Motor Vehicles – OWI — implied consent — probable cause

Listen to this article

Wisconsin Court of Appeals

Criminal

Motor Vehicles – OWI — implied consent — probable cause

This appeal arises from an operating while intoxicated arrest and prosecution. The Village of Little Chute appeals a finding that John Bunnell’s refusal to submit to a chemical test was reasonable and a judgment of dismissal and acquittal for an operating while intoxicated citation. The Village argues the circuit court erred by finding the refusal reasonable because Bunnell improperly refused to submit to a chemical test of his blood. It also asserts the circuit court erred by preventing the Village from relying on the refusal as evidence of impairment and by holding a joint hearing on the refusal and operating while intoxicated citation.

We conclude Bunnell improperly refused to submit to a chemical test of his blood. We therefore reverse the circuit court’s judgment of dismissal and direct the court to revoke Bunnell’s operating privileges pursuant to Wis. Stat. § 343.305(9) and (10). We also conclude the court erred by preventing the Village from relying on the improper refusal as evidence of Bunnell’s intoxication. Because Bunnell has not argued this error was harmless, we reverse and remand for a new trial on the OWI citation. Finally, because the Village did not object to the joint hearing in the circuit court, we will not consider this argument. This opinion will not be published.

2012AP1266 Village of Little Chute v. Bunnell

Dist III, Outagamie County, Des Jardins, J., Hoover, P.J.

Attorneys: For Appellant: Rossmeissl, Andrew J., Appleton; For Respondent: Stuckert, Lauren, Glendale