2009AP3069-CR State v. Batt

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Motor Vehicles
OWI; alternate tests

After arresting a suspect for driving while intoxicated, officers are not required to provide him both an alternative test at their expense, and another alternative test at the suspect’s expense.

“We interpret Stary’s ‘three obligations’ to mean, in context, that when law enforcement invokes Wis. Stat. § 343.305 to obtain a primary test, 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 his or her own expense, it must provide a reasonable opportunity for a test of the suspect’s choice at the suspect’s expense. In other words, in any given case, law enforcement may only need to pay for the primary test and provide an alternate test at agency expense.

However, because the choice of who pays for and arranges the alternate test is the defendant’s, law enforcement must be prepared to offer either the second test at agency expense or a reasonable opportunity for a test at the suspect’s expense, in addition to paying for the first test-hence the term ‘three obligations’ that was used by the Stary court. See Stary, 187 Wis. 2d at 270.”

“Our interpretation of Stary is strengthened by other case law discussing the same Wis. Stat. § 343.305(5)(a) provision. In City of Madison v. Bardwell, 83 Wis. 2d 891, 896, 266 N.W.2d 618 (1978), our supreme court observed that ‘[b]y allowing the agency to designate the first test, but to be prepared to administer an additional test, the legislature has insured that even an indigent driver who complies with the law can have the benefit of a second test regarding the degree of his intoxication.’ As we see it, if we were to adopt Batt’s interpretation of § 343.305(5)(a), people who could afford to would have the advantage of taking three tests, while the indigent and those less well-off would be hard pressed to do the same. This cannot be what the legislature intended.”

Affirmed.

Recommended for publication in the official reports.

2009AP3069-CR State v. Batt

Dist. II, Sheboygan County, Stengel, J., Brown, J.

Attorneys: For Appellant: Lanning, Chad A., West Bend; For Respondent: DeCecco, Joseph R., Sheboygan; Murphy, Anne Christenson, Madison

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