Village of Elm Grove v. Richard K. Brefka

2013 WI 54

SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP2888
COMPLETE TITLE: Village of Elm Grove,
Plaintiff-Respondent,
v.
Richard K. Brefka,
Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 343 Wis. 2d 680, 819 N.W.2d 563
(Ct. App. 2012 – Unpublished)

OPINION FILED: June 26, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 13, 2013

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: Mark D. Gundrum

JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:

ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Andrew Mishlove and Lauren Stuckert, and Law Offices of
Andrew Mishlove, Glendale, and oral argument by Andrew Mishlove.

For the plaintiff-respondent, there was a brief by Douglas
Hoffer, and de la Mora & de la Mora, Elm Grove, and oral
argument by Douglas Hoffer.
 2013 WI 54
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP2888
(L.C. No. 2011CV2837)

STATE OF WISCONSIN : IN SUPREME COURT

Village of Elm Grove,

Plaintiff-Respondent,
FILED
v.
JUN 26, 2013
Richard K. Brefka,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 ANN WALSH BRADLEY, J. The petitioner, Richard K.
Brefka (Brefka), seeks review of an unpublished opinion of the

court of appeals affirming a decision of the circuit court,
denying Brefka's request for an extension of time.1 Brefka was

arrested for operating a vehicle while intoxicated and
apparently refused a chemical test to ascertain his blood

1
Village of Elm Grove v. Brefka, No. 2011AP2888,
unpublished slip op, (Ct. App. Jun. 19, 2012), affirming the
circuit court for Waukesha County, Mark D. Gundrum, J.,
presiding.
 No. 2011AP2888

alcohol concentration. He subsequently filed a request for a

refusal hearing, but did not file his request within ten days

after he was served with a notice of intent to revoke his

operating privileges as required by Wis. Stat.

§§ 343.305(9)(a)4. and (10)(a) (2009-10). He sought to extend

the time period in which he was allowed to file a request for a

refusal hearing due to excusable neglect.

¶2 The circuit court concluded that because Brefka did

not file a request for a refusal hearing within the required

ten-day time limit, it lacked competency to hear his request to

extend that time limit. It therefore denied Brefka's motion to

extend the ten-day time limit and dismissed his request for a

refusal hearing, remanding the case to the Village of Elm Grove

municipal court (the municipal court) for disposition.

¶3 The Village of Elm Grove (the Village) argues that

Wis. Stat. §§ 343.305(9)(a)4. and (10)(a) set forth a mandatory

requirement to request a refusal hearing within the ten-day time

limit that may not be extended due to excusable neglect. It
asserts that because the statute does not allow the circuit

court to extend the ten-day time limit, the circuit court lacked
competency to hear Brefka's request.

¶4 We conclude that the circuit court is without
competency to hear Brefka's request to extend the ten-day time

limit set forth in Wis. Stat. §§ 343.305(9)(a)4. and (10)(a).
The ten-day time limit is a mandatory requirement that may not

be extended due to excusable neglect. Because the mandatory

ten-day time limit is central to the statutory scheme, the
2
 No. 2011AP2888

circuit court lacked competency to hear Brefka's request to

extend it. Accordingly, we affirm the court of appeals.

I

¶5 The facts of this case are undisputed.

¶6 On December 12, 2010, law enforcement officers from

the Village arrested Brefka and issued him a "Notice of Intent

to Revoke Operating Privilege" (the Notice of Intent). The

Notice of Intent stated that Brefka had refused a chemical test

and identified the date of refusal as December 12, 2010. It

also notified Brefka that he had ten days from the date of the

notice to file a request for a refusal hearing:

You refused a request to submit to a test or tests
under 343.305(3) Wis. Stats. Because of this refusal,
your operating privilege may be revoked.

You have 10 days from the date of this notice to file
a request for a hearing on the revocation with the
court named below. . . . If you do not request a
hearing, the court must revoke your operating
privileges 30 days from the date of this notice.
¶7 Brefka filed a request for a refusal hearing on

December 28, 2010. The municipal court scheduled a refusal

hearing, but the Village filed a motion to strike Brefka's

request for the refusal hearing because Brefka had not submitted

his request within the required ten days under Wis. Stat.

