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07/01/83 STATE WISCONSIN v. ALBERT E. BROOKS

July 1, 1983

STATE OF WISCONSIN, PLAINTIFF-APPELLANT,
v.
ALBERT E. BROOKS, DEFENDANT-RESPONDENT-PETITIONER



Review of a decision of the Court of Appeals. Reversing Heffernan, J. Steinmetz, J. (minority OPINION(S)ing). Justice Roland B. Day joins in this Dissenting opinion.

The opinion of the court was delivered by: Heffernan

This is a review of an unpublished decision of the court of appeals dated November 22, 1982, which held that the circuit court for Milwaukee county, THOMAS P. DOHERTY, Judge, abused its discretion when it dismissed a proceeding charging Albert E. Brooks with unlawfully refusing to submit to a chemical-intoxication test required by the provisions of sec. 343.305, Stats., the implied consent law. We reverse the decision of the court of appeals because the circuit court appropriately exercised its discretion to dismiss when it based the dismissal upon the fact that Brooks had pleaded guilty to the underlying charge of operating a motor vehicle while under the influence of an intoxicant and, hence, the reason for the proceedings to impose sanctions for the refusal to take the intoxication test had been accomplished.

We hold that the implied consent law is designed to induce persons to submit to an alcohol test to expedite securing evidence to determine whether or not a suspected person is intoxicated to a degree warranting a charge of operating a motor vehicle while under the influence of an intoxicant (OWI), contrary to sec. 346.63(1), Stats. If the person who is charged with OWI, on the basis of other nonchemical-test evidence, subsequently pleads guilty, there no longer remains a need for penalties for failure to submit to a test which has become unnecessary in the particular case.

The record shows that Brooks was arrested on January 20, 1982, for operating a motor vehicle while under the influence of an intoxicant. *fn1

No alcohol test was taken, and the state alleges that Brooks, without lawful reason, refused to submit to the test. He was, however, given a citation for violation of sec. 346.63(1), Stats. 1979-1980. *fn2 He was also read his rights under sec. 343.305(3) (a) of the implied consent law, which, among other things, requires a recital to the person that a driver has impliedly consented to submit to a chemical test on demand as a condition of operating on the highways and that failure to submit to the test, subject to certain exceptions, could result in the revocation of operating privileges for not less than six months nor more than a year.

Brooks nevertheless refused to submit to the intoxication test. Accordingly, as required by sec. 343.305(3), Stats., the arresting officer gave him written notice that it was the intent of the state to seek a revocation of Brooks' operating privilege for failure to comply with the implied consent law.

Prior to the return date on the citation for the alleged violation of the implied consent law, Brooks requested a hearing, as he is permitted to do by sec. 343.305(3) (b) 4, Stats. At the hearing, the circuit court was informed that Brooks had already pleaded guilty to the underlying OWI charge in the municipal court for the city of Milwaukee. Upon being so informed, Circuit Judge Thomas P. Doherty stated:

"f there has been a plea to the basic charge of operating under the influence, I am going to dismiss the refusal on the proposition that the purpose of the refusal . . . at least as it existed at the time of this offense, was to support the prosecution of the OWI. *fn3

"There having been no frustration of the prosecution of the OWI case, I don't think it's appropriate they proceed with the refusal."

The record in the circuit court shows that the court was informed of the municipal court's action by Brooks' counsel stating, "Yes, Judge. The defendant pled guilty. He was fined $400 for that and his license." *fn4

The circuit court dismissed the refusal action.

The state appealed the dismissal order to the court of appeals. The court in a per curiam opinion stated that the refusal proceeding under sec. 343.305, Stats., was a special proceeding distinct from the prosecution of OWI brought under sec. 346.63(1).

The court of appeals expressed its rationale by stating:

"The decision as to whether to dismiss an action lies within the discretion of the trial court and this court will not reverse unless there has been an abuse of discretion. A hearing to determine the reasonableness of a refusal is a special proceeding which is separate and distinct from the prosecution for driving under the influence under sec. 346.63(1), Stats. This court concludes that a guilty plea to sec. 346.63(1) does not make the sec. 343.305 refusal proceeding moot. Accordingly, this court holds that the trial court abused its discretion when it dismissed the refusal proceeding." [Footnotes omitted.]

Based on this reasoning, the court of appeals reversed the circuit court and remanded the case to the circuit court for further proceedings on the refusal ...


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