydeski, 214 Wis. 2d 101, 571 N.W.2d 417 (Ct. App. 1997), 97-0169.

343.305 Annotation A verbal refusal to submit to a blood alcohol test is not required to find a refusal. Conduct may serve as the basis for finding a refusal. State v. Rydeski, 214 Wis. 2d 101, 571 N.W.2d 417 (Ct. App. 1997), 97-0169.

343.305 Annotation The chief of the Department of Transportation chemical test section is given authority to determine the procedures for evaluation of breath testing instruments. The consideration of modifications made to a new model of a previously tested machine and determination that the two models were analytically the same was sufficient testing. State v. Busch, 217 Wis. 2d 429, 576 N.W.2d 904 (1998), 96-2822.

343.305 Annotation When a defendant submitted to a blood test prior to being placed under arrest, the test was not made pursuant to this section. As such, there was no right to an alternative test under sub. (5). State v. Thurk, 224 Wis. 2d 662, 592 N.W.2d 1 (Ct. App. 1999), 98-0251.

343.305 Annotation There is no constitutional duty to inform suspected drunk drivers that the right to counsel does not attach to the implied consent statute. State v. Reitter, 227 Wis. 2d 213, 595 N.W.2d 646 (1999), 98-0915.

343.305 Annotation A warrantless blood draw is permissible when: 1) the blood is taken to obtain evidence of intoxication from a person lawfully arrested; 2) there is a clear indication that evidence of intoxication will be produced; 3) the method used is reasonable and performed in a reasonable manner; and 4) the arrestee presents no reasonable objection. State v. Thorstad, 2000 WI App 199, 238 Wis. 2d 666, 618 N.W.2d 240, 99-1765. But see Birchfield v. North Dakota, 579 U.S. 438, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016).

343.305 Annotation Although a notice of intent to revoke operating privileges under sub. (9) (a) did not contain “substantially all” of the statutorily required information, it provided meaningful notice and opportunity to be heard. As such the error was technical and required a finding of prejudice for dismissal of the action. State v. Gautschi, 2000 WI App 274, 240 Wis. 2d 83, 622 N.W.2d 24, 99-3065.

343.305 Annotation The notice under sub. (4) regarding the consequences for failing to submit to a blood alcohol does not violate due process. It does not mislead accused persons regarding taking or refusing the blood alcohol test. State v. Nord, 2001 WI App 48, 241 Wis. 2d 387, 625 N.W.2d 302, 00-1529.

343.305 Annotation In giving the warnings required under sub. (4), an officer is required to utilize methods that, according to the circumstances at the time, are reasonable and will convey the warnings. Whether the accused driver comprehends the warnings is not part of the inquiry. A driver’s hearing impairment must be taken into account and accommodated as is reasonably possible under the circumstances. State v. Piddington, 2001 WI 24, 241 Wis. 2d 754, 623 N.W.2d 528, 99-1250.

343.305 Annotation Drivers have no right to refuse a chemical test and need not consent to a test. When there is a refusal, the implied consent law does not preclude police from pursuing other constitutional avenues for collecting evidence. State v. Gibson, 2001 WI App 71, 242 Wis. 2d 267, 626 N.W.2d 73, 00-2399.

343.305 Annotation That a person agreed to a breath test but not a blood test did not render police insistence on a blood test unreasonable. State v. Wodenjak, 2001 WI App 216, 247 Wis. 2d 554, 634 N.W.2d 867, 00-3419.

343.305 Annotation By consenting to the taking of a blood sample, the defendant also consented to the chemical analysis of the sample. These are not separate events for warrant requirement purposes. State v. VanLaarhoven, 2001 WI App 275, 248 Wis. 2d 881, 637 N.W.2d 411, 01-0222. But see State v. Randall, 2019 WI 80, 387 Wis. 2d 744, 930 N.W.2d 223, 17-1518.

343.305 Annotation A warrantless blood draw by a physician in a jail setting may be unreasonable if it invites an unjustified element of personal risk of pain and infection. Absent evidence of those risks, a blood draw under those circumstances was reasonable. State v. Daggett, 2002 WI App 32, 250 Wis. 2d 112, 640 N.W.2d 546, 01-1417.

