University of Wisconsin Law School

RESOURCE CENTER REPORT

Number 95-2

October 1995

University of Wisconsin Law School

Resource Center on Impaired Driving

INFORMING THE ACCUSED UNDER THE IMPLIED CONSENT LAW

Nina J. Sines, Director

John Ekman, Research Assistant

The impetus for this reportcame from inquiries of both theprosecution and defense in anoperating while intoxicated(OWI) case. Specifically, theissue presented is whether anofficer must read the Informingthe Accused (IA) form beforeeach chemical test or whether asingle reading is sufficient.

This report will discuss why theimplied consent law requiresonly one reading of the IAform, regardless of whethermore than one test is taken. First, it will consider the issuespresented by the case at hand. Second, it will discuss the caselaw governing the admissibilityof chemical test evidence. Third, it will explain whysuppression of test results is notthe appropriate remedy. Finally, it will recommend thatevery officer read the IA formbefore each test or, at aminimum, remind the suspectthat the IA form remains ineffect for each subsequent test.⁽¹⁾

Facts

The officer arrested thedefendant for OWI and readthe IA form. The defendantconsented to take the agency'sdesignated primary test, theintoxilyzer. The officerindicated on the IA form thatdefendant consented to take achemical test of his "breath."⁽²⁾ However, the intoxilyzermachine malfunctioned and wasnot able to complete therequisite two test sequence witha reported result.

Subsequently, the officer askedif a blood sample could be takeninstead. The defendant said"Okay," and his consent wasrecorded on videotape. Theofficer did not read another IAform and did not write the word"blood" in the blank or crossout the word "breath" aspreviously written on the form. The blood test confirmed thedriver had a prohibited alcoholconcentration at the time of hisarrest. The defense filed aMotion to Suppress the bloodtest results because the officerdid not read a second IA form. The prosecution is arguing theblood test results should beadmissible.

Discussion

This case raises the followingissues: 1) When a defendanthas consented to a chemical testwhich is incomplete due tomechanical difficulties, must anofficer read a second IA form? 2) Does the language in the IAform that "You are deemedunder Wisconsin's ImpliedConsent Law to have consentedto chemical testing of yourbreath, blood or urine"(emphasis added) allow anofficer to take any or all ofthree tests after a single readingof the Informing the Accused? 3) Does the question "Will yousubmit to an evidentiary chemical test of your (breath, blood,urine)" (emphasis added) dictatea separate reading of the IAform before each test?

Though it may be good practiceto read the Informing theAccused form for eachrequested test,⁽³⁾ the impliedconsent law allows an officer toadminister any or all of threetests based upon a singlereading of the form. Thisconclusion is supported by thefollowing cases:

State v. Zielke

In State v. Zielke,⁽⁴⁾ the supremecourt reasoned that when astatute's application is notprecise, the court must presumethe legislature intended that thestatute be interpreted to advancethe legislature's intent. Here,the court concluded the "impliedconsent law is designed tofacilitate, not impede, thegathering of chemical testevidence in order to removedrunk drivers from the roads."⁽⁵⁾ The defendant in Zielke wascharged with four counts ofhomicide by intoxicated use of amotor vehicle. He consented toa breath test at the scene butwas not read the IA form. Thecourt held that although theofficer should have read the IAform, it would defeat thelegislature's stated intent toreverse the conviction andsuppress the chemical testresult.⁽⁶⁾

State v. Grade

In State v. Grade,⁽⁷⁾ the court ofappeals held that in "construinga statute, the primary source ofconstruction is the language ofthe statute itself."⁽⁸⁾ Thelanguage of the disputed sectionof the statute reads, "a lawenforcement officer may requestthe person to provide one ormore samples of his or herbreath, blood or urine"(emphasis added). Though thelanguage clearly gives an officerthe ability to perform each test,it is not clear whether the IAform must be read before eachindividual test. Therefore, wereturn to the intent of the statuteto determine its meaning.

