Informed Consent Case Analysis

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The decision in this case is ineligible for publication, but it bears careful attention. Even though the court concluded that Lochemes’ argument must be addressed to the legislature, rather than the courts, there is an excellent argument to be made that, even though the implied consent law was constitutional originally, it no longer is in light of current case law.

The purposes and consequences of the implied consent law are unquestionably reasonable. The law, when passed, was based on two assumptions: (1) a suspected drunk driver who refuses to consent to a blood or breath test is probably intoxicated; and (2) by refusing to take a test, he impedes prosecution.

The implied consent law therefore imposes consequences on drivers, based on these assumptions: revocation; and the refusal is treated as a prior conviction for drunk driving if the driver is ever convicted of drunk driving later.

The legislature’s decision to treat a refusal in this manner was not merely reasonable, it was necessary for the drunk driving laws to have their intended effect.

However, the second assumption above, which was valid when the law was passed, and upheld by the courts, no longer holds true. A drunk driver cannot impede prosecution by refusing a blood test, because it will be taken against his will anyway.

Before forcible blood draws were upheld in State v. Bohling, 173 Wis.2d 529, 494 N.W.2d 399 (1993), license revocation and the treatment of refusals as prior convictions were necessary, lest drunk drivers evade the consequences of their actions by simply refusing chemical testing.

Today, however, with forcible testing, the implied consent law is arguably obsolete. Its only effect is that, if a driver is in fact not intoxicated but had refused, his license is nevertheless revoked until he can obtain a hearing, and prove he was not intoxicated, pursuant to sec. 343.305.

Before forcible testing, it was true that the statute “adequately advises an accused of the consequences under ch. 343 for consenting or refusing to take the test.” State v. Nord, 2001 WI App 48, par. 14, 241 Wis. 2d 387, 625 N.W.2d 302. However, in light of the decision in Bohling, a good argument can be made that that statement is no longer true. To adequately inform the suspect of the consequences of refusal, the informed consent form should inform the suspect that a forcible blood draw will be taken, even if he refuses, and his license will be suspended, even if he is not intoxicated.

Attorneys making such an argument should pay attention to a case currently going through the courts in Minnesota, Fedziuk v. Commissioner of Public Safety.

In Fedzuik, Judge Richard Spicer, a trial court judge, held Minnesota’s implied consent statute unconstitutional last month, although the judge stayed his order, certifying the case to Minnesota’s court of appeals for immediate review.

In Fedzuik, the driving privileges of the plaintiff, Patricia Fedziuk, were revoked on April 3, 2004, based upon a blood test that indicated that she was operating a motor vehicle on Oct. 23, 2003, with the presence of amphetamine, a Schedule II controlled substance, in her body. The revocation was to last for 90 days.

Fezuik provided evidence that she had been prescribed medicine containing the amphetamine and only a therapeutic dose was present in her blood. She requested an administrative review of the revocation, which was denied.

The plaintiff then brought a declaratory judgment action to have the state’s prehearing implied consent revocation scheme declared unconstitutional.

The state did not reinstate the plaintiff’s license while the matter was pending, but Fedzuik did receive a limited license that allowed her to go to the grocery store, to a minor child’s medical appointments and to pick up medication.

The implied consent hearing was scheduled for the 60th day after the plaintiff filed her petition for review. The revocation was administratively rescinded a few days before the hearing and her license was reinstated on June 11, 2004, 69 days after the revocation began.

Judge Spicer noted that the implied consent law has been amended dramatically since the Minnesota Supreme Court held in Heddan v. Dirkswager (1983), that the then-existing system was constitutional.

In contrast to 1983, implied consent revocations now are the functional equivalent of a criminal conviction for every purpose under the Impaired Driving Code, Spicer wrote.

“Where the statutes used to refer to ‘prior convictions’ for purposes of penalty enhancement and collateral consequences, the statutes now refer to ‘prior qualified impaired driving incidents.’ …That term is defined to include not only DWI convictions but also ‘prior impaired driving-related losses of li
cense’ (implied consent revocations),” Spicer wrote.

	Related Links Wisconsin Court System Related Article Informed consent statute not misleading

Spicer also noted that the implied consent revocation can enhance the penalty for a subsequent violation even if the earlier incident that led to the revocation was not prosecuted or resulted in an acquittal. Revocations can also result in license plate revocation and vehicle forfeiture, the judge noted.

“And while increasing consequences associated with an implied consent revocation, rather than increasing the protections due to a driver, the legislature has steadily decreased those protections,” Spicer noted.

The judge then found it necessary to go back to the 1980 statute to find a constitutional revocation process, noting that the issues raised in the case were not the result of a “giant legislative leap” but of 20 years of “baby steps” that raised the consequences of an implied consent revocation while reducing the procedural protections.

While there are surely some differences in the statutory schemes of Minnesota and Wisconsin, there are also similarities. Should Fedzuik prevail in the court of appeals, the decision would provide good persuasive authority for a similar challenge in Wisconsin.

For more discussion of Fedzuik, see Barbara L. Jones’, “Implied consent statute is ruled unconstitutional,” Minnesota Lawyer, Nov. 29, 2004.

– David Ziemer

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David Ziemer can be reached by email.