343.305 Annotation The circuits court’s improper denial of a hearing requested under sub. (8) as the result of its miscalculation of time that resulted in a suspension without a hearing was not a fundamental error entitling the defendant to dismissal of the conviction against him when the court, on realizing the error, conducted a hearing and found that the defendant’s refusal was improper and a license suspension was in order. State v. Carlson, 2002 WI App 44, 250 Wis. 2d 562, 641 N.W.2d 451, 01-1088.

343.305 Annotation Sub. (9) (a) does not provide the exclusive option when faced with an arrestee who refuses to submit to a chemical test. An officer may acknowledge the refusal, complete the sub. (9) (a) intent to revoke form, and then proceed with an involuntary blood test, using reasonable force to withdraw blood from a noncompliant suspect. The officer may necessarily inform a suspect that such a procedure is a possibility upon the suspect’s refusal. State v. Marshall, 2002 WI App 73, 251 Wis. 2d 408, 642 N.W.2d 571, 01-1403.

343.305 Annotation When the arresting officer makes no specific threats beyond what arises under this section, the threat of lost driving privileges does not constitute a coercive measure that invalidates a defendant’s consent for 4th amendment purposes. An arresting officer, by reading the informing the accused form, simply states the truth: refusal to submit to a chemical test will result in driving privileges being revoked. Officers are entitled to make true statements. Village of Little Chute v. Walitalo, 2002 WI App 211, 256 Wis. 2d 1032, 650 N.W.2d 891, 01-3060. See also State v. Wintlend, 2002 WI App 314, 258 Wis. 2d 875, 655 N.W.2d 745, 02-0965.

343.305 Annotation Repeated requests for an attorney can amount to a refusal as long as the officer informs the driver that there is no right to an attorney at that point. State v. Baratka, 2002 WI App 288, 258 Wis. 2d 342, 654 N.W.2d 875, 02-0770.

343.305 Annotation If an officer explicitly assures or implicitly suggests that a custodial defendant has a right to consult counsel before deciding whether to submit to the test, the defendant relied on the offering, and the officer nonetheless marked a refusal despite the defendant’s reliance, then the refusal was reasonably made. State v. Verkler, 2003 WI App 37, 260 Wis. 2d 391, 659 N.W.2d 137, 02-1545.

343.305 Annotation This section does not require that test results must be suppressed when there is a failure to reasonably convey the implied consent warnings to an apprehended driver. Under the circumstances of this case, on remand the defendant was entitled to pursue an order prohibiting the automatic admissibility of the blood test result pursuant to s. 885.235, which if granted would require the state to establish the admissibility of the blood test, including establishing a foundation. State v. Begicevic, 2004 WI App 57, 270 Wis. 2d 675, 678 N.W.2d 293, 03-1223.

343.305 Annotation The approval of an instrument under sub. (6) (b) without promulgation of an administrative rule under ch. 227 did not constitute creation of an invalid administrative rule. County of Dane v. Winsand, 2004 WI App 86, 271 Wis. 2d 786, 679 N.W.2d 885, 03-2004.

343.305 Annotation Sub. (5) (a) does not impose a requirement that the request for an additional blood test be made after the first test is completed. State v. Schmidt, 2004 WI App 235, 277 Wis. 2d 561, 691 N.W.2d 379, 04-0904.

343.305 Annotation When police have informed a suspect of the right to an alternative test at agency expense, the suspect has ample opportunity to make a request, the suspect makes no request, and the suspect is released from custody and leaves the presence of custodial police, a subsequent request for an alternative test at agency expense is not a request within the meaning of sub. (5) (a). State v. Fahey, 2005 WI App 171, 285 Wis. 2d 679, 702 N.W.2d 400, 04-0102.

343.305 Annotation There is no right to counsel at the refusal hearing because such a hearing is civil, not criminal, in nature, and therefore there is no constitutional right to effective assistance of counsel. State v. Krause, 2006 WI App 43, 289 Wis. 2d 573, 712 N.W.2d 67, 05-0472.

