2013 WI 106
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP1426
COMPLETE TITLE: In the matter of the refusal of Brandon H.
Bentdahl:
State of Wisconsin,
Plaintiff-Appellant-Petitioner,
v.
Brandon H. Bentdahl,
Defendant-Respondent.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 345 Wis. 2d 848, 826 N.W.2d 123
(Ct. App. 2012 – Unpublished)
OPINION FILED: December 27, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 15, 2013
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-appellant-petitioner, the cause was
argued by Michael C. Sanders, assistant attorney general, with
whom on the briefs was J.B. Van Hollen, attorney general, and
oral argument by Michael C. Sanders.
For the defendant-respondent, there was a brief by Barry S.
Cohen, and Barry S. Cohen, S.C., Elkhart Lake, and oral argument
by Barry S. Cohen.
2013 WI 106
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP1426
(L.C. No. 2010TR8034R)
STATE OF WISCONSIN : IN SUPREME COURT
In the matter of the refusal of Brandon H.
Bentdahl:
State of Wisconsin, FILED
Plaintiff-Appellant-Petitioner,
DEC 27, 2013
v.
Diane M. Fremgen
Clerk of Supreme Court
Brandon H. Bentdahl,
Defendant-Respondent.
REVIEW of a decision of the Court of Appeals. Modified and
affirmed and, as modified, cause remanded.
¶1 N. PATRICK CROOKS, J. This is a review of an
unpublished court of appeals' decision that reversed the circuit
court.1 The petitioner, the State, asks this court to determine
1
State v. Bentdahl, No. 2012AP1426, unpublished slip op.
(Wis. Ct. App. Dec. 6, 2012).
No. 2012AP1426
whether State v. Brooks2 applies when a defendant fails to
request a refusal hearing within the statutory ten-day time
limit and chooses to plead not guilty to the underlying
operating a motor vehicle while intoxicated (OWI) or OWI-related
offense. The State further asks this court to determine whether
Brooks continues to be good law considering Wisconsin's implied
consent statute, Wis. Stat. § 343.305 (2009-10).3
¶2 This case arises from Brandon H. Bentdahl's refusal
to consent to chemical testing to determine his blood alcohol
level at the time of his November 17, 2010, arrest for OWI and
operating with a prohibited alcohol concentration (PAC).
Bentdahl pleaded not guilty to the OWI and PAC charges; he did
not request a hearing on the refusal charge within the ten-day
time limit.
¶3 After a jury acquitted Bentdahl of the OWI and PAC
charges, the Columbia County Circuit Court, the Honorable Alan
J. White, presiding, granted Bentdahl's motion to dismiss the
refusal charge. It held that an alleged sloppily written date
on the notice informing Bentdahl of the State's intent to revoke
his operating privileges for his refusal, which he received at
the time of his OWI/PAC arrest, both deprived him of proper
2
State v. Brooks, 113 Wis. 2d 347, 335 N.W.2d 354 (1983).
In Brooks, this court upheld a circuit court's discretionary
decision to dismiss a refusal charge when the defendant had
already pleaded guilty to the underlying OWI charge by the time
of his refusal hearing. Id. at 348.
3
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
2
No. 2012AP1426
notice and deprived the circuit court of proper jurisdiction.
The court of appeals reversed the circuit court's finding of
improper notice, but remanded the case to the circuit court for
that court to exercise its discretion as to whether to dismiss
the refusal charge.
¶4 The State appealed, arguing that the court of appeals
improperly extended the holding in Brooks when, relying on
Brooks, it instructed the circuit court to determine whether it
would exercise its discretion to dismiss the refusal charge.
The State asks this court to hold that Brooks does not extend to
situations where a defendant is acquitted of the underlying OWI
and OWI-related charge at trial. In addition, the State asks
this court to clarify whether Brooks is still good law.
¶5 Bentdahl argues that these questions are not properly
before this court. He maintains that the court of appeals'
decision was not adverse to the State and the State cannot
appeal such a decision. As we will address, we conclude that
the court of appeals' decision was, in part, adverse to the
State; therefore, the State may appeal. In addition, Bentdahl
argues that this case is not ripe for review and that the unique
facts of this case make review unnecessary; however, these
arguments are both undeveloped. Typically, this court does not
address undeveloped arguments, State v. Gracia, 2013 WI 15, ¶28,
n.13, 345 Wis. 2d 488, 826 N.W.2d 87, and we decline to do so in
this instance.
