Wisconsin Legislature: Physical restraint

See FISH AND GAME

HYGIENE, LABORATORY OF

Blood tests

State Laboratory of Hygiene may charge fees for tests not conducted for local units of government, but it is not required to do so. Sec. 36.25(11)(f), Stats. (Unpub.). 49-1981

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IMPLIED CONSENT LAW

See also AUTOMOBILES AND MOTOR VEHICLES; DRUNK DRIVING

Arrest

A driver of a motor vehicle cannot be asked to take a test to determine alcoholic intoxication pursuant to sec. 343.305(2)(am), Stats., unless there has been a lawful arrest. 67-314

Blood test

Under the Implied Consent Law, sec. 343.305, Stats., hospitals must comply with the request of a law enforcement officer to administer chemical tests including a blood test. This assumes that the driver has not withdrawn his or her consent to submit to that test. Drivers who are unconscious or otherwise incapable of withdrawing their consent are presumed not to have withdrawn it. The refusal of hospitals, physicians, nurses, and other health professionals authorized to withdraw blood to comply with such request constitutes the refusal to aid an officer within the meaning of sec. 946.40, Stats. In complying with the request, the professional incurs no civil or criminal liability, except for any negligence in the course of compliance. The person performing the chemical test must report the findings to the Department of Transportation, the law enforcement agency, and the individual involved. Failure to report

Blood test methods

Methods by which a law enforcement agency may provide two tests for blood alcohol content under sec. 343.305(1), Stats., discussed. The agency is not required to actually own or physically possess the testing devices. 63-119

Confidentiality requirements

The taking of a blood sample pursuant to the Wisconsin Implied Consent Law is not a procedure in connection with the performance of a drug or alcohol abuse prevention function nor is the acquired blood sample itself a patient record. The confidentiality requirements set out in 42 U.S.C. § 290dd-3 and 21 U.S.C. § 1175 have no application to such a procedure. 73-45

Municipal court

Section 343.305, Stats., as repealed and recreated by ch. 193, Laws of 1977, does not vest in municipal court the power to conduct hearings to determine the reasonableness of a refusal to submit to chemical tests to determine blood alcohol levels, since a municipal court has only those powers expressly conferred on it by statute, and such statute contains no express language conferring the hearing power above-mentioned on a municipal court. The power of a municipal court to preside over ordinance matters would not include such hearings, since local government lacks authority to enact the provisions of sec. 343.305, Stats., as an ordinance. 67-185

Physical restraint

A law enforcement officer may use physical restraint, subject to constitutional limitations, in order to draw a legally justified blood sample. Refusal by a health professional to comply with a law enforcement officer's authorized request to take a blood sample from a person whom the officer has legally restrained by force constitutes the refusal to aid an officer within the meaning of section 946.40, Stats. 74-123

Public Defenders

The State Public Defender, under sec. 977.05(4)(h), Stats., may, if he deems it appropriate to do so, provide legal services to an indigent at a so-called "refusal hearing" conducted pursuant to sec. 343.305(8)(b)1., and 2., Stats., where such indigent, prior to such hearing, has been charged with a criminal offense or offenses based on the same situation as that giving rise to the indigent's refusal to provide a sample of his/her breath, blood or urine pursuant to sec. 343.305(2)(b), Stats. 71-16

Refusal to aid an officer

Under the implied Consent Law, sec. 343.305, Stats., hospitals must comply with the request of a law enforcement officer to administer chemical tests including a blood test. This assumes that the driver has not withdrawn his or her consent to submit to that test. Drivers who are unconscious or otherwise incapable of withdrawing their consent are presumed not to have withdrawn it. The refusal of hospitals, physicians, nurses, and other health professionals authorized to withdraw blood to comply with such request constitutes the refusal to aid an officer within the meaning of sec. 946.40, Stats. In complying with the request, the professional incurs no civil or criminal liability, except for any negligence in the course of compliance. The person performing the chemical test must report the findings to the Department of Transportation, the law enforcement agency, and the individual involved. Failure to report

Refusal to submit to testing

An individual's fifth amendment privilege against self-incrimination need not be compromised by his or her testimony elicited at the evidentiary refusal hearing afforded to individuals who have requested the opportunity to litigate the lawfulness of their refusal to submit to chemical testing under the implied consent law. Consequently, absent any statutory guidelines, the scheduling of a refusal hearing is within the discretion and calendaring possibilities of the court to which it is assigned. 77-4

Section 343.305, Stats.

Section 343.305, Stats., the Implied Consent Law, discussed. 62-174

Warrant

A law enforcement officer may use physical restraint, subject to constitutional limitations, in order to draw a legally justified blood sample. Refusal by a health professional to comply with a law enforcement officer's authorized request to take a blood sample from a person whom the officer has legally restrained by force constitutes the refusal to aid an officer within the meaning of section 946.40, Stats. 74-123

INCOMPATIBILITY

See COMPATIBILITY

INDIAN GAMING REGULATORY ACT

Gambling activities discussed

Under article IV, section 24 of the Wisconsin Constitution, and chapter 565, Stats., the state lottery board may conduct any lottery game which complies with the ticket language in the constitution and chapter 565. The term "lottery" in the constitution and statutes does not include any other forms of betting, the playing or operation of gambling machines and devices and other forms of gambling defined in chapter 945. The Legislature can statutorily authorize other non-lottery gambling including casino-type games.

Under the Indian Gaming Regulatory Act, 25 U.S.C.A. §§ 2701-2721 (West Supp. 1989), gambling activities as defined and prohibited in chapter 945, other than lotteries and pari-mutuel on-track wagering, are not permitted by any person within or without Indian country in the State of Wisconsin. This prohibition includes all non-lottery gambling such as casino-type games, gambling machines and other devices. The Legislature can statutorily authorize non-lottery gambling within Indian country. 79-14

INDIANS