343.305 Annotation Giving Miranda, 384 U.S. 436 (1966), warnings prior to reading Informing the Accused warnings under this section does not lead to a conclusion that the officer explicitly assured or implicitly suggested that a defendant has a right to consult counsel or to stand silent in the face of the implied consent warnings. Such a conclusion requires that the accused must be told he or she has the right to consult with counsel before deciding to submit to chemical testing and that the accused relied on the assurance or suggestion when responding to the request for a chemical test. State v. Kliss, 2007 WI App 13, 298 Wis. 2d 275, 728 N.W.2d 9, 06-0113.

343.305 Annotation There cannot be substantial compliance with sub. (4) when the law enforcement officer fails to give the defendant the statutorily required information about penalties. If the circuit court determines that the officer failed to inform the accused in compliance with the statute, 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. This does not apply misstatements of information beyond the required information, which are governed by Ludwigson, 212 Wis. 2d 871 (1997). Washburn County v. Smith, 2008 WI 23, 308 Wis. 2d 65, 746 N.W.2d 243, 06-3163.

343.305 Annotation When law enforcement invokes this section to obtain a primary test for intoxication, it must: 1) provide the primary test of its choice at its own expense; 2) provide an opportunity for a second test of its choice at agency expense; and 3) if the second test is refused by the suspect in favor of one at the suspect’s own expense, it must provide a reasonable opportunity for a test of the suspect’s choice at the suspect’s expense. State v. Batt, 2010 WI App 155, 330 Wis. 2d 159, 793 N.W.2d 104, 09-3069.

343.305 Annotation Sub. (9) (a) 5. a. does not limit the circuit court to considering whether, based on all the evidence gathered up until the moment of the arrest, the officer had probable cause to believe the defendant was operating while under the influence of an intoxicant. A defendant may also contest whether he or she was lawfully placed under arrest. As part of this inquiry, the circuit court may entertain an argument that the arrest was unlawful because the traffic stop that preceded it was not justified by either probable cause or reasonable suspicion. State v. Anagnos, 2012 WI 64, 341 Wis. 2d 576, 815 N.W.2d 675, 10-1812.

343.305 Annotation Under Brooks, 113 Wis. 2d 347 (1983), a circuit court has the discretionary authority to dismiss a refusal charge only if the defendant has already pleaded guilty to the underlying operating a motor vehicle while intoxicated (OWI) or OWI-related charge by the time of the defendant’s refusal hearing, which was timely requested. Extending Brooks to allow circuit courts the discretionary authority to dismiss refusal charges in cases in which a defendant has pleaded not guilty to the underlying OWI, prohibited alcohol concentration, or other related charge would contravene the purpose of this section. State v. Bentdahl, 2013 WI 106, 351 Wis. 2d 739, 840 N.W.2d 704, 12-1426.

343.305 Annotation It is incorrect to say that a driver who consents to a blood draw after receiving the advisement contained in the “Informing the Accused” form has given “implied consent.” If a driver consents under that circumstance, that consent is actual consent, not implied consent. If the driver refuses to consent, he or she thereby withdraws “implied consent” and accepts the consequences of that choice. The implied consent law is explicitly designed to allow the driver, and not the police officer, to make the choice as to whether the driver will give or decline to give actual consent to a blood draw when put to the choice between consent or automatic sanctions. State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d 867, 13-0852. But see State v. Brar, 2017 WI 73, 376 Wis. 2d 685, 898 N.W.2d 499, 15-1261.

343.305 Annotation Sub. (3) (ar) 2. is not facially unconstitutional. It does not authorize law enforcement to compel an unreasonable search, as it does not authorize searches. It authorizes law enforcement to require a driver to choose between giving actual consent to a blood draw, or withdrawing “implied consent” and suffering implied-consent-law sanctions. State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d 867, 13-0852.

343.305 Annotation The “reason to believe” standard in sub. (3) (ar) 2. requires that the law enforcement officer have a “minimal suspicion” that the defendant has committed a traffic violation. State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d 867, 13-0852.

343.305 Annotation Testimony showed that a doctor had issued a standing order authorizing an ambulance district’s emergency medical technicians (EMTs) to draw blood when requested to do so by law enforcement, and instead of personally observing each individual blood draw, the doctor had allowed the EMTs to perform blood draws on their own while making himself accessible by telephone should any problems arise. The testimony left no doubt that it was the doctor who was in charge of blood-drawing activities conducted by the EMTs. To require more evidence than what the state provided to establish that the EMT who drew the blood in this operating while intoxicated case was acting under the direction of the doctor would have been to require a specific type or degree of direction that sub. (5) (b) does not so specify. State v. Kozel, 2017 WI 3, 373 Wis. 2d 1, 889 N.W.2d 423, 15-0656.