¶6 We do not review the court of appeals' decision that
notice was proper in this case, since that issue is not before
3
No. 2012AP1426
us. The State's petition for review asked this court to address
two issues related to State v. Brooks. While Bentdahl opposed
the State's petition for review, he did not ask this court to
review the portion of the court of appeals' decision that found
proper notice. Additionally, neither party sets forth any
argument regarding notice in the briefing to this court.
¶7 We conclude that the court of appeals improperly
extended the holding of Brooks, when it held that a circuit
court could dismiss a refusal charge under the circumstances
presented by this case. Under Brooks, a circuit court has the
discretionary authority to dismiss a refusal charge only if the
defendant has already pleaded guilty to the underlying OWI or
OWI-related charge by the time of his or her refusal hearing,
which was timely requested. Extending Brooks to allow circuit
courts the discretionary authority to dismiss refusal charges in
cases where a defendant has pleaded not guilty to the underlying
OWI, PAC, or other related charge would contravene the purpose
of Wis. Stat. § 343.305, Wisconsin's implied consent statute.
In other words, 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.
¶8 The language of Wis. Stat. § 343.305(10) and our
recent interpretation of that language in Vill. of Elm Grove v.
4
No. 2012AP1426
Brefka4 make clear that 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. Therefore we remand this case to the circuit court with
instructions to impose the applicable penalties, including
revocation of Bentdahl's operating privileges, due to his
refusal to consent to chemical testing at the time of his
OWI/PAC arrest, and his failure to request a refusal hearing
within the statutory time period.
I. Background
¶9 The facts of this case are undisputed. On November
17, 2010, a Portage police officer arrested Bentdahl for OWI and
PAC violations. The officer read Bentdahl all of the
information required by Wis. Stat. § 343.305(4),5 by using what
is known as the "Informing the Accused" form. Bentdahl refused
the officer's request that he consent to a blood test, which is
contrary to Wis. Stat. § 343.305(2).6 The officer transported
4
Vill. of Elm Grove v. Brefka, 2013 WI 54, 348 Wis. 2d 282,
832 N.W.2d 121 (2013).
5
Section 343.305(4) provides, in part, "If you refuse to
take any test that this agency requests, your operating
privilege will be revoked and you will be subject to other
penalties."
6
Wisconsin Stat. § 343.305(2) provides:
5
No. 2012AP1426
Bentdahl to a local hospital, where hospital staff obtained a
blood sample without incident.
¶10 Following the blood draw, the officer gave Bentdahl
notice of intent to revoke his operating privileges as required
by Wis. Stat. § 343.305(9).7 Bentdahl did not request a hearing
on the refusal charge within the ten-day time limit set forth in
Wis. Stat. § 343.305(9)-(10). Therefore, the circuit court
revoked his operating privileges on December 17, 2010.
Implied consent. Any person who is on duty time with
respect to a commercial motor vehicle or drives or
operates a motor vehicle upon the public highways of
this state, or in those areas enumerated in s. 346.61,
is deemed to have given consent to one or more tests
of his or her breath, blood or urine, for the purpose
of determining the presence or quantity in his or her
blood or breath, of alcohol, controlled substances,
controlled substance analogs or other drugs, or any
combination of alcohol, controlled substances,
controlled substance analogs and other drugs, when
requested to do so by a law enforcement officer under
sub. (3) (a) or (am) or when required to do so under
sub. (3) (ar) or (b). Any such tests shall be
administered upon the request of a law enforcement
officer. The law enforcement agency by which the
officer is employed shall be prepared to administer,
either at its agency or any other agency or facility,
2 of the 3 tests under sub. (3) (a), (am), or (ar),
and may designate which of the tests shall be
administered first.
7
Pursuant to Wis. Stat. § 343.305(9)4., part of the notice
given to Bentdahl contains the following language:
That the person may request a hearing on the
revocation within 10 days by mailing or delivering a
written request to the court whose address is
specified in the notice. If no request for a hearing
is received within the 10-day period, the revocation
period commences 30 days after the notice is issued.
6
No. 2012AP1426
¶11 Bentdahl pleaded not guilty to the underlying OWI and
PAC charges. On January 5, 2012, a jury acquitted him of both
charges.
¶12 Approximately two weeks later, Bentdahl's counsel
approached the State to discuss what he claimed was a sloppily
written date on the notice Bentdahl received at the time of his
OWI/PAC arrest. After viewing the date of notice and agreeing
that the officer wrote out the date in a somewhat confusing
fashion, the State agreed not to oppose Bentdahl's motion to
vacate the refusal conviction. The circuit court later granted
Bentdahl's motion, vacated the refusal conviction, and scheduled
a date for a hearing on the refusal charge.