§§ 343.305(9)(a)4. and (10)(a).2

2
All references to the Wisconsin Statutes are to the 2009-
10 version unless otherwise indicated. Wisconsin Stat.
§ 343.305(9)(a)4. provides as follows, in relevant part:

(9) Refusals; notice and court hearing. (a) If a
person refuses to take a test under sub. (3)(a), the
3
 No. 2011AP2888

¶8 Although Brefka conceded that his request for a

refusal hearing was untimely, he requested that the municipal

court extend the ten-day time limit. He alleged that "judgment

was entered due to . . . excusable neglect."

¶9 At a hearing, the municipal court concluded that

Brefka's failure to request a refusal hearing within the ten-day

time limit meant that it lacked competency to hear Brefka's

request to extend the time limit:

law enforcement officer shall immediately prepare a
notice of intent to revoke, by court order under sub.
(10), the person's operating privilege. . . . The
notice of intent to revoke the person's operating
privilege shall contain substantially all of the
following information:

. . . .

4. 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.

Additionally, Wis. Stat. § 343.305(10)(a) provides as
follows, in relevant part:

(10) Refusals; court-ordered revocation. (a) If the
court determines under sub. (9)(d) that a person
improperly refused to take a test or if the person
does not request a hearing within 10 days after the
person has been served with the notice of intent to
revoke the person's operating privilege, the court
shall proceed under this subsection. If no hearing was
requested, the revocation period shall begin 30 days
after the date of the refusal. If a hearing was
requested, the revocation period shall commence 30
days after the date of refusal or immediately upon a
final determination that the refusal was improper,
whichever is later.
4
 No. 2011AP2888

I can't even hear this matter because the refusal
wasn't requested within the 10 day time frame under
343.305(9). It wasn't requested within 10 days. . . .
Counsel for the defense . . . I would like to hear
from you...I know you're making the request that I
extend the time limit but when we're talking about
competency of the court I can't even hear the Motion.
I don't have competency to do anything on this matter
and it's my position that I can do nothing.
The municipal court therefore denied Brefka's request to extend

the ten-day time limit and dismissed his request for a refusal

hearing.3

¶10 Brefka appealed to the Waukesha County Circuit Court.

The Village filed a motion to dismiss, arguing that the circuit

court lacked competency to hear Brefka's request to extend the

ten-day time limit.

¶11 At a motion hearing, the circuit court determined that

it lacked competency. Examining the text of Wis. Stat.

§ 343.305(9)(a)4., the circuit court reasoned that the statute

is "very clear, very specific" and that it "clearly says ten

days without question." Accordingly, the circuit court

concluded that it was "without competency to really address the
appeal," and granted the Village's motion to dismiss, remanding

the case to the municipal court for disposition.

3
The municipal court hearing transcript is incomplete
because the recording device used at the hearing stopped
recording partway through the hearing without the knowledge of
court personnel. The municipal court's ultimate disposition of
the case is not in the transcript of the hearing, but the
parties agree that the municipal court denied Brefka's request
to extend the ten-day time limit on the ground of competency and
ultimately dismissed his untimely request for a refusal hearing.

5
 No. 2011AP2888

¶12 Brefka appealed to the court of appeals following the

circuit court's determinations. The court of appeals affirmed

the circuit court, concluding that "[t]he plain language of the

statute is abundantly clear." Village of Elm Grove v. Brefka,

No. 2011AP2888, unpublished slip op, ¶6 (Ct. App. Jun. 19,

2012). Wisconsin Stat. §§ 343.305(9)(a)4. and (10)(a) "impose a

mandatory obligation on the circuit court to revoke a person's

operating privilege if he or she does not file a request for a

refusal hearing within ten days of the notice of intent to

revoke." Id., ¶10. The court of appeals noted that the ten-day
time limit is a "different procedure" from the general rules of

civil procedure, and that pursuant to Wis. Stat. § 801.01(2),

the rules of civil procedure that allow for relief due to

excusable neglect do not apply.4 Id. Ultimately, it concluded

that the circuit court lacked competency to hear Brefka's

request to extend the ten-day time limit, stating that "failure

to observe statutory time limits deprives a court of

competency." Id., ¶13.

