343.305 Annotation When an officer exceeds the duty to give warnings prior to administering the test and gives erroneous information, it is the defendant's burden to prove by a preponderance of the evidence that the erroneous information caused the defendant's refusal. State v. Ludwigson, 212 Wis. 2d 871, 569 N.W.2d 762 (Ct. App. 1997), 97-0417.

343.305 Annotation Willingness to submit to a blood alcohol test, subsequent to an earlier refusal, does not cure the refusal. State v. Rydeski, 214 Wis. 2d 101, 571 N.W.2d 417 (Ct. App. 1997), 97-0169.

343.305 Annotation A verbal refusal to submit to a blood alcohol test is not required to find a refusal. Conduct may serve as the basis for finding a refusal. State v. Rydeski, 214 Wis. 2d 101, 571 N.W.2d 417 (Ct. App. 1997), 97-0169.

343.305 Annotation The chief of the DOT chemical test section is given authority to determine the procedures for evaluation of breath testing instruments. The consideration of modifications made to a new model of a previously tested machine and determination that the 2 models were analytically the same was sufficient testing. State v. Busch, 217 Wis. 2d 429, 576 N.W.2d 904 (1998), 96-2822.

343.305 Annotation When a defendant submitted to a blood test prior to being placed under arrest, the test was not made pursuant to this section. As such, there was no right to an alternative test under sub. (5). State v. Thurk, 224 Wis. 2d 662, 592 N.W.2d 1 (Ct. App. 1999), 98-0251.

343.305 Annotation There is no constitutional duty to inform suspected drunk drivers that the right to counsel does not attach to the implied consent statute. State v. Reitter, 227 Wis. 2d 213, 595 N.W.2d 646 (1999), 98-0915.

343.305 Annotation A warrantless blood draw is permissible when: 1) the blood is taken to obtain evidence of intoxication from a person lawfully arrested; 2) there is a clear indication that evidence of intoxication will be produced; 3) the method used is reasonable and performed in a reasonable manner; and 4) the arrestee presents no reasonable objection. State v. Thorstad, 2000 WI App 199, 238 Wis. 2d 666, 618 N.W.2d 240, 99-1765.

343.305 Annotation Although a notice of intent to revoke operating privileges under sub. (9) (a) did not contain "substantially all" of the statutorily required information, it provided meaningful notice and opportunity to be heard. As such the error was technical and required a finding of prejudice for dismissal of the action. State v. Gautschi, 2000 WI App 274, 240 Wis. 2d 83, 622 N.W.2d 24, 99-3065.

343.305 Annotation The notice under sub. (4) regarding the consequences for failing to submit to a blood alcohol does not violate due process. It does not mislead accused persons regarding taking or refusing the blood alcohol test. State v. Nord, 2001 WI App 48, 241 Wis. 2d 387, 625 N.W.2d 302, 00-1529.

343.305 Annotation In giving the warnings required under sub (4), an officer is required to utilize methods that, according to the circumstances at the time, are reasonable and will convey the warnings. Whether the accused driver comprehends the warnings is not part of the inquiry. A driver's hearing impairment must be taken into account and accommodated as is reasonably possible under the circumstances. State v. Piddington, 2001 WI 24, 241 Wis. 2d 754, 623 N.W.2d 528, 99-1250.

343.305 Annotation Drivers have no right to refuse a chemical test and need not consent to a test. When there is a refusal, the implied consent law does not preclude police from pursuing other constitutional avenues for collecting evidence. State v. Gibson, 2001 WI App 71, 242 Wis. 2d 267, 626 N.W.2d 73, 00-2399.

343.305 Annotation That a person agreed to a breath test but not a blood test, did not render police insistence on a blood test unreasonable. State v. Wodenjak, 247 Wis. 2d 554, 634 N.W.2d 867.

343.305 Annotation By consenting to the taking of a blood sample, the defendant also consented to the chemical analysis of the sample. These are not separate events for warrant requirement purposes. State v. VanLaarhoven, 2001 WI App 275, 248 Wis. 2d 881, 637 N.W.2d 411, 01-0222.

343.305 Annotation A warrantless blood draw by a physician in a jail setting may be unreasonable if it invites an unjustified element of personal risk of pain and infection. Absent evidence of those risks, a blood draw under those circumstances was reasonable. State v. Daggett, 2002 WI App 32, 250 Wis. 2d 112, 640 N.W.2d 546, 01-1417.

343.305 Annotation The circuits court's improper denial of a hearing requested under sub. (8) as the result of its miscalculation of time that resulted in a suspension without a hearing was not a fundamental error entitling the defendant to dismissal of the conviction against him when the court, on realizing the error, conducted a hearing and found that the defendant's refusal was improper and a license suspension was in order. State v. Carlson, 2002 WI App 44, 250 Wis. 2d 562, 641 N.W.2d 451, 01-1088.

343.305 Annotation Sub. (9) (a) does not provide the exclusive option when faced with an arrestee who refuses to submit to s chemical test. An officer may acknowledge the refusal, complete the sub. (9) (a) intent to revoke form, and then proceed with an involuntary blood test, using reasonable force to withdraw blood from a noncompliant suspect. The officer may necessarily inform a suspect that such a procedure is a possibility upon his or her refusal. State v. Marshall, 2002 WI App 73, 251 Wis. 2d 408, 642 N.W.2d 571, 01-1403.