¶13 The circuit court held a hearing on the refusal
charge. Bentdahl argued that the refusal charge should be
dismissed based on a lack of proper notice or, alternatively,
under Brooks, at the circuit court's discretion. The circuit
court determined that the officer's poor penmanship denied
Bentdahl proper notice; therefore, the circuit court did not
have jurisdiction. Accordingly, the circuit court dismissed the
refusal charge without reaching Bentdahl's alternative argument
regarding the circuit court's discretion.
¶14 The court of appeals reversed the circuit court,
reasoning that Bentdahl had proper notice. The court of appeals
held, "[t]he officer's writing the date as '111710' with a messy
'0' did not make the notice defective." State v. Bentdahl,
No. 2012AP1426, unpublished slip op., ¶11 (Wis. Ct. App. Dec. 6,
2012). It reasoned that "[i]t did not make sense to disregard
7
No. 2012AP1426
the ten-day and thirty-day deadlines in the notice by inserting
slashes so as to come up with a date that was ten days before
the incident, when the date without slashes matched the date of
the incident." Id., ¶10.
¶15 The court of appeals, relying on Brooks, then remanded
the case to the circuit court to address Bentdahl's alternative
argument and determine whether that court would exercise its
discretion to dismiss the refusal charge. In Brooks, this court
held that a circuit court properly exercised its discretion in
dismissing a refusal charge,
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.
Brooks, 113 Wis. 2d at 348. From our holding in Brooks, the
court of appeals reasoned that "[t]hese same purposes may be
served where a court dismisses a refusal charge against a
defendant who was acquitted before the refusal hearing, in a
trial where intoxication evidence was presented, depending on
all of the pertinent facts." State v. Bentdahl, No. 2012AP1426,
unpublished slip op., ¶12 (Wis. Ct. App. Dec. 6, 2012).
¶16 The State asks this court to determine two issues
related to Brooks. First, whether circuit courts can dismiss
refusal charges when the defendant pleads not guilty to the
underlying OWI, PAC, or other OWI-related charges. Second,
whether the discretionary authority granted to circuit courts
8
No. 2012AP1426
under Brooks' holding is consistent with the mandatory language
of Wis. Stat. § 343.305(9)-(10).
II. Standard of Review
¶17 This case requires us to interpret the meaning of
Wis. Stat. § 343.305, Wisconsin's implied consent statute. "The
interpretation of a statute presents a question of law, which we
review de novo." Meriter Hosp., Inc. v. Dane Cnty., 2004 WI
145, ¶12, 277 Wis. 2d 1, 689 N.W.2d 627. "Although we consider
this question independent of the decisions of the circuit court
and the court of appeals, we nevertheless benefit from their
analyses." Id.
III. Analysis
A.
¶18 We are asked to interpret Wisconsin's implied consent
statute and determine whether circuit courts have discretionary
authority to dismiss refusal charges under different factual
circumstances from those we previously addressed in Brooks.
Wisconsin's implied consent statute provides that, by driving on
Wisconsin's public roads, drivers give consent to "one or more
tests of his or her breath, blood or urine" to identify the
presence of intoxicating substances in his or her system if
requested by law enforcement. Wis. Stat. § 343.305(2).
Recently, we explained Wis. Stat. § 343.305 succinctly:
Upon arrest of a person for violation of an OWI-
related statute, a law enforcement officer may request
the person to provide a blood, breath, or urine sample
for chemical testing. Wis. Stat. § 343.305(3)(a). At
the time of the request for a sample, the officer must
read to the person certain information set forth in
9
No. 2012AP1426
§ 343.305(4), referred to as the Informing the Accused
form.
If the person submits to chemical testing and the test
reveals the presence of a detectable amount of a
restricted controlled substance or a prohibited
alcohol concentration, the person is subjected to an
administrative suspension of his operating privileges.
Wis. Stat. § 343.305(7)(a). The person has the right
to an administrative hearing and to judicial review.
Wis. Stat. § 343.305(8). The administrative hearing is
limited to certain issues that are set forth by
statute. Wis. Stat. § 343.305(8)(b)2.
If, on the other hand, the person refuses to submit to
chemical testing, he is informed of the State's intent
to immediately revoke his operating privileges. Wis.