II

4
Wisconsin Stat. § 801.01(2) states the following:

(2) Scope. Chapters 801 to 847 govern procedure and
practice in circuit courts of this state in all civil
actions and special proceedings whether cognizable as
cases at law, in equity or of statutory origin except
where different procedure is prescribed by statute or
rule. Chapters 801 to 847 shall be construed to secure
the just, speedy and inexpensive determination of
every action and proceeding.

6
 No. 2011AP2888

¶13 In this case, we are called upon to review whether the

circuit court has competency to hear Brefka's motion to extend

the ten-day time limit for requesting a refusal hearing set

forth in Wis. Stat. §§ 343.305(9)(a)4. and (10)(a) due to

excusable neglect. Whether a court has competency presents a

question of law that we review independently of the

determinations of the circuit court and the court of appeals.

Village of Trempealeau v. Mikrut, 2004 WI 79, ¶7, 273 Wis. 2d

76, 681 N.W.2d 190.

¶14 In order to determine whether the circuit court has

competency, we must interpret Wis. Stat. § 343.305, also known

as the implied consent law. The interpretation of a statute

presents a question of law, which we also review independently

of the determinations rendered by the circuit court and the

court of appeals. State v. Leitner, 2002 WI 77, ¶16, 253 Wis.

2d 449, 646 N.W.2d 341.

III

¶15 The Village argues that the circuit court does not

have competency to hear Brefka's request to extend the ten-day

time limit set forth in Wis. Stat. §§ 343.305(9)(a)4. and

(10)(a). It advances that the ten-day time limit to request a

refusal hearing and the subsequent requirement that operating

privileges be revoked commencing 30 days after refusal if no

hearing is requested are mandatory requirements. Finally, it

contends that the mandatory nature of the statutory requirements

demonstrates that the legislative purpose of the statutory

7
 No. 2011AP2888

scheme can be fulfilled only if the ten-day time limit cannot be

extended due to excusable neglect.

¶16 The circuit court's determination of competency refers

to its "ability to exercise the subject matter jurisdiction

vested in it" by Article VII, Section 8 of the Wisconsin

Constitution. Mikrut, 273 Wis. 2d 76, ¶9. That section of the

constitution states that "[e]xcept as otherwise provided by law,

the circuit court shall have original jurisdiction in all

matters civil and criminal within this state." Wis. Const. art.

VII, § 8. Although the circuit court may not be deprived of

jurisdiction "[e]xcept as otherwise provided by law," it may

lack competency to render a valid order or judgment in a civil

or criminal matter when the parties fail to meet certain

statutory requirements.5 Mikrut, 273 Wis. 2d 76, ¶9.
¶17 A statutory time limit is one type of statutory

requirement that may result in a loss of the circuit court's

competency, if a party fails to satisfy it. Id., ¶13. However,

noncompliance with a mandatory statute does not always translate

into a loss of competency. State v. Bollig, 222 Wis. 2d 558,

566, 587 N.W.2d 908 (Ct. App. 1998) (citing State v. Kywanda F.,

200 Wis. 2d 26, 33, 546 N.W.2d 440 (1996)). Sometimes the

5
However, this court has urged that "the critical focus is
not . . . on the terminology used to describe the court's power
to proceed in a particular case. The focus is on the effect of
non-compliance with a statutory requirement on the circuit
court's power to proceed." Miller Brewing Co. v. LIRC, 173
Wis. 2d 700, 705 n.1, 495 N.W.2d 660 (1993) (describing the
differences between subject matter jurisdiction and competency).

8
 No. 2011AP2888

"legislative purpose of the statutory scheme [can] be fulfilled,

without strictly following the statutory directive." Id. at

567-68.

