Motor Vehicles — implied consent — refusal hearings

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Wisconsin Supreme Court

Criminal

Motor Vehicles — implied consent — refusal hearings

A circuit court has no discretionary authority to dismiss a refusal charge when a defendant fails to request a refusal hearing within the statutory ten-day time period.

“Although Brefka considered the narrow question of whether a defendant could extend the ten-day time limit to request a refusal hearing due to excusable neglect, our decision in Brefka is instructive to our decision today. First, Brefka considered the meaning of ‘shall’ in Wis. Stat. §343.305(10)(a) and concluded that the word is ‘mandatory’ rather than ‘discretionary.’ Id., ¶34. Therefore, in Brefka, we concluded that ‘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. Id., ¶39. Second, we stated in Brefka that ‘[t]he 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. (quoting Wis. Stat. §343.305(10)(a)). The plain language of Wis. Stat. §343.305(9)(a)4. and (10)(a) along with our recent interpretation of that language in Brefka leads us to conclude that a circuit court has no discretionary authority to dismiss a refusal charge if the defendant does not request a refusal hearing within the statutory ten-day time limit.”

Modified and affirmed.

2012AP1426 State v. Bentdahl

Crooks, J.

Attorneys: For Appellant: Cross, Troy Dean, Portage; Sanders, Michael C., Madison; For Respondent: Cohen, Barry S., Elkhart Lake