The implied consent law isintended for two reasons: 1) tomake it easier for lawenforcement officers "to obtainevidence to prosecute drunkdrivers"⁽⁹⁾ and 2) to informsuspects of the law and possibleconsequences for violating thelaw. As stated earlier, torequire an officer to read the IAform before each and every test(and suppress evidence collectedwithout multiple readings)would clearly defeat the firststated purpose of the statute, "toobtain evidence." Further, torequire an officer to read the IAform before every test issuperfluous in that the accusedhas already been informed bythe first reading. In fact, afterthe first reading, the suspect hasbeen put on notice concerningthe law and need not beinformed again. The statutoryintent is met with one reading ofthe Informing the Accused.

Wisconsin courts havetraditionally upheld theadmissibility of chemical testevidence over proceduralviolations. For example, inState v. Zielke the court heldthat "non-compliance withprocedures of the impliedconsent law does not renderchemical test evidence otherwiseconstitutionally obtainedinadmissible."⁽¹⁰⁾ As mentionedabove, the officer in Zielke didnot read the IA form but reliedon probable cause, exigentcircumstances, and thedefendant's actual consent. Thecourt concluded that suppressinga blood test result that wasconstitutionally obtained would"frustrate the objectives of thelaw, lead to absurd results, andserve no legitimate purpose."⁽¹¹⁾

In the case at hand, it isundisputed that the IA form wasread and that the defendantconsented to both a breath testand a blood test. The onlyissue is whether the officershould have read the IA form asecond time after the first testfailed. Based on the court'sreasoning in Zielke, a secondreading of the IA form by thearresting officer would not berequired to allow theadmissibility of the subsequentblood test results. However,the court in Zielke clearlycautioned law enforcementofficers "to comply with theprocedures of the impliedconsent law as a means ofavoiding potential due processand fourth amendmentviolations."⁽¹²⁾

County of Eau Claire v. Resler

In County of Eau Claire v.Resler,⁽¹³⁾ the court of appealsrefused to suppress evidenceobtained by an officer who didnot comply with the impliedconsent law. Like Zielke, thecourt held that the chemical testevidence was legally obtainedbased on the officer's probablecause to arrest, the existence ofexigent circumstances, and thedefendant's actual consent to thetesting. The Resler courtconcluded that "'[t]he impliedconsent law is an importantweapon in the battle againstdrunk driving in this State. Neither the law, its history [n]orcommon sense allows this courtto countenance its use as ashield by the defense to preventconstitutionally obtainedevidence from being admitted attrial.'"⁽¹⁴⁾

In the case at hand, the officerhad probable cause to arrest thedefendant for OWI, there wereexigent circumstances to obtainevidence of defendant'sintoxication, and the defendantconsented to be tested a firsttime as evidenced by the IAform and a second time asevidenced by videotape. Therefore, a second reading ofthe IA form was not required.

State v. Muente

In State v. Muente,⁽¹⁵⁾ the courtof appeals held that "substantialcompliance will suffice if it is'actual compliance in respect tothe substance essential to everyreasonable objective of thestatute.'"⁽¹⁶⁾ In Muente, thedefendant refused to take abreath test, alleging that the IAform did not properly informhim according to the exactwording of the law. However,the court concluded that Muentewas adequately forwarned of thepossible penalties and licensesanctions for either refusing achemical test or taking a testresulting in a prohibited alcoholconcentration. Therefore, thereasonable objective of theimplied consent law wasfulfilled.

In the case presented here, thedefendant was read the IA formbefore submitting to the firsttest. He was made aware of thelaw. He was also informed ofthe consequences if he refusedto take a chemical test. Basedon the officer's initial reading ofthe form, the defendantconsented to be tested. It isunrealistic to conclude that thedefendant did not understandthat the second test would beconducted under the same legalguidelines as the firstincomplete test. Because thedefendant was already givennotice and informed of the law,the blood test result should notbe suppressed.⁽¹⁷⁾