¶18 To determine whether the circuit court lacked

competency to hear Brefka's motion to extend the ten-day time

limit set forth in Wis. Stat. §§ 343.305(9)(a)4. and (10)(a), we

must evaluate "the effect of noncompliance on the court's power

to proceed in the particular case before the court." Mikrut,

273 Wis. 2d 76, ¶10. Failures to abide by statutory mandates

that are "central to the statutory scheme" of which they are a

part will deprive the circuit court of competency. Id.

¶19 We therefore look to the requirements imposed by the

relevant statutory scheme to evaluate whether the circuit court

has competency to hear Brefka's motion that the ten-day time

limit be extended due to excusable neglect. The ten-day time

limit is set forth in Wis. Stat. § 343.305, also known as the

implied consent law. This court recently summarized the general

procedures contained in the implied consent law as follows:

Wisconsin Statute § 343.305, known as the implied
consent law, provides that any person who drives on
the public highways of this state is deemed to have
consented to chemical testing upon request by a law
enforcement officer. 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 § 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
9
 No. 2011AP2888

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. This case concerns a single, narrow aspect of the

procedures set forth in the implied consent law——the required

time period in which a person must request a refusal hearing

after refusing to submit to chemical testing.6

¶20 A person must file a request for a refusal hearing

within ten days after the service of the Notice of Intent in

order to proceed to a refusal hearing under Wis. Stat.

§ 343.305(9)(a)4. A 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,"

but "[i]f no request for a hearing is received within the 10-day

period, the revocation period commences 30 days after the notice

is issued." Wis. Stat. § 343.305(9)(a)4.

6
As indicated, this case concerns only a single, narrow
aspect of the statutory refusal procedures set forth in the
implied consent law. Brefka raises no constitutional challenges
in this case. But see Missouri v. McNeely, 133 S. Ct. 1552
(2013).

10
 No. 2011AP2888

¶21 Likewise, Wis. Stat. § 343.305(10)(a) states that "if

the person does not request a hearing within 10 days after the

person has been served with the notice of intent to revoke the

person's operating privilege, the court shall proceed under this

subsection," and "[i]f no hearing was requested, the revocation

period shall begin 30 days after the date of the refusal." Id.

Different revocation periods are set forth that take into

account the person's previous suspensions, revocations, or

convictions. Wis. Stat. § 343.305(10)(b).

¶22 In this case, it is undisputed that Brefka was

informed in the Notice of Intent that he may request a refusal

hearing within ten days of the date it was served upon him.

Wis. Stat. § 343.305(9)(a)4. Additionally, all agree that

Brefka did not file a request for a refusal hearing within the

required ten-day time limit.7 Thus, according to the text of the

implied consent law, the next step in the statutory procedures

is that the circuit court "shall" proceed to order revocation of

his operating privileges, which is to commence 30 days after the

date of refusal. Wis. Stat. § 343.305(10)(a). The parties,
however, dispute whether the word "shall" is mandatory or

directory in nature, and whether it ultimately deprives the

7
Brefka directly states in his briefing to this court that
he "did not [file a request for a refusal hearing] within the
ten-day statutory time limit."

11
 No. 2011AP2888

circuit court of competency to hear Brefka's request to extend

the ten-day time limit.8

¶23 The word "shall" is ordinarily presumed to be

mandatory when it appears in a statute, but may be construed as

directory if necessary to carry out the legislature's clear

intent. Karow v. Milwaukee Cnty. Civil Serv. Comm'n, 82 Wis. 2d

565, 570-71, 263 N.W.2d 214 (1978).9 In Karow, this court

interpreted a statute that set forth a time limit to hold an

administrative hearing before the Milwaukee County Civil Service

Commission. Id. at 568. Karow, a deputy sheriff in Milwaukee
County, was suspended without pay after a complaint was filed

