(dissenting). An OWI charge and an unlawful refusal charge are distinct charges and should *360be treated as separate prosecutions. Significantly, the legislature has placed these violations in two sections of the statutes, sec. 346.63(1), Stats. (OWI in the “Rules of the Road”) and sec. 343.305 (refusal in the “Operators’ Licenses”). A violation of the implied consent statute occurs at the time the defendant refuses upon request to submit to the test. It does not occur at the time of driving while under the influence of intoxicants. The only connection between the two violations is that one must already be under arrest for OWI for an implied consent violation to occur.
By agreeing with the trial judge’s assumption that the only purpose of the implied consent law is to furnish evidence of intoxication, the majority jumps from an unwarranted assumption to a foregone conclusion. The closest this court has come to that rationale was in State v. Neitzel, 95 Wis. 2d 191, 203, 289 N.W.2d 828 (1980), where we said: “The purpose behind the implied consent law is to facilitate the gathering of evidence against drunk drivers.” This case is the first time this court has said the implied consent law has only that purpose. I believe the implied consent law has an additional purpose. It is also intended to enforce the conditions that are imposed on drivers afforded the privilege of operating a motor vehicle on Wisconsin roads.
A flaw in the majority’s reasoning is apparent when considering a defendant who is charged with OWI and unlawful refusal, pleads not guilty to the OWI charge and is subsequently found guilty of OWI at trial. According to the majority’s logic, it would be within the discretion of the trial judge to dismiss the refusal proceeding since chemical test evidence was unnecessary to secure the OWI conviction. In other words, the implied consent law had served no purpose under these facts. I think it entirely inappropriate to dismiss under such cir*361cumstances. Under the implied consent law, a defendant must cooperate at the time of arrest with authorities if requested to submit to a test or suffer the consequences.
I also disagree with the majority’s reasoning that conservation of limited judicial resources is a proper factor to consider when deciding if there has been an abuse of discretion in dismissing a refusal proceeding. I am well aware of the problem of crowded court calendars. However, promoting efficiency is no justification to dismiss a refusal proceeding. A judge has no discretion to dismiss a charge of a violation of the implied consent provision unless requested by the district attorney1 or if the evidence is insufficient.
I would affirm the court of appeals.
I am authorized to state that Justice ROLAND B. DAY joins in this dissenting opinion.
The discretion that rests with the district attorney is evidenced by see. 343.305(8) (b)2c, Stats. (1979-1980) which provides: “This section does not preclude the prosecution of the person for violation of s. 346.63(1) or a local ordinance in conformity therewith.”