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COURT OF APPEALS
DECISION
DATED AND RELEASED
NOTICE
December 19, 1995
A party may file with the Supreme Court                                             This opinion is subject to further editing.
a petition to review an adverse decision                                            If  published,  the  official  version  will
by the Court of Appeals.  See § 808.10 and                                          appear  in  the  bound  volume  of  the
RULE 809.62, STATS.                                                                 Official Reports.
No. 95-2213
STATE OF WISCONSIN                                                                  IN COURT OF APPEALS
DISTRICT III
CITY OF STURGEON BAY,
Plaintiff-Respondent,
v.
GREGORY M. EBEL,
Defendant-Appellant.
APPEAL from a judgment of the circuit court for Door County:
JOHN D. KOEHN, Judge.  Affirmed.
MYSE, J.                                                                            Gregory M. Ebel appeals a judgment of conviction
for  operating  a  motor  vehicle  while  intoxicated  contrary  to  a  municipal
ordinance adopting § 346.63(1)(a), STATS.  Ebel claims that his conviction should
be reversed because the informing the accused form read to him was defective.
Because this court concludes that Ebel was not prejudiced by the defect in the
warning given to him, the judgment of conviction is affirmed.
The relevant facts are undisputed.   At approximately 2:20 a.m.,
officer  Wendy  Allen  observed  Ebel  operating  his  motor  vehicle  over  the
centerline and weaving within his lane of traffic.   After stopping Ebel, Allen
noticed that Ebel's eyes were bloodshot, his speech was slurred, and an odor of




No.   95-2213
intoxicants emitted from the vehicle.    Allen subsequently conducted several
field sobriety tests and concluded that Ebel failed to perform them properly.
Based upon her observations, Allen placed Ebel under arrest for operating a
motor vehicle while under the influence of an intoxicant.   Allen then informed
Ebel of his rights under Wisconsin's Implied Consent Law and requested that
Ebel submit to an evidentiary chemical test of his breath.    See  §  343.305(4),
STATS.   Ebel submitted to the test which showed a result of .16 grams of alcohol
in 210 liters of breath.
In  a  pretrial  motion,  Ebel  moved  to  deprive  the  City  of  the
statutory  presumption  of  admissibility  of  the  chemical  test  because  the
informing the accused form read to him was defective.   The trial court denied
the motion.   It is undisputed that the warning given by the officer was correct
and conformed to the requirements of § 343.305(4), except that the time period
for determining whether he had two or more prior suspensions, revocations or
convictions  for  penalty  enhancement  purposes  was  misstated.    The  actual
advice given by the officer was that a motor vehicle Ebel owned could be
equipped with an ignition interlock device, immobilized, seized or forfeited if
he had two or more prior convictions, suspensions or revocations within a five-
year period that would be counted under  §  343.307(1), STATS.    The correct
advice is that if the driver has two or more prior suspensions, revocations or
convictions within a ten-year period that would be counted under § 343.307(1),
STATS., a motor vehicle owned by the driver may be equipped with an ignition
interlock device, immobilized, seized or forfeited.   The parties agree that this
was a first offense and the advice concerning consequences after two or more
prior suspensions, revocations or convictions was not applicable to Ebel.   Ebel
was convicted of the offense after a jury trial and now appeals.
This case presents an undisputed set of facts to which this court
must apply a statute, thereby presenting a question of law to be reviewed de
novo.   State v. Zimmerman, 185 Wis.2d 549, 554, 518 N.W.2d 303, 304 (Ct. App.
1994).
There is no question that there was an error in the advice given
Ebel at the time he was asked to submit to the chemical test.   The only issue
raised is the consequence of the erroneous advice.   While we acknowledge the
mandatory nature of the requirement that the advice be given, the consequences
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No.   95-2213
of  failing  to  follow  exactly  the  statutory  directive  is  a  matter  for  judicial
determination.
In State v. Piskula, 168 Wis.2d 135, 140, 483 N.W.2d 250, 252 (Ct.
App.  1992),  we  concluded  that  errors  in  informing  the  accused  that  were
technical in nature and did not prejudice the accused would not result in a
reversal.   The reasonable objective of the implied consent statute is to inform
drivers of their rights and penalties for either refusing to submit to a chemical
test  or  submitting  to  a  chemical  test  that  results  in  a  prohibited  alcohol
concentration.   Id. at 140-41, 483 N.W.2d at 252.   In Piskula, we concluded that
substantial compliance with the implied consent statute will suffice if it is actual
compliance with every reasonable objective of the statute.   Id.     Informing a
drunk driving suspect of all the rights and penalties relating to him or her is
"actual compliance with respect to the substance essential to every reasonable
objective of the statute."   Id. at 141, 483 N.W.2d at 252.   In Village of Oregon v.
Bryant, 188 Wis.2d 680, 687 n.5, 524 N.W.2d 635, 638 n.5 (1994), our supreme
court concluded that Piskula was and is correct.
The holding in Piskula is applicable to this case even though the
factual predicate is different.   In this case the error in the advice concerned the
time  period  for  determining  whether  a  defendant  had  two  or  more  prior
suspensions,  revocations  or  convictions  for  authorizing  action  to  be  taken
against the vehicle.  The error did not prejudice Ebel because it neither related to
nor affected Ebel's rights.   Ebel was not concerned with whether these penalties
occurred after two convictions within a five-year period or a ten-year period
because he had no prior convictions.   Because Ebel was actually informed of all
rights and penalties relevant to him, he was not prejudiced by the error.   The
error does not require reversal of the conviction because the warning given was
in substantial compliance with the statutory requirements.
Ebel  argues  that  a  contrary  result  is  required  by  State  v.
Geraldson, 176 Wis.2d 487, 500 N.W.2d 415 (Ct. App. 1993).  This court does not
agree.   In Geraldson, the driver possessed a commercial operator's license even
though he was not at the time operating a commercial vehicle.   The officer did
not  advise  Geraldson  of  additional  warnings  applicable  to  commercial
operators.    The driver's rights could have been affected because of possible
consequences applying to his commercial license.   He was entitled to know this
information which could have been both relevant and significant to him.   The
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No.   95-2213
failure to properly advise him was therefore prejudicial to the defendant and
renders the consent imperfect.
Ebel further argues that the presumption of admissibility provided
by  §  343.305(5)(d), STATS., does not apply and the test result could not be
admissible at trial because one who refuses should not be afforded greater
protection than one who submits to a defective request for a breath sample.
While there is much wrong with this analysis, it is sufficient to say that when
the defect is not prejudicial to the defendant it is not a basis upon which the
admissibility of the test result will be changed.
Based on the foregoing, this court concludes that the defendant's
judgment of  conviction  should be  sustained notwithstanding the failure  to
strictly comply with the statutory requirement regarding informing the accused.
By the Court.—Judgment affirmed.
This opinion will not be published.  RULE 809.23(1)(b)4, STATS.
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