against him by the Milwaukee County Sheriff. Id. at 566-67. A

hearing before the Civil Service Commission was scheduled, but

the assistant corporation counsel assigned to the case became

ill and a substitution of counsel was made. Id. at 567. The

8
Construing the word "shall" as merely directory arguably
allows the circuit court discretion to extend the ten-day time
limit due to excusable neglect. See Eby v. Kozarek, 153 Wis. 2d
75, 79, 83, 450 N.w.2d 249 (1990) (a directory time limit "d[id]
not necessarily deprive the [circuit] court of competency to
exercise its jurisdiction" and did not "mandate dismissal of the
case.").
9
See also Eby, 153 Wis. 2d at 79 ("Under general principles
of statutory construction, the word 'shall' in a statute setting
a time limit is ordinarily presumed to be mandatory."); GMAC
Mortg. Corp. v. Gisvold, 215 Wis. 2d 459, 477, 572 N.W.2d 466
(1998); Cross v. Soderbeck, 94 Wis. 2d 331, 340, 288 N.W.2d 779
(1980); City of Wauwatosa v. Milwaukee Cnty., 22 Wis. 2d 184,
191, 125 N.W.2d 386 (1963) ("Generally in construing statutes,
'may' is construed as permissive and 'shall' is construed as
mandatory unless a different construction is demanded by the
statute in order to carry out the intent of the legislature.").

12
 No. 2011AP2888

new assistant corporation counsel requested that the Civil

Service Commission postpone the hearing because he had not had

time to prepare the case. Id. at 567-68.

¶24 Karow objected to the delay, but the hearing was

postponed. Id. at 568. He later argued that the Civil Service

Commission was statutorily required to hold the hearing within

three weeks of the date the charges were filed against him, and

because that did not happen, he was entitled to a reinstatement.

Id. The statute that set forth the time limit, Wis. Stat.
§ 63.10(2), provided that the Civil Service Commission "shall"

appoint a time and place for the hearing within three weeks

after the complaint was filed. Id.

¶25 The Karow court took note of the statute's use of the

word "shall" and considered whether it was mandatory or

directory. Id. at 570. It ultimately set forth several factors

for use in evaluating whether a statute's use of the term

"shall" is mandatory or directory. The factors to be considered

are: the inclusion or omission of a "prohibition or a penalty"

in the statute, "the consequences resulting from one

construction or the other," "the nature of the statute," "the

evil to be remedied," and "the general object sought to be

accomplished" by the legislature. Id. at 572.

¶26 A review of the factors set forth in Karow indicate

that the ten-day time limit in this case is mandatory rather

than directory. Most significantly, the implied consent law

sets forth a penalty for noncompliance with the ten-day time

limit. Wisconsin Stat. § 343.305(10)(a) directs that revocation
13
 No. 2011AP2888

is to commence 30 days after the date of refusal if no hearing

is requested. The inclusion of a penalty for noncompliance

suggests that the term "shall" is mandatory.

¶27 Additionally, construing the word "shall" as directory

under these circumstances could have profound consequences for

the penalties that the legislature has set forth for improper

refusals. Wisconsin Stat. § 343.305(10) sets forth a penalty

structure for improper refusals that depends upon whether a

person requests a refusal hearing within ten days of service of

the Notice of Intent. Wis. Stat. § 343.305(10)(a). If

additional litigation over extension of the ten-day time limit

occurs, the other penalty requirements set forth in the implied

consent law that depend upon timely revocation may be thrown

into question.10

¶28 Significantly, when a person is penalized for his

first improper refusal, the court "shall revoke the person's

operating privilege for one year." Wis. Stat.

§ 343.305(10)(b)2. The revocation period is to begin 30 days
from the date of the refusal when no hearing was requested

within ten days of service of the Notice of Intent. Wis. Stat.
§ 343.305(10)(a). Yet, the implied consent law provides no

mechanism to reclaim the time lost to litigation if that penalty

10
For example, a person may be eligible for an occupational
license after the first 30 days of the revocation period. See
Wis. Stat. § 343.305(10)(b)2. If it is unclear when the
revocation period is to commence, then the time in which a
person may seek an occupational license is also uncertain. Id.

