Motor Vehicles — refusal hearings — statute of limitations

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Wisconsin Supreme Court

Criminal

Motor Vehicles — refusal hearings — statute of limitations

The ten-day limit to request a refusal hearing under sec. 343.305(9)(a)4. and (10)(a) is mandatory.

“Unlike Schoepp, here the legislature has set forth a ‘different procedure’ from the general rules of civil procedure.  Wisconsin Stat. §§ 343.305(9)(a)4. and (10)(a) impose a mandatory requirement that the refusal hearing must be requested within ten days of service of the Notice of Intent.  The penalty for a refusal followed by a failure to request a refusal hearing within ten days is also mandatory in requiring that ‘[i]f no hearing was requested, the revocation period shall begin 30 days after the date of the refusal.’  Id. at (10)(a).”

“Because the legislature has set forth a mandatory ten-day time limit with precise penalties that rely on whether the time limit is met, the legislature has provided a ‘different procedure’ that governs pursuant to Wis. Stat. § 801.01(2).  Accordingly, Wis. Stat. §§ 800.115, 801.15(2)(a), and 806.07 do not allow for the extension of the ten-day time limit due to excusable neglect.  Wis. Stat. § 801.01(2); see Schoepp, 204 Wis. 2d at 272.”

Affirmed.

2011AP2888 Village of Elm Grove v. Brefka

Bradley, J.

Attorneys: For Appellant: Mishlove, Andrew, Milwaukee; Stuckert, Lauren, Glendale; For Respondent: Hoffer, Douglas James, Elm Grove