Informed consent statute not misleading

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The Wisconsin Court of Appeals held on Dec. 1 that the informed consent statute is not misleading, even though it fails to inform a drunk driving suspect that his blood will be taken against his will, even if he refuses to consent.

On May 30, 2003, police officer Jason Hennen stopped a vehicle on suspicion of drunk driving, and identified the driver as Robert J. Lochemes. Hennen asked Lochemes to perform various field sobriety tests and subsequently placed him under arrest for operating a motor vehicle while under the influence of an intoxicant.

Hennen took Lochemes to police headquarters and issued him a citation. Hennen then read the Informing the Accused form to Lochemes and asked him to submit to an evidentiary chemical test of his blood. Lochemes refused, and Hennen explained to Lochemes that the blood test would be performed anyway. Lochemes indicated that he would physically resist any attempt to perform a blood test on him.

Hennen then requested assistance and two other officers as well as medical personnel arrived for the blood draw. At that time, Lochemes indicated that he would cooperate.

At the refusal hearing, Waukesha County Circuit Court Judge Paul F. Reilly ruled that Lochemes had improperly refused to submit to an evidentiary chemical test of his blood, and issued an order for revocation. Lochemes appealed, but the court of appeals affirmed in a one-judge unpublishable opinion by Judge Harry G. Snyder.

The court rejected Lochemes’ argument that his revocation should be reversed because he was misled into thinking that a refusal meant that he would not be tested. Lochemes did not dispute Hennen’s authority to administer the forcible blood draw, nor did he contend that Hennen failed to recite the required warnings contained in the Informing the Accused form.

Instead, he argued that the warnings are inadequate because they fail to inform suspects that, “in addition to the penalties he would be subjected to when he refused, he would be tested regardless of whether he cooperated.”

Rejecting the argument, the court held, “Lochemes’s argument must ultimately rest on the adequacy of the language mandated by Wis. Stat. Sec. 343.305(4) and contained in the Informing the Accused form. We have held that the legislature has ‘adequately addressed any risk of confusion by imposing a statutory duty on the police to provide accused drivers with specific information.’ Quelle, 198 Wis. 2d at 281. The statute ‘adequately advises an accused of the consequences under [Wis. Stat.] 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. Requests for a change to statutory language must be addressed to the legislature, not the court of appeals. See Pollack v. Calimag, 157 Wis. 2d 222, 235, 458 N.W.2d 591 (Ct. App. 1990) (where statutory language is unambiguous, we are bound by it and changes are for the legislature, not the court of appeals).”

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The court also rejected Lochemes’ argument that, because the State obtained the test it sought, therefore, he should not be found guil
ty of refusal. The court concluded, “This ‘no harm, no foul’ argument is contrary to the law. The implied consent law clearly states, ‘If a person refuses to take a test … the law enforcement officer shall immediately take possession of the person’s license and prepare a notice of intent to revoke … the person’s operating privilege.’ Wis. Stat. Sec. 343.305(9)(a). The law is designed to induce the accused to submit to a chemical test. State v. Brooks, 113 Wis. 2d 347, 348, 335 N.W.2d 354 (1983). If the legislature had intended to withdraw the consequences of a person’s unlawful refusal to submit to a chemical test where the law enforcement agency performed a forcible blood draw, it could have done so.”

Accordingly, the court affirmed, again observing that Lochemes’s arguments must be addressed to the legislature, “because they require revisions to current statutory language which has long been upheld and applied by the courts.”

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David Ziemer can be reached by email.