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Refusal Case Analysis

Because this was a misdemeanor case, and was not transferred to a three-judge panel, but was decided by only one judge, it is not eligible for publication in the official reports. Nevertheless, as the only court of appeals decision directly addressing this issue, it is impossible to ignore if you represent a party facing this issue.

Oddly, however, there is a published decision of the court of appeals that addresses an issue almost identical to the one at bar, but which reaches a contrary result — State v. Kasian, 207 Wis. 2d 611, 621, 558 N.W.2d 687 (Ct. App. 1996), rev. denied, 208 Wis.2d 214, 562 N.W.2d 603.

In Kasian, the defendant prevailed at a refusal hearing before the Department of Transportation. The State did not appeal, because it could not. Under the statutory scheme, a motorist who loses before the DOT can request a court hearing, and if he loses in the court hearing, can appeal to the court of appeals. However, while the State can appeal if it loses in the circuit court, it cannot appeal to the circuit court, if it loses the initial round in front of the DOT. Kasian, 207 Wis.2d at 617-618.

Thus, in Kasian, the court of appeals held issue preclusion inapplicable, with one of the reasons being that the State has no opportunity to appeal if it loses before the DOT.

Thus, the three decisions in State v. Wille, 185 Wis.2d 673, 518 N.W.2d 325 (Ct.App.1994), Kasian, and the case at bar create the following anomaly: the State can never use success at a refusal hearing to preclude a defendant from challenging the lawfulness of his arrest; the defendant cannot use the doctrine of issue preclusion if he prevailed in a refusal hearing before the DOT; but if the State is successful before the DOT, and the motorist prevails on a challenge in circuit court, then the doctrine can be used to preclude the State from arguing an arrest was lawful.

However, given the odd statutory scheme, under which only a defendant can challenge an adverse decision by the DOT, but both parties can challenge an adverse circuit court decision, the anomaly can be justified.

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In addition, the judicial review contemplated by sec. 343.305(8) is more of a traditional “adversary proceeding” than the administrative proceedings, because the State is represented by a prosecutor, something the court in Kasian also noted. Kasian, 207 Wis.2d at 618.

However, other factors noted in Kasian provide grounds for possibly reversing the decision in the case at bar. For example, the court in Kasian stated, “the public policy factor set out in [Michelle T. v. Crozier, 173 Wis.2d 681, 495 N.W.2d 327 (1990)] also argues against issue preclusion. The State should not lose potentially important and relevant evidence on the basis of the cursory administrative proceeding envisioned by sec. 343.305(8), Stats. Nor should a circuit court’s decision-making ability be so substantially curtailed on the basis of the administrative decision produced by such a summary proceeding. This is especially so where the circuit court has both the ability and the obligation to fully litigate the issue in a full adversarial proceeding.”

In the case at bar, the defendant is charged with OMVWI, fourth offense. Arguably, the State should not be denied the opportunity to prosecute such an offense, even if it did fail at the refusal hearing, for the simple reason of the difference in consequences and seriousness between the two types of hearings, even if a refusal hearing in circuit court is more formal than before the DOT.

– David Ziemer

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David Ziemer can be reached by email.

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