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  • WisBar News
    December 30, 2013

    Circuit Courts have Limited Discretion to Dismiss OWI-Related Refusal Charges

    Dec. 30, 2013 – The Wisconsin Supreme Court has clarified that circuit courts cannot dismiss a refusal charge – a charge that a defendant refused chemical testing for intoxicants – unless that defendant has pleaded guilty to the underlying OWI offense.

    In 2010, Brandon Bentdahl refused a chemical test to determine his blood alcohol concentration and was arrested on suspicion of drunk driving. Defendants have 10 days to request a hearing on refusal charges or the court can revoke driving privileges.

    Bentdahl did not request a refusal hearing within 10 days, and the court revoked his license. He pleaded not guilty to the OWI-related charges and was ultimately acquitted.

    The circuit court then dismissed the refusal charge to allow reinstatement of Bentdahl’s license after Bentdahl argued the refusal notice he received was deficient – the officer who wrote the refusal notice had poor penmanship and the hearing date was not clear.

    An appeals court reversed on the issue of improper notice but directed the circuit court, on remand, to use discretion in determining whether to dismiss the refusal charge. The state appealed this decision, arguing the circuit did not have discretion in this situation.

    In State v. Bentdahl, 2013 WI 106 (Dec. 27, 2013), a unanimous Wisconsin Supreme Court agreed that the circuit court could not dismiss the refusal charges in this case.

    The court noted that a 1983 case, State v. Brooks, allows circuit courts to dismiss refusal charges if the defendant has pleaded guilty to the underlying OWI offenses by the time of the refusal hearing. But the supreme court refused to extend that ruling.

    “Extending Brooks to allow circuit courts the discretionary authority to dismiss refusal charges in cases where a defendant has pleaded not guilty to the underlying OWI, PAC, or other related charge would contravene the purpose of Wis. Stat. § 343.305, Wisconsin’s implied consent statute,” wrote Justice Patrick Crooks.

    Under the implied consent statute, all Wisconsin drivers consent to chemical testing that may determine the presence of intoxicants if requested by law enforcement.

    The court explained that Brooks only applies when a defendant requests a refusal hearing within 10 days and pleads guilty to the underlying OWI-related charges.

    The state had asked the court to overrule Brooks, so that circuit courts would no longer have discretion to dismiss refusal charges at all. But the supreme court declined.

    The purpose of the implied consent statute – to gather evidence relating to the drunk driving charge – is served when defendants plead guilty, the court explained. But “the policy reasons for allowing circuit courts discretionary authority to dismiss refusal charges simply do not apply when a defendant chooses to plead not guilty.”

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