By: WISCONSIN LAW JOURNAL STAFF//May 22, 2014//
Wisconsin Court of Appeals
Criminal
Motor Vehicles — implied consent
Wis. Stats. Sec. 343.305(3)(ar)2, which provides that when a driver “is the operator of a vehicle that is involved in an accident that causes the death of or great bodily harm to any person and the law enforcement officer has reason to believe that [the operator of the vehicle] violated any state or local traffic law,” he must consent to a blood draw or have his license revoked, is constitutional.
“We need not resolve in this appeal potential implications that may arise from this withdrawal-of-consent concept in other contexts. What is important for current purposes is that, at least in cases of the type we now address, 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. Framed in the terms of ‘implied consent,’ choosing the ‘yes’ option affirms the driver’s implied consent and constitutes actual consent for the blood draw. Choosing the ‘no’ option acts to withdraw the driver’s implied consent and establishes that the driver does not give actual consent. Withdrawing consent by choosing the ‘no’ option is an unlawful action, in that it is penalized by ‘refusal violation’ sanctions, even though it is a choice the driver can make.”
Affirmed.
Recommended for publication in the official reports.
Dist. IV, Sauk County, Taggart, J., Blanchard, J.
Attorneys: For Appellant: Hyland, John D., Madison; Berghahn, Marcus J., Madison; For Respondent: Balistreri, Thomas J., Madison; Newton, John, Baraboo