Stat. § 343.305(9)(a). The person is also informed
that he may request a refusal hearing in court. Wis.
Stat. § 343.305(9)(a)4.
State v. Anagnos, 2012 WI 64, ¶¶22-24, 341 Wis. 2d 576, 815
N.W.2d 675 (footnote omitted) (describing the 2009-10
version of Wis. Stat. § 343.305).
B.
¶19 We note that, although the facts of this case involve
a warrantless blood draw to determine blood alcohol
concentration, the Fourth Amendment is not at issue in this
case. Just last term, the United States Supreme Court
considered whether a warrantless blood draw from a suspected
drunk driver could be upheld under the Fourth Amendment.
Missouri v. McNeely, 133 S. Ct. 1552 (2013). The warrantless
blood draw in this case occurred on November 17, 2010, before
the April 17, 2013, McNeely decision and we reiterate that our
decision today does not consider any issues related to
warrantless blood draws.
10
No. 2012AP1426
¶20 Bentdahl challenges whether this case is properly
before this court. Specifically, Bentdahl argues that the court
of appeals' decision was not adverse to the State and,
therefore, the State cannot appeal that determination. The
State contends that the court of appeals determination was
adverse, in part, to its position.
¶21 As a preliminary matter, we hold that the court of
appeals issued a decision that was partially adverse to the
State, which is sufficient to allow the State to appeal. A
party may appeal "an adverse decision of the court of appeals"
to this court. Wis. Stat. § 809.62(1m)(a). The Wisconsin
statutes define an adverse decision as "a final order or
decision of the court of appeals, the result of which is
contrary, in whole or in part, to the result sought in that
court by any party seeking review." Wis. Stat. § 806.62(1g)(a)
(emphasis added). Furthermore, an adverse decision "includes
the court of appeals' denial of or failure to grant the full
relief sought or the court of appeals' denial of the preferred
form of relief."8 Wis. Stat. § 806.62(1g)(b). Here, the court
8
We have previously clarified the meaning of an adverse
decision in both Neely v. State, 89 Wis. 2d 755, 279 N.W.2d 255
(1979) and State v. Castillo, 213 Wis. 2d 488, 570 N.W.2d 44
(1997). In Neely, we determined that the meaning of "decision"
is properly considered as the result reached by the deciding
court and we held that "a party to whom the result is favorable
may not petition for review of the decision simply because that
party disagrees with the rationale expressed in the opinion."
Neely, 89 Wis. 2d at 758. In Castillo, we further clarified
that an adverse decision does not result merely because the
court of appeals determined that certain issues were unnecessary
to reach. Castillo, 213 Wis. 2d at 492.
11
No. 2012AP1426
of appeals ruled in favor of the State on the issue of notice.
However, the court of appeals also remanded the case to the
circuit court for that court to exercise its discretion as to
whether to dismiss Bentdahl's refusal charge. This is not the
relief requested by the State. Instead the State had requested
that the court of appeals instruct the circuit court to enter a
refusal conviction against Bentdahl. The court of appeals'
instructions were a part of its decision, which denied the State
the full relief that it sought; therefore, the State may appeal.
C.
¶22 We next consider several issues related to Brooks.
First, we consider whether Brooks grants discretionary authority
to circuit courts to dismiss refusal charges when the defendant
chooses to plead not guilty to the underlying OWI or OWI-related
charge. Second, we determine whether Brooks applies when a
defendant does not request a refusal hearing within the ten-day
time limit. Finally, we consider whether Brooks should be
overruled.
¶23 The State argues that the court of appeals improperly
extended the holding of Brooks when it remanded this case to the
circuit court with instructions to decide whether or not it
would choose to exercise its discretion to dismiss the refusal
charge. The State asserts that the purpose of the implied
consent statute is to gather evidence to secure convictions and
remove drunk drivers from Wisconsin roads. It concludes that an
extension of Brooks to the facts of this case does not achieve
12
No. 2012AP1426
the purpose of the implied consent statute, but rather, would
encourage drivers to refuse to consent to chemical testing.
¶24 Furthermore, the State contends that that language of
Wis. Stat. § 343.305(9)-(10), as interpreted by Brefka, 348 Wis.
2d 282, ¶4, does not allow a circuit court any discretionary
authority, and that we must either overturn Brooks or limit its
application to the 1979-80 version of the Wisconsin statutes,
which that case considered. For these reasons, the State
contends that the court of appeals should have remanded this
case to the circuit court with instructions to impose the
applicable penalties against Bentdahl on the refusal charge.
