State v. Roman C. Ozimek, 2021AP452, District 3, 11/22/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Ozimek challenges the revocation of his driving privileges for refusing a blood draw after he was arrested for OWI. The court of appeals rejects his claim that the circuit court should have considered evidence that the officer misinformed Ozimek of his “constitutional right” to obtain his own chemical testing without having to first consent to the officer’s request for chemical testing.

Walvort, the arresting officer read the Informing the Accused form verbatim to Ozimek. Then, immediately after he said he would not consent to chemical testing, Ozimek asked whether there would be further testing. Walvort responded that Ozimek “would have to consent to the initial test to be allowed those other tests.”  Ozimek reaffirmed his refusal. (¶5).

At his subsequent refusal hearing under § 343.305(9)(a), Ozimek focused on the issue under § 343.305(1)(a)5.b. (¶12). He argues the officer didn’t comply with § 343.305(4) because: 1) the officer provided information in addition to the standard Informing the Accused form; 2) the oversupply of information was was misleading or erroneous; and 3) the officer’s failure to properly inform the driver affected the driver’s ability to make the choice about chemical testing. Washburn County v. Smith, 2008 WI 23, ¶72, 308 Wis. 2d 65, 746 N.W.2d 243 (establishing three-prong test for cases where officer provided information in excess of that required by § 343.305(4)).

There’s no dispute about the first prong, but the state argues the additional information wasn’t misleading because, under § 343.305(4), the option of taking further tests is predicated upon taking the requested tests, and because Ozimek didn’t show the extra information affected his decision to refuse because he did so even before the officer provided the excess information. (¶16).

Ozimek didn’t file a reply brief, so he’s deemed to have conceded the state’s arguments.  (¶¶2, 17). But in addition, the court of appeals holds the state is right:

¶18     …. As relevant here, Wis. Stat. § 343.305(4) requires that law enforcement inform the driver:

If you take all the requested tests, you may choose to take further tests. You may take the alternative test that this law enforcement agency provides free of charge. You also may have a test conducted by a qualified person of your choice at your expense. You, however, will have to make your own arrangements for that test.

(Emphasis added.) Thus, the plain language of § 343.305(4) conditions a driver’s right to take further tests—including the driver’s own tests—on the driver first submitting to the requested tests. See also [State v.] Schmidt, [2004 WI App 235,] 277 Wis. 2d 561, ¶11[, 691 N.W.2d 379] (“[I]t is clear from [§ 343.305(4) and (5)] that the accused does not have a right to choose a test instead of the one the officer asks him or her to take; rather, the ‘alternative test’ is in addition to that test.”). Therefore, by telling Ozimek that he could not obtain any other chemical testing unless he first consented to the blood draw, Officer Walvort did not provide any misleading or erroneous information under § 343.305(4). See [State v.] Ludwigson, 212 Wis. 2d [871,] 875[, 569 N.W.2d 762 (Ct. App. 1997)].

¶19     Likewise, Ozimek has not shown that the alleged misinformation affected his ability to make his choice about agreeing to the requested chemical testing. See id. To prevail on this third prong, the driver must produce “sufficient evidence to make a prima facie showing of a causal connection between the misleading statements and the refusal to submit to chemical testing.” See Smith, 308 Wis. 2d 65, ¶68. ….

¶20     Here, Ozimek did not produce any evidence showing that he would have taken the requested chemical testing had he been informed—as he contends he should have been—that he could obtain his own chemical testing without consenting to Officer Walvort’s requested test. Ozimek did not testify at the refusal hearing. Nor did Walvort’s testimony suggest that Ozimek refused because of the alleged misinformation. It is also undisputed that Ozimek unequivocally refused the requested chemical testing before receiving the alleged misinformation, which strongly suggests that the alleged misinformation played no role in Ozimek’s decision. If anything, Walvort’s alleged misinformation would have created a greater incentive for Ozimek to consent to the requested test because Ozimek would have needed to consent if he truly wanted to obtain his own chemical testing. Nevertheless, Ozimek never consented to the requested chemical testing. In short, the record contains no evidence suggesting a causal connection between the alleged misinformation and Ozimek’s refusal.

As for Ozimek’s claim that the officer’s advice interfered with his “constitutional right” to obtain his own chemical testing, the state argues he has no such right. Again, Ozimek didn’t file a reply brief, so he’s conceded the state’s argument (¶¶2, 13); he also “fails to identify a single case establishing that a defendant has an unfettered right to obtain evidence, especially in a context similar to the implied consent one here” as well as failing to prove that it affected his decision to refuse the test Walvort requested (¶21), which is the issue presented in the context of the refusal proceeding.