343.305 Annotation It was constitutionally reasonable for an emergency medical technician (EMT), as opposed to a physician, to draw an operating while intoxicated suspect’s blood. The important point for constitutional purposes was that the evidence demonstrated that the EMT was thoroughly trained and experienced in properly drawing blood. Also, it was not unreasonable for the blood draw to occur in the non-medical setting of the jail when the evidence indicated that the room in which the blood was drawn “was clean and as clean as a hospital emergency room,” and the EMT used a new blood draw kit containing a sterile needle. State v. Kozel, 2017 WI 3, 373 Wis. 2d 1, 889 N.W.2d 423, 15-0656.

343.305 Annotation A blood draw from the defendant under this section while the defendant was unconscious was permissible under the 4th amendment under the exigent circumstances doctrine when a deputy had probable cause to arrest the defendant for operating a vehicle with a prohibited alcohol concentration. State v. Howes, 2017 WI 18, 373 Wis. 2d 468, 893 N.W.2d 812, 14-1870.

343.305 Annotation Upon a defendant’s lawful arrest for drunk driving, the defendant has no constitutional or statutory right to refuse to take a breathalyzer test, and the state can comment at trial on the defendant’s improper refusal to take the test. State v. Lemberger, 2017 WI 39, 374 Wis. 2d 617, 893 N.W.2d 232, 15-1452.

343.305 Annotation Sub. (3) (ar) 2. does not provide that if a driver refuses to take a test, the driver’s operating privilege will be revoked. The statute states only that if a driver refuses to take any test the driver may be arrested. Sub. (4) sets forth the “Informing the Accused” form that a law enforcement officer is required to read to a person from whom a test specimen is requested under sub. (3) (ar). The form differs from sub. (3) (ar) 2., stating that if a driver refuses to take any test under sub. (3) (ar) 2., the driver’s “operating privilege will be revoked.” The proper advice to a defendant subject to sub. (3) (ar) 2. is that the defendant’s operating privilege will be revoked if the defendant fails to request a refusal hearing. State v. Blackman, 2017 WI 77, 377 Wis. 2d 339, 898 N.W.2d 774, 15-0450.

343.305 Annotation Revocation of a driver’s operating privilege is unenforceable against a driver who has refused a test under sub. (3) (ar) 2. if the driver requests a refusal hearing. The issues at the hearing are limited to the state proving that the officer had probable cause to believe that the driver was driving or operating a motor vehicle under the influence and two other factors. The legislature did not remove the operating while under the influence-related probable cause requirement from a refusal hearing. The text of the statute clearly provides that when an officer requests a blood test pursuant to sub. (3) (ar) 2., the state cannot prevail at the refusal hearing because probable cause is a prerequisite to revocation of an operating license. State v. Blackman, 2017 WI 77, 377 Wis. 2d 339, 898 N.W.2d 774, 15-0450.

343.305 Annotation When a defendant consented to a blood draw under this section but later attempted to revoke the consent before the blood sample was tested, a subsequent test of the blood sample did not violate the constitution. State v. Randall, 2019 WI 80, 387 Wis. 2d 744, 930 N.W.2d 223, 17-1518.

343.305 Annotation Following Mitchell, 588 U.S. ___, 139 S. Ct. 2525 (2019), the four factors that the state bears the burden to show that exigent circumstances justified a warrantless blood draw are: 1) law enforcement has probable cause to believe that the driver has committed a “drunk-driving offense”; 2) the driver is, at pertinent times, unconscious or in a stupor; 3) the driver’s unconscious state or stupor requires that the driver be taken to a hospital or similar facility; and 4) the driver is taken to the hospital or similar facility before law enforcement has a “reasonable opportunity” to administer a standard evidentiary breath test. The burden is on the defendant to show that the defendant’s blood would not have been drawn if police had not been seeking blood alcohol concentration information and to show that law enforcement could not have reasonably judged that a warrant application would interfere with other pressing needs or duties. State v. Richards, 2020 WI App 48, 393 Wis. 2d 772, 948 N.W.2d 359, 17-0043. See also State v. Mitchell, 2022 WI App 31, 404 Wis. 2d 103, 978 N.W.2d 231, 19-1942.

