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OWI – Sufficiency of Evidence

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Scott W. Heimbruch

Case No.: 2019AP1857

Officials: Fitzpatrick, P.J., Kloppenburg, and Nashold JJ.

Focus: OWI – Sufficiency of Evidence

Scott W. Heimbruch was issued a notice of intent to revoke operating privilege based on Heimbruch’s refusal to submit to a chemical test of his blood after he was arrested for operating while intoxicated. He requested a refusal hearing, and at the hearing Heimbruch moved to dismiss the notice of intent to revoke operating privilege. See WIS. STAT. § 343.305(9) (2017- 18) (setting forth the procedures for requesting and holding a “refusal hearing” on a notice of intent to revoke a person’s operating privilege). The circuit court granted the motion because the script that the legislature requires the requesting officer to read to the accused (the “Informing the Accused” form), which was read verbatim to Heimbruch, inaccurately states the law in one respect. Specifically, the form contains information that inaccurately states the consequences of refusing a test for a driver who is in a motor vehicle accident but who is not suspected of intoxication. See State v. Blackman, 2017 WI 77, ¶¶5, 38, 377 Wis. 2d 339, 898 N.W.2d 774 (the Informing the Accused form inaccurately states that if a driver who is “not suspected of a drunk-driving offense” refuses to submit to a chemical test the driver’s license will be revoked). The State appeals, arguing that the circuit court erred because Heimbruch was required and failed to present evidence that the inaccurate information caused him to refuse to submit to the test.

We conclude that Heimbruch was “adequately informed of his rights under the law,” as required by Washburn Cnty. v. Smith, 2008 WI 23, ¶51, 308 Wis. 2d 65, 746 N.W.2d 243, where, under suspicion of operating while intoxicated, he was read a form that accurately states the consequences of refusal for drivers suspected of intoxication, even though the form is inaccurate with respect to drivers who are in a motor vehicle accident but who are not suspected of intoxication. The officer accurately read the form required by statute and the inaccurate information in the form does not apply to Heimbruch. Accordingly, the circuit court erroneously granted Heimbruch’s motion to dismiss, and, therefore, we reverse and remand for further proceedings.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.

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