"Brooks, . . . which is longstanding precedent of this court, applies only when a defendant meets two requirements. Namely, a defendant must request a refusal hearing within the statutory ten-day time limit and must plead guilty to the underlying OWI or OWI-related charge."
Not exactly the Christmas gift we were hoping for: On December 27, 2013, the Supreme Court of Wisconsin, in State of Wisconsin v. Bentdahl, sharply limited the discretion of Wisconsin Circuit Court judges to dismiss Implied Consent Refusal convictions. This, of course, includes the La Crosse County Circuit Court, where I have had MANY such Refusal convictions dismissed.
A person who is arrested for OWI/PAC must agree to supply a sample of their breath, blood or urine to their arresting officer. Wis. Stat. s. 343.305(9). Implied Consent Refusals--refusal to supply such a sample--can be counted as a prior OWI/PAC conviction in Wisconsin and most other states, even when the person is later found NOT GUILTY of the actual OWI/PAC charge they were arrested for. Wis. Stat. s. 343.307.
Because of Bentdahl, even a person later found NOT GUILTY of the actual OWI/PAC can't ask the Judge for dismissal of the Refusal conviction. Worse, now a person who relieves the State of the time and expense of having to prove him/her guilty of OWI/PAC can't request dismissal of the Implied Consent Refusal conviction unless they actually challenged the Refusal within 10 short days.
Yes, there is only 10 days to challenge a Refusal charge by filing a request for a refusal hearing. Many--including innocent people--do not meet the short deadline. Unfortunately, I know that some people charged with Refusal are not even given the notice of their right to challenge the Refusal. In either respect, this means that an innocent person can be unwittingly saddled with the equivalent an OWI/PAC conviction for life, with all the stigma and expense that brings.
The Bentdahl court did not overturn State v. Brooks, 113 Wis. 2d 347, 335 N.W.2d 354 (1983), the case that first acknowledged Wisconsin Circuit Court judges' discretion to dismiss Refusal convictions after a plea to OWI/PAC. It just limited dismissal to cases where the defendant (1) first challenged their refusal to test, and (2) pleads guilty. However, as was the case in Bentdahl, Refusals were also frequently dismissed for defendants who did not challenge the Refusal within 10 days, pleaded no contest, and/or or were found not guilty of the actual charge of OWI/PAC.
A person with a first Refusal conviction will be revoked twice as long as an actual OWI/PAC conviction (12 months vs. 6 months (for a first OWI less than .15 BAC)). Pleading to the OWI/PAC would cut the revocation in half if the Refusal is dismissed. Now, the defendant who did not challenge the Refusal charge within 10 days by filing a request for a "Refusal Hearing" will not have that benefit. Hence, there is less incentive to plead guilty. As mentioned, many do not file the request for a hearing in that narrow time frame. However, clients who come to me before passage of the 10 days ALWAYS do.
NOW MORE THAN EVER: IF YOU ARE ISSUED A NOTICE OF INTENT TO REVOKE OPERATING PRIVILEGES FOR ALLEGEDLY REFUSING TO TEST, FILE YOUR REQUEST FOR A REFUSAL HEARING. Call me if you need help doing that.
A person who is arrested for OWI/PAC must agree to supply a sample of their breath, blood or urine to their arresting officer. Wis. Stat. s. 343.305(9). Implied Consent Refusals--refusal to supply such a sample--can be counted as a prior OWI/PAC conviction in Wisconsin and most other states, even when the person is later found NOT GUILTY of the actual OWI/PAC charge they were arrested for. Wis. Stat. s. 343.307.
Because of Bentdahl, even a person later found NOT GUILTY of the actual OWI/PAC can't ask the Judge for dismissal of the Refusal conviction. Worse, now a person who relieves the State of the time and expense of having to prove him/her guilty of OWI/PAC can't request dismissal of the Implied Consent Refusal conviction unless they actually challenged the Refusal within 10 short days.
Yes, there is only 10 days to challenge a Refusal charge by filing a request for a refusal hearing. Many--including innocent people--do not meet the short deadline. Unfortunately, I know that some people charged with Refusal are not even given the notice of their right to challenge the Refusal. In either respect, this means that an innocent person can be unwittingly saddled with the equivalent an OWI/PAC conviction for life, with all the stigma and expense that brings.
The Bentdahl court did not overturn State v. Brooks, 113 Wis. 2d 347, 335 N.W.2d 354 (1983), the case that first acknowledged Wisconsin Circuit Court judges' discretion to dismiss Refusal convictions after a plea to OWI/PAC. It just limited dismissal to cases where the defendant (1) first challenged their refusal to test, and (2) pleads guilty. However, as was the case in Bentdahl, Refusals were also frequently dismissed for defendants who did not challenge the Refusal within 10 days, pleaded no contest, and/or or were found not guilty of the actual charge of OWI/PAC.
A person with a first Refusal conviction will be revoked twice as long as an actual OWI/PAC conviction (12 months vs. 6 months (for a first OWI less than .15 BAC)). Pleading to the OWI/PAC would cut the revocation in half if the Refusal is dismissed. Now, the defendant who did not challenge the Refusal charge within 10 days by filing a request for a "Refusal Hearing" will not have that benefit. Hence, there is less incentive to plead guilty. As mentioned, many do not file the request for a hearing in that narrow time frame. However, clients who come to me before passage of the 10 days ALWAYS do.
NOW MORE THAN EVER: IF YOU ARE ISSUED A NOTICE OF INTENT TO REVOKE OPERATING PRIVILEGES FOR ALLEGEDLY REFUSING TO TEST, FILE YOUR REQUEST FOR A REFUSAL HEARING. Call me if you need help doing that.
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