State v. Donner

In the recently decided case ofState v. Donner,⁽¹⁸⁾ the court ofappeals held that the impliedconsent law permits an officerto request "one or more samplesof [the suspect's] breath, bloodor urine."⁽¹⁹⁾ In Donner, thedefendant consented to anintoxilyzer test which producedan alcohol concentration readingof .09%. The officer thenrequested a blood test basedupon his suspicions that thedefendant had also usedmarijuana. The defendantrefused the second test.⁽²⁰⁾ Thecourt concluded the impliedconsent law permitted theofficer to request an additionaltest and that the IA form hadfully advised the defendant ofthe consequences for refusingthe additional test.⁽²¹⁾

Conclusion

Clearly, the failure of theofficer to read the IA form for asecond time should not lead tothe suppression of the blood testevidence. While it is reasonableto conclude that the impliedconsent law requires the IAform be read once to put thesuspect on notice, werecommend that every officerread the IA form before eachtest or, at a minimum, remindthe suspect that the IA formremains in effect for eachsubsequent test. This policywill prevent future challenges tolegally obtained evidenceagainst OWI offenders.

Endnotes

1. This recommendation isconsistent with court procedureconcerning sworn testimony. Oncea witness is sworn in, he or sheremains under oath for the durationof the trial. If called later in the trialto testify, the judge simply remindsthe witness that he or she is stillunder oath without being sworn inagain.

2. The officer wrote "breath" inthe space provided on the form inresponse to the question, "Will yousubmit to an evidentiary chemicaltest of your ___________ (breath,blood, urine)?" Informing TheAccused, Wis. Dep't of Transp.,SP4197 894 § 343.305(4), Wis.Stats.

3. The state's breath examinertraining program instructs studentsthat "[w]hen there is a change ofprimary tests, another Informing theAccused form [SP-4197] should beread and filled out." See Wis. Dep'tof Transp. and Wis. State Patrol,Basic Training Program for BreathExaminer Specialist, Student StudyGuide (rev. 7/1/92).

4. 137 Wis.2d 39 (1987).

5. Id. at 41. See also State v.Neitzel, 95 Wis.2d 191 (1980), andState v. Brooks, 113 Wis.2d 347(1983).

6. Zielke, supra note 4 at 53. The court reasoned that Zielke'svoluntary consent to take a breathtest was enough on its own to allowthe evidence to be admitted intocourt.

7. 165 Wis.2d 143 (Ct. App.1991).

8. Id. at 148.

9. The court concluded that"[s]uch evidence was needed toimprove the rate of convictions sothat those who drive whileintoxicated would be punished andso that others are deterred fromdriving while drunk." Zielke, supranote 4 at 46.

10. Zielke, supra note 4 at 41.

11. Id. at 40-41.

12. Id. at 54.

13. 151 Wis.2d 645 (Ct. App.1989).

14. Id. at 653, citing State v.Zielke, supra note 4 at 56.

15. 159 Wis.2d 279 (Ct. App.1990).

16. The Piskula court cited Muentein concluding that officers did nothave to read the commercial driversection of the IA form tononcommercial drivers. The courtreasoned that the officer, in readingthe applicable section, substantiallycomplied with the substance of theimplied consent law. Although thisportion of the court's decisionconcerning noncommercial drivershas changed since Piskula, the"substantial compliance" portion ofthe decision remains the law. SeeVillage of Elm Grove v. Landowski,181 Wis.2d 137 (Ct. App. 1993).

17. An analogous argument can bemade to the Miranda warnings. Once a suspect is read the Mirandawarnings, he or she is on notice. After the first reading, every officerwho questions an informed suspectdoes not have to reread the Mirandawarnings. Suspects are believed tobe informed the first time and areexpected to understand that theMiranda warnings apply to allfurther contact with investigatingofficers.

18. 192 Wis.2d 305, 531 N.W.2d369 (Ct. App. 1995).

19. Id. at 372.

20. Id. at 371. The state did notpursue a revocation hearing based ondefendant's refusal. However, thecourt concluded the state was notrequired to pursue revocation tofulfill the requirements of theimplied consent law.

21. Id. at 373.