14
 No. 2011AP2888

is required because no timely request for a refusal hearing was

ultimately filed.

¶29 Therefore, the revocation period might not extend a

full year if more than 30 days is spent litigating whether there

was excusable neglect for not timely filing the request. The

statute requires that the revocation period must commence 30

days after refusal, but simultaneously requires that the

revocation period end one year after it is to commence. The

penalty structure could be subject to ambiguity in determining

how long a penalty must last.

¶30 To inject such ambiguity into an otherwise precise

penalty structure appears to be at odds with the nature of the

implied consent law and its legislative purposes. This court

has stated the legislative purposes of the implied consent law

in prior cases. It is meant to "obtain the blood-alcohol

content in order to obtain evidence to prosecute drunk drivers,"

which is "to be used to secure convictions" for operating a

motor vehicle while under the influence. State v. Brooks, 113

Wis. 2d 347, 355-56, 335 N.W.2d 354 (1983).

¶31 Thus, the "clear policy of the statute is to

facilitate the identification of drunken drivers and their

removal from the highways." State v. Neitzel, 95 Wis. 2d 191,

193, 289 N.W.2d 828 (1980). More pointedly, its purpose is "to

get drunk drivers off the road as expeditiously as possible and

with as little possible disruption of the court's calendar."

Brooks, 113 Wis. 2d at 359; see also State v. McMaster, 206 Wis.

2d 30, 46, 556 N.W.2d 673 (1996) (concluding that the purposes
15
 No. 2011AP2888

stated in Brooks "speak to the overarching goal of all drunk

driving laws in this state.").

¶32 Nothing enumerated in those legislative purposes is

consistent with the concept of extending the ten-day time limit

due to excusable neglect. The promise of prompt revocation

following an improper refusal is a powerful incentive to submit

to chemical testing, the result of which is likely to be key

evidence in any case where a driver is charged with operating a

motor vehicle while intoxicated. See Wis. Stat. § 346.63
(criminalizing the operation of a motor vehicle while

intoxicated and setting forth prohibited blood alcohol

concentrations). Eroding the precise penalty structure set

forth in the implied consent law and allowing for the delay of

refusal hearings diminishes any incentive to immediately consent

to a chemical test.

¶33 Extensions of the ten-day time limit also work to keep

suspected drunk drivers on the highways despite their refusal to

provide key evidence in their identification as drunk drivers.

A delayed refusal hearing likely entails a delay in any

revocation which might later occur, even assuming excusable

neglect exists in a given case. That delay is inconsistent with

the "clear policy" of the implied consent law, which is to

"facilitate the identification of drunk drivers and their

removal from the highways." Neitzel, 95 Wis. 2d at 193.

¶34 Furthermore, extensions of the ten-day time limit fail

to "get drunk drivers off the road as expeditiously as possible

and with as little possible disruption of the court's calendar."
16
 No. 2011AP2888

Brooks, 113 Wis. 2d at 359. Additional litigation to extend an

otherwise precise ten-day time limit is a source of disruption

to the court's calendar where no such disruption exists if the

ten-day time limit is construed as mandatory. Accordingly, the

Karow factors counsel that the use of the term "shall" in Wis.

Stat. § 343.305(10)(a) should be construed as mandatory, not

directory.11

¶35 Despite the legislative mandate that the required time

limit is ten days after service of the Notice of Intent, Brefka

maintains that the statutory scheme allows for its extension due

to excusable neglect because the rules of civil procedure

generally allow for relief from judgments or orders on that

ground.12 No provision authorizing an extension of the ten-day

time limit due to excusable neglect is found in the text of Wis.

Stat. § 343.305(9)(a)4. The text of Wis. Stat. § 343.305(10)(a)

likewise makes no provision for its extension on that ground.

