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  • WisBar News
    June 27, 2013

    Excusable Neglect No Excuse in OWI Refusal Hearing Cases

    June 27, 2013 – An individual who refuses a blood alcohol test on suspicion of drunk driving has 10 days to request a “refusal hearing,” and excusable neglect is not an acceptable reason for an extension, the Wisconsin Supreme Court has clarified.

    In 2010, Richard Brefka was arrested on suspicion of drunk driving in Elm Grove, a Milwaukee suburb, and refused to take a blood alcohol test.

    After receiving the municipality’s notice of license revocation, he filed a request for a refusal hearing to contest the revocation. However, he did not file the request within the mandatory 10-day time period required under Wis. Stat. section 343.305.

    A circuit court effectively denied Brefka’s request to extend the filing period despite his argument that he missed the original deadline with a good excuse. Brefka appealed.

    In Village of Elm Grove v. Brefka, 2013 WI 54 (June 26, 2013), a unanimous supreme court ruled that state statutes “set forth a mandatory requirement to request a refusal hearing within the 10-day time limit that may not be extended due to excusable neglect.”

    The circuit court lacked competency to decide whether a refusal hearing extension was warranted, the supreme court explained, because the statute does not allow it.

    “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,” Justice Ann Walsh Bradley wrote.

    Allowing extensions would undercut the policy of implied consent law, which is to quickly identify drunk drivers and remove them from roadways.

    “Extensions of the ten-day time limit also work to keep suspected drunken drivers on the highways despite their refusal to provide key evidence in their identification as drunk drivers,” Justice Bradley wrote.


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