343.305 Annotation When the arresting officer makes no specific threats beyond what arises under this section, the threat of lost driving privileges does not constitute a coercive measure that invalidates a defendant's consent for 4th amendment purposes. An arresting officer, by reading the informing the accused form, simply states the truth: refusal to submit to a chemical test will result in driving privileges being revoked. Officers are entitled to make true statements. Village of Little Chute v. Walitalo, 2002 WI App 211, 256 Wis. 2d 1032, 650 N.W.2d 891, 01-3060. See also, State v. Wintlend, 2002 WI App 314, 258 Wis. 2d 875, 655 N.W.2d 745, 02-0965.

343.305 Annotation Repeated requests for an attorney can amount to a refusal as long as the officer informs the driver that there is no right to an attorney at that point. State v. Baratka, 2002 WI App 288, 258 Wis. 2d 342, 654 N.W.2d 875, 02-0770.

343.305 Annotation If an officer explicitly assures or implicitly suggests that a custodial defendant has a right to consult counsel before deciding whether to submit to the test, the defendant relied on the offering, and the officer nonetheless marked a refusal despite the defendant's reliance, then the refusal was reasonably made. State v. Verkler, 2003 WI App 37, 260 Wis. 2d 391, 659 N.W.2d 137, 02-1545.

343.305 Annotation This section does not require that test results must be suppressed when there is a failure to reasonably convey the implied consent warnings to an apprehended driver. Under the circumstances of this case on remand the defendant was entitled to pursue an order prohibiting the automatic admissibility of the blood test result pursuant to s. 885.235, which if granted would require the state to establish the admissibility of the blood test, including establishing a foundation. State v. Begicevic, 2004 WI App 57, 270 Wis. 2d 675, 678 N.W.2d 293, 03-1223.

343.305 Annotation The approval of an instrument under sub. (6) (b) without promulgation of an administrative rule under ch. 227 did not constitute creation of an invalid administrative rule. County of Dane v. Winsand, 2004 WI App 86, 271 Wis. 2d 786, 679 N.W.2d 885, 03-2004.

343.305 Annotation Sub. (5) (a) does not impose a requirement that the request for an additional blood test be made after the first test is completed. State v. Schmidt, 2004 WI App 235, 277 Wis. 2d 561, 691 N.W.2d 379, 04-0904.

343.305 Annotation When police have informed a suspect of his or her right to an alternative test at agency expense, the suspect has ample opportunity to make a request, the suspect makes no request, and the suspect is released from custody and leaves the presence of custodial police, a subsequent request for an alternative test at agency expense is not a request within the meaning of sub. (5) (a). State v. Fahey, 2005 WI App 171, 285 Wis. 2d 679, 702 N.W.2d 400, 04-0102.

343.305 Annotation There is no right to counsel at the refusal hearing because such a hearing is civil, not criminal, in nature and therefore there is no constitutional right to effective assistance of counsel. State v. Krause, 2006 WI App 43, 289 Wis. 2d 573, 712 N.W.2d 67, 05-0472.

343.305 Annotation Giving Miranda warnings prior to reading Informing the Accused warnings under this section does not lead to a conclusion that the officer explicitly assured or implicitly suggested that a defendant has a right to consult counsel or to stand silent in the face of the implied consent warnings. Such a conclusion requires that the accused must be told he or she has the right to consult with counsel before deciding to submit to chemical testing and that the accused relied on the assurance or suggestion when responding to the request for a chemical test. State v. Kliss, 2007 WI App 13, 298 Wis. 2d 275, 728 N.W.2d 9, 06-0113.

343.305 Annotation There cannot be substantial compliance with sub. (4) when the law enforcement officer fails to give the defendant the statutorily required information about penalties. If the circuit court determines that the officer failed to inform the accused in compliance with the statute, the court shall order that no action be taken on the operating privilege on account of the person's refusal to take the test in question. This does not apply misstatements of information beyond the required information, which are governed by Ludwigson. Washburn County v. Smith, 2008 WI 23, 308 Wis. 2d 65, 746 N.W.2d 243, 06-3163.

343.305 Annotation When law enforcement invokes this section to obtain a primary test for intoxication, it must: 1) provide the primary test of its choice at its own expense; 2) provide an opportunity for a second test of its choice at agency expense; and 3) if the second test is refused by the suspect in favor of one at his or her own expense, it must provide a reasonable opportunity for a test of the suspect's choice at the suspect's expense. State v. Batt, 2010 WI App 155, 330 Wis. 2d 159, 793 N.W.2d 104, 09-3069.

343.305 Annotation Sub. (9) (a) 5. a. does not limit the circuit court to considering whether, based on all the evidence gathered up until the moment of the arrest, the officer had probable cause to believe the defendant was operating while under the influence of an intoxicant. A defendant may also contest whether he or she was lawfully placed under arrest. As part of this inquiry, the circuit court may entertain an argument that the arrest was unlawful because the traffic stop that preceded it was not justified by either probable cause or reasonable suspicion. State v. Anagnos, 2012 WI 64, 341 Wis. 2d 576, 815 N.W.2d 675, 10-1812.

343.305 Annotation 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 in which a defendant has pleaded not guilty to the underlying OWI, PAC, or other related charge would contravene the purpose of this section. State v. Bentdahl, 2013 WI 106, 351 Wis. 2d 739, 840 N.W.2d 704, 12-1426.