¶25 In contrast, Bentdahl asks this court to affirm the
court of appeals' instructions to the circuit court. Under
Bentdahl's interpretation, Brooks grants circuit courts broad
discretionary authority to dismiss refusal charges regardless of
the way the related OWI charges are resolved. This discretion,
Bentdahl argues, is not limited to the factual circumstances
contemplated in Brooks. Finally, Bentdahl argues that
overturning Brooks and eliminating a circuit court's
discretionary authority to dismiss refusal charges entirely
would unnecessarily clog courts by discouraging guilty pleas to
OWI-related offenses.
¶26 We agree with the State that the court of appeals
improperly extended the holding of Brooks when it applied it to
the facts of this case. We hold that circuit courts have no
discretionary authority to dismiss refusal charges when the
defendant chooses to plead not guilty to the underlying OWI or
13
No. 2012AP1426
OWI-related charge. We further hold that a circuit court has no
discretionary authority to dismiss refusal charges when the
defendant fails to request a refusal hearing within the ten-day
time limit. However, as we will explain, we decline the State's
invitation to overrule Brooks.
¶27 In Brooks, this court considered whether a circuit
court had abused its discretion when it dismissed a refusal
charge against a defendant who had already pleaded guilty to the
underlying OWI charge at the time of his refusal hearing, which
he had timely requested. Brooks, 113 Wis. 2d at 348-49; Wis.
Stat. § 343.305(3)(b)4. (1979-80) (requiring that a refusal
hearing be requested "on or prior to the citation return date").
In that case, we held that the circuit court "appropriately
exercised its discretion." Brooks, 113 Wis. 2d at 348. Our
analysis focused on the purpose of the implied consent statute
and the fact that the defendant in Brooks had pleaded guilty to
the underlying OWI charge. See id. at 348-49.
¶28 The purpose of Wisconsin's implied consent statute is
to encourage drivers, upon a request by law enforcement, to
submit to chemical testing. Id. at 348. This allows for the
efficient gathering of evidence that may be used to secure
drunk-driving convictions. Id.; State v. Neitzel, 95 Wis. 2d
191, 203, 289 N.W.2d 828 (1980).
¶29 Having established the purpose of the implied consent
statute, to secure OWI-related convictions, our reasoning in
Brooks then turned to whether this purpose was met when a
defendant had already pleaded guilty to the underlying OWI
14
No. 2012AP1426
charge at the time of his or her refusal hearing. Brooks, 113
Wis. 2d at 353-57. We found "[i]f the person who is charged
with OWI . . . 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." Id. at
348-49.
¶30 The reasoning in Brooks did not broadly grant
discretionary authority to circuit courts. See id. at 359.
Instead the specific reasoning in Brooks was tied to the fact
that the defendant pleaded guilty to the underlying OWI charge
by the time of his refusal hearing, which he timely requested.
See id. In Brooks, this court repeatedly reasoned that the
purpose of the implied consent statute, to gather evidence to
convict drunk drivers, was served when the defendant pleaded
guilty to the underlying OWI charge. Id. In Brooks we stated:
Accordingly, we conclude that the general purpose
behind the laws relating to operating while under the
influence of intoxicants and implied consent to take
alcohol tests—to get drunk drivers off the road as
expeditiously as possible and with as little possible
disruption of the court's calendar—is best served by
the exercise of discretion in the dismissal of a
refusal case once there has been a plea of guilty to
the OWI charge.
Id.
¶31 The reasoning in Brooks applies only when a defendant
enters a guilty plea to the underlying OWI or OWI-related charge
and when the defendant complies with the statutory time limit to
request a refusal hearing. Unlike Brooks, Bentdahl did not
plead guilty to the underlying OWI or PAC charges, and unlike
15
No. 2012AP1426
Brooks, Bentdahl did not request a refusal hearing within the
ten-day time limit set forth in Wis. Stat. § 343.305(9)-(10).
The policy reasons for allowing circuit courts discretionary
authority to dismiss refusal charges simply do not apply when a
defendant chooses to plead not guilty. This is especially true
when a defendant, like Bentdahl, is acquitted of the underlying
OWI-related charges. In other words, giving circuit courts
discretionary authority to dismiss refusal charges when a
defendant pleads not guilty to the underlying OWI-related charge
would eliminate a great deal of the incentive to comply with the
implied consent statute.