11
The mandatory nature of the revocation that follows a
failure to request a refusal hearing is reinforced by this
court's analysis in State v. Piddington, 2001 WI 24, ¶35, 241
Wis. 2d 754, 623 N.W.2d 528, which characterized the revocation
as "automatic." In that case, this court noted that "an accused
driver could challenge automatic revocation of his or her
license for refusing to submit to a chemical test under Wis.
Stat. § 343.305(9)." Id.
12
Excusable neglect has been defined as "that neglect which
might have been the act of a reasonably prudent person under the
same circumstances," but which is not "synonymous with neglect,
carelessness or inattentiveness." Casper v. American Int'l
South Ins. Co., 2011 WI 81, ¶37, 336 Wis. 2d 267, 800 N.W.2d
880.

17
 No. 2011AP2888

¶36 Procedures that arguably allow for an extension on the

ground of excusable neglect are, however, found in three other

procedural statutes, Wis. Stat. §§ 800.115,13 801.15(2)(a),14 and

806.07.15 Because Wis. Stat. § 801.01(2) applies the rules of

13
Wisconsin Stat. § 800.115, a municipal court procedure
statute, states as follows, in relevant part:

(1) A defendant may within 6 months after the judgment
is entered move for relief from the judgment because
of mistake, inadvertence, surprise, or excusable
neglect.
14
Wisconsin Stat. § 801.15(2)(a), a general civil procedure
statute, states as follows, in relevant part:

(2)(a) When an act is required to be done at or within
a specified time, the court may order the period
enlarged but only on motion for cause shown and upon
just terms. The 90 day period under s. 801.02 may not
be enlarged. If the motion is made after the
expiration of the specified time, it shall not be
granted unless the court finds that the failure to act
was the result of excusable neglect. The order of
enlargement shall recite by its terms or by reference
to an affidavit in the record the grounds for granting
the motion.
15
Wisconsin Stat. § 806.07, a general civil procedure
statute, states as follows, in relevant part:

(1) On motion and upon such terms as are just, the
court, subject to subs. (2) and (3), may relieve a
party or legal representative from a judgment, order
or stipulation for the following reasons:

(a) Mistake, inadvertence, surprise, or excusable
neglect;

. . . .

(2) The motion shall be made within a reasonable time,
and, if based on sub. (1)(a) or (c), not more than one
year after the judgment was entered or the order or
stipulation was made. A motion based on sub. (1)(b)
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civil procedure to special proceedings and a refusal hearing is

a special proceeding, Brefka contends that the ten-day time

limit set forth in Wis. Stat. §§ 343.305(9)(a)4. and (10)(a) may

be extended by the operation of Wis. Stat. §§ 801.01(2),

800.115, 801.15(2)(a), and 806.07, relying on State v. Schoepp,

204 Wis. 2d 266, 554 N.W.2d 236 (Ct. App. 1996).

¶37 In Schoepp, the court of appeals applied Wis. Stat.

§ 801.01(2) to refusal hearings. Id. at 271. The defendant was

arrested for operating a motor vehicle while under the influence

of an intoxicant. Id. at 269. After he refused to submit to a

chemical test and was issued a notice of intent to revoke his

operating privilege, he filed a request for a refusal hearing.

Id. Before the refusal hearing was held, the defendant issued

subpoenas for the deposition of the arresting officer and other

law enforcement officials who were involved in his arrest and

the events leading up to his alleged refusal. Id.

¶38 Interpreting Wis. Stat. § 801.01(2), the Schoepp court

determined that because Wis. Stat. § 343.305 does not provide a

different procedure for a defendant to obtain discovery, the

civil procedure statutes relating to discovery applied to the

refusal hearing. Id. at 272. The "plain language" of Wis.

shall be made within the time provided in s. 805.16. A
motion under this section does not affect the finality
of a judgment or suspend its operation. This section
does not limit the power of a court to entertain an
independent action to relieve a party from judgment,
order, or proceeding, or to set aside a judgment for
fraud on the court.

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Stat. § 801.01(2) required that the general discovery rules

apply in refusal hearings "except where different procedure is

prescribed by statute or rule."16 Id.

¶39 Unlike Schoepp, here the legislature has set forth a

"different procedure" from the general rules of civil procedure.

