Preview:

COURT OF APPEALS
DECISION
NOTICE
DATED AND FILED
This opinion is subject to further editing. If
published, the official version will appear in the
bound volume of the Official Reports.
May 20, 1998
A party may file with the Supreme Court a
                                                                                        Marilyn L. Graves                                petition  to  review  an  adverse  decision  by  the
                                                                                        Clerk, Court of Appeals                          Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                                        of Wisconsin                                     STATS.
No.                                                                                     98-0156
STATE OF WISCONSIN                                                                      IN COURT OF APPEALS
                                                                                        DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
EDWARD J. THOMPSON,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Manitowoc County:
FRED H. HAZLEWOOD, Judge.  Affirmed.
BROWN, J.                                                                               Edward  J.  Thompson  appeals  from  an  order
holding that he unreasonably refused to submit to a chemical test required by the
implied consent law.   He argues that the officer in this case exceeded his statutory
duty of reading the Informing the Accused form to him by reading it again, and in
particular, asking after each paragraph during this second reading whether he
understood.   Thompson argues that this caused him to believe he did not have to




No. 98-0156
consent to the test until he actually understood the form.   We hold that while the
officer did exceed his duty, the information supplied was not misleading, and if
Thompson was confused, he was subjectively confused—a defense not recognized
in Wisconsin law.   We affirm.
The  facts  are  not  disputed.    The  officer  read  section  A  of  the
Informing the Accused form.   Thompson claimed not to understand.   The officer
read it to him again, and after each paragraph, asked whether he understood.
Thompson did not say whether he understood or not.    The officer then asked
whether Thompson would submit to the test, and Thompson did not answer.   The
officer then marked a refusal.   The trial court held that Thompson unreasonably
refused and Thompson appeals from the order.
In County of Ozaukee v. Quelle, 198 Wis.2d 269, 542 N.W.2d 196
(Ct. App. 1995), this court analyzed prior case law on the subject of what happens
when  an  officer  either  gives  more  information  about  informed  consent  to  an
accused than the legislature calls for or less than called for.   We discovered a
three-factor test emerging from the case law.    Distilled to its essence, the test
announced was as follows:
(1)  Has  the  law  enforcement  officer  not  met,  or
exceeded  his  duty  under                                                              § § 343.305(4)  and
343.305(4m)  to  provide  information  to  the
accused driver;
(2)  Is  the  lack  or  oversupply  of  information
misleading; and
(3)  Has  the  failure  to  properly  inform  the  driver
affected his or her ability to make the choice
about chemical testing?
Id. at 280, 542 N.W.2d at 200.
2




No. 98-0156
We  agree  with  Thompson  that  the  officer  exceeded  his  duty by
reciting the form again to Thompson after he claimed not to understand what had
been read to him.   But there is nothing wrong with an officer trying to help the
accused understand the form better.   There is only a problem if the information
given is misleading, and the accused’s ability to intelligently decide whether to
take the test is affected by the misleading information.
Here, nothing the officer said to Thompson was misleading.   All the
officer  did  was  repeat  the  statutory language  to  him  and  ask  him  after  each
paragraph whether he understood.   The belief that Thompson now says he has—
that  he  thought  he  did  not  have  to  decide  whether  to  take  the  test  until  he
understood it—is his own subjective conclusion.   In Quelle, we rejected the idea
that if the information given is not misleading from an objective standpoint, the
accused can evade the consequences of refusing by claiming nonetheless to be
confused.
Thompson asserts that his subjective confusion is distinguishable
from the subjective confusion claimed by Quelle.   In Quelle’s case, the officer
tried to explain the form in his own words so that she could better understand what
was expected of her.   Even though the officer’s personal colloquy was not contrary
to the law, Quelle claims she was confused by it all.   We rejected her defense.
Thompson contends that, here, the officer read the statutory language—he did not
try to explain the statutory language in his own words.   Thompson claims this
different set of facts makes all the difference.
We fail to understand how this is so.    If anything, the officer’s
actions in repeating the statutory language rather than trying to explain it in his
3




No. 98-0156
own words renders a less problematic result.   And, really, subjective confusion is
subjective confusion, no matter what the source.   We affirm the order.
By the Court.—Order affirmed.
                                                                                      This opinion will not be published in the official reports.   See RULE
809.23(1)                                                                             (b)4, STATS.
4

Download 13532.pdf

Wisconsin Law