343.305 Annotation Because the natural dissipation of alcohol over time presents a risk that evidence will be destroyed, the passage of time may help support an exigent circumstances determination in a given case. Here, there had already been a significant delay, which occurred through no fault of the police. An objectively reasonable officer would have been concerned that additional delay to obtain a warrant, beyond the five hours that had already elapsed, would have further undermined the probative value of a test, possibly even rendering it inadmissible if an expert was not able to support its probative value. State v. Dieter, 2020 WI App 49, 393 Wis. 2d 796, 948 N.W.2d 431, 18-2269.

343.305 Annotation The informing-the-accused language stating that, if the defendant refused to submit to the requested test, the refusal could be used against the defendant in court did not misrepresent the law. The Birchfield, 579 U.S. 438 (2016), and Dalton, 2018 WI 85, courts clearly acknowledge that civil penalties and evidentiary consequences may lawfully be imposed on defendants who refuse to submit to a blood test. State v. Levanduski, 2020 WI App 53, 393 Wis. 2d 674, 948 N.W.2d 411, 19-1144.

343.305 Annotation In this case, the defendant was adequately informed of his rights under the law as required by Smith, 2008 WI 23, when, under suspicion of operating while intoxicated, the defendant was read a form that accurately stated the consequences of refusal to submit to a chemical test of blood for a driver suspected of intoxication, even though the form was inaccurate with respect to a driver who was in a motor vehicle accident but who was not suspected of intoxication. The officer accurately read the form required by statute, and the inaccurate information in the form did not apply to the defendant. State v. Heimbruch, 2020 WI App 68, 394 Wis. 2d 503, 950 N.W.2d 916, 19-1857.

343.305 Annotation Under Birchfield, 579 U.S. 438 (2016), and Dalton, 2018 WI 85, Wisconsin’s operating while intoxicated graduated-penalty scheme is unconstitutional to the extent it counts prior revocations for refusing to submit to a warrantless blood draw as offenses for the purpose of increasing the criminal penalty. State v. Forrett, 2022 WI 37, 401 Wis. 2d 678, 974 N.W.2d 422, 19-1850.

343.305 Annotation When a law enforcement officer has reasonable grounds to believe that an unconscious person is guilty of driving while intoxicated, a blood sample may be taken, and the test results are admissible in evidence and may not be excluded by the trial court. 59 Atty. Gen. 183.

343.305 Annotation Discussing implied consent. 62 Atty. Gen. 174.

343.305 Annotation Discussing the method by which a law enforcement agency may provide two tests for blood alcohol content under sub. (1) [now sub. (2)]. The agency is not required to actually own or physically possess the testing devices. 63 Atty. Gen. 119.

343.305 Annotation Under former subs. (1) and (4), 1985 stats., hospital personnel must administer tests and report results at the request of officers, subject to penalty under s. 946.40. 68 Atty. Gen. 209.

343.305 Annotation Federal law requiring confidentiality of patient records has no application to the taking of a blood sample under this section. 73 Atty. Gen. 45.

343.305 Annotation A law enforcement officer may use physical restraint, subject to constitutional limitations, in order to draw a legally justified blood sample. Refusal by a health professional to comply with a law enforcement officer’s authorized request to take a blood sample from a person whom the officer has legally restrained by force constitutes refusal to aid an officer under s. 946.40. 74 Atty. Gen. 123.

343.305 Annotation Discussing refusal hearings under this section. 77 Atty. Gen. 4.

343.305 Annotation A Massachusetts implied consent law that mandates suspension of a license for refusal to take a breath-analysis test did not violate the due process clause. Mackey v. Montrym, 443 U.S. 1, 99 S. Ct. 2612, 61 L. Ed. 2d 321 (1979).

343.305 Annotation The admission into evidence of a defendant’s refusal to submit to a blood-alcohol test did not deny the right against self-incrimination. South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983).