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. The 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. at (10)(a).
¶40 Because the legislature has set forth a mandatory ten-

day time limit with precise penalties that rely on whether the

16
In 2006, the legislature amended Wis. Stat.
§ 343.305(9)(a) to limit discovery in refusal hearings. It
presently states as follows, in relevant part:

(9) Refusals; notice and court hearing. (a)

. . . .

Neither party is entitled to pretrial discovery in any
refusal hearing, except that, if the defendant moves
within 30 days after the initial appearance in person
or by an attorney and shows cause therefor, the court
may order that the defendant be allowed to inspect
documents, including lists of names and addresses of
witnesses, if available, and to test under s. 804.09,
under such conditions as the court prescribes, any
devices used by the plaintiff to determine whether a
violation has been committed.

See 2005 Wisconsin Act 332, § 4.

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time limit is met, the legislature has provided a "different

procedure" that governs pursuant to Wis. Stat. § 801.01(2).

Accordingly, Wis. Stat. §§ 800.115, 801.15(2)(a), and 806.07 do

not allow for the extension of the ten-day time limit due to

excusable neglect. Wis. Stat. § 801.01(2); see Schoepp, 204

Wis. 2d at 272.

¶41 Having determined that the implied consent law sets

forth a mandatory ten-day time limit to request a refusal

hearing that may not be extended due to excusable neglect, we

turn to evaluate the effect of noncompliance on the court's

competency to hear Brefka's request that it be extended.

Although the mere fact that a statutory time limit is mandatory

does not always result in a loss of competency, in this case the

mandatory ten-day time limit is "central to the statutory

scheme." Bollig, 222 Wis. 2d at 566; Mikrut, 273 Wis. 2d 76,
¶10. The central role that the ten-day time limit plays within

the statutory scheme is revealed when it is placed in the

context of the legislative purposes of the implied consent law.

¶42 The mandatory obligation on the circuit court to

revoke a person's operating privilege if he does not file a

request for a refusal hearing within ten days of service of the

Notice of Intent furthers the legislative purposes of the

implied consent law. As discussed above, it assists with

"obtain[ing] the blood-alcohol content in order to obtain

evidence to prosecute drunk drivers," which is then "to be used

to secure convictions" for operating while under the influence.

Brooks, 113 Wis. 2d at 355-56. Additionally, it "facilitate[s]
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the identification of drunken drivers and their removal from the

highways." State v. Neitzel, 95 Wis. 2d 191, 193, 289 N.W.2d

828 (1980). Finally, it "get[s] drunk drivers off the road as

expeditiously as possible and with as little possible disruption

of the court's calendar." Brooks, 113 Wis. 2d at 359.

¶43 On the other hand, extensions of the ten-day time

limit due to excusable neglect arguably change the precise

penalty structure set forth in the implied consent law, and

those changes appear contrary to its legislative purposes. See
supra, ¶¶31-35. Therefore, those legislative purposes cannot be

fulfilled without strictly following the statutory mandate that

a refusal hearing must be requested within ten days of service

of the Notice of Intent. Mikrut, 273 Wis. 2d 76, ¶11 (quoting

Bollig, 222 Wis. 2d at 568-69). Given the necessity of a

mandatory ten-day time limit to accomplish the legislative

purposes of the implied consent law under these circumstances,

we conclude that it is "central to the statutory scheme" and

accordingly, the circuit court lacks competency to hear Brefka's

request to extend it due to excusable neglect. Id., ¶10.

IV

¶44 In sum, we conclude that the circuit court is without

competency to hear Brefka's request to extend the ten-day time

limit set forth in Wis. Stat. §§ 343.305(9)(a)4. and (10)(a).

The ten-day time limit is a mandatory requirement that may not

be extended due to excusable neglect. Because the mandatory

ten-day time limit is central to the statutory scheme, the

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circuit court lacked competency to hear Brefka's request to

extend it. Accordingly, we affirm the court of appeals.

By the Court.—The decision of the court of appeals is

affirmed.

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