¶32 Furthermore, the language of the implied consent
statute governing court-ordered penalties for refusal does not
grant discretionary authority to circuit courts. See Wis. Stat.
§ 343.305(9)-(10). Wisconsin Stat. § 343.305(10) provides, in
part, "[i]f no hearing was requested, the revocation period
shall begin 30 days after the date of the refusal." Wis. Stat.
§ 343.305(10) (emphasis added). Per the statutory language, if
no hearing is requested within the ten-day time period, then
revocation is mandatory.
¶33 This court recently interpreted the language of Wis.
Stat. § 343.305(9)(a)4. and (10)(a) and held that the ten-day
time limit to request a refusal hearing is mandatory and not
subject to excusable neglect. Brefka, 348 Wis. 2d 282, ¶4.
Therefore, a circuit court has no competency to hear a
defendant's request to extend the ten-day time period. Id.
16
No. 2012AP1426
¶34 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)9
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
9
The relevant portion of Wis. Stat. § 343.305(10)(a)
provides: "If no hearing was requested, the revocation period
shall begin 30 days after the date of the refusal." (emphasis
added).
17
No. 2012AP1426
refusal charge if the defendant does not request a refusal
hearing within the statutory ten-day time limit.10
¶35 Finally, we decline the State's invitation to overrule
Brooks. As previously discussed, Brooks is not applicable to
this case since it presented a totally different fact situation.
We see no reason to disturb the holding in Brooks. Our decision
in Brooks is longstanding precedent that fosters plea agreements
in OWI and OWI-related cases. As we stated in Brooks, when a
defendant has pleaded guilty to the underlying OWI charge or
charges by the time of the refusal hearing, "the exercise of
discretion . . . by the trial court may well have the tendency
to increase OWI convictions as well as to conserve limited
judicial resources by encouraging guilty pleas and reducing the
number of time consuming refusal hearings." Brooks, 113 Wis. 2d
10
Although under Wis. Stat. § 967.055(2) a prosecutor may
petition the court for a dismissal of a refusal charge, which a
court seemingly could grant upon a finding that dismissal is in
the public interest, the plain language of Wis. Stat.
§ 343.305(9)(a)4. and (10)(a) along with our recent
interpretation of those statutory provisions in Brekfa lead 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.
Compare Wis. Stat. § 967.055 with Wis. Stat. § 343.305(9)(a)4.
and (10)(a) and Brefka, 348 Wis. 2d 282, ¶¶4, 39. In addition,
the defendant must also plead guilty to the underlying OWI or
OWI-related charge.
We do recognize, however, that factual circumstances
distinct from those at issue today may arise, which make a
request for a refusal hearing within the ten-day time limit or
entry of a plea of guilty impossible. We do not decide what the
discretionary authority of the circuit court would be under such
circumstances.
18
No. 2012AP1426
at 357. Brooks continues to grant circuit courts discretionary
authority to dismiss refusal charges when a defendant requests a
hearing within the statutory ten-day time period and pleads
guilty to the underlying OWI or OWI-related offense.
IV. Conclusion
¶36 We do not review the court of appeals' decision that
notice was proper in this case, since that issue is not before
us. We conclude, however, that the court of appeals improperly
extended the holding of Brooks, when it held that a circuit
court could dismiss a refusal charge under the circumstances
presented by this case. Under Brooks, a circuit court has the
discretionary authority to dismiss a refusal charge only if the
defendant has already pleaded guilty to the underlying OWI or
OWI-related charge at the time of his or her refusal hearing,
which was requested timely. Extending Brooks to allow circuit
courts the discretionary authority to dismiss refusal charges in
cases where a defendant has pleaded not guilty to the underlying
OWI, PAC, or other related charge would contravene the purpose
of Wis. Stat. § 343.305, Wisconsin's implied consent statute.
In other words, 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.
¶37 The language of Wis. Stat. § 343.305(10) and our
recent interpretation of that language in Brefka make clear that
a circuit court has no discretionary authority to dismiss a
19
No. 2012AP1426
refusal charge when a defendant fails to request a refusal
hearing within the statutory ten-day time period. Therefore we
remand this case to the circuit court with instructions to
impose the applicable penalties, including revocation of
Bentdahl's operating privileges, due to his refusal to consent
to chemical testing at the time of his OWI/PAC arrest, and his
failure to request a refusal hearing within the statutory time
period.
By the Court.—The decision of the court of appeals is modified
and affirmed and, as modified, the cause remanded to the circuit
court.
20
No. 2012AP1426
1