COURT OF APPEALS
DECISION
DATED AND FILED
December 2, 1999
Marilyn L. Graves
Clerk, Court of Appeals
of Wisconsin
NOTICE
This opinion is subject to
further editing. If published, the official version will appear in the bound
volume of the Official Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62, Stats.
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
In
the Matter of the Refusal of Brian J.
Knutson:
State
of Wisconsin,
Plaintiff-Respondent,
v.
Brian
J. Knutson,
Defendant-Appellant.
APPEAL from an order of the circuit court for Portage County: thomas t. flugaur, Judge. Affirmed.
¶1 EICH, J.[1] According to the appellant, Brian Knutson,
he is appealing from a “final judgment and sentence” in this
driving-while-intoxicated case. The
record, however, contains no such judgment.
We assume the appeal is from the circuit court’s order revoking
Knutson’s license for one year for his refusal to submit to blood-alcohol
testing under the implied consent law.
¶2 Knutson argues that the implied
consent law is unconstitutional because it is based on the concept of “coerced”
consent to a bodily search which, ipso facto, is involuntary, and thus
invalid. His argument proceeds as
follows: (1) under the Fourth Amendment, a warrantless search is per se
unreasonable; (2) an exception exists where the defendant voluntarily
consents to the search; (3) the implied consent law coerces arrestees into
consenting to a blood alcohol test because, if a test is unreasonably refused,
the person’s driving privileges will be temporarily revoked; (4) it
follows that the law is unconstitutional and we must reverse the revocation
order and dismiss the OWI prosecution.
¶3 We see no merit in the argument.
Knutson claims the implied consent law is unconstitutional because it “coerces”
consent to a search (via breath, blood or urine testing). But no consent was forced or coerced from
Knutson. He refused to take the
test. It may be that, had he consented,
and had the test resulted in chemical evidence of intoxication, he could raise
such an argument in a motion to suppress that evidence. But we are nowhere near that point in this
case. No consent was given, no tests
were administered, and there has yet to be a trial. In these circumstances, we do not see that Knutson has standing
to challenge the constitutionality of the implied consent law on grounds that
it coerces consent to blood-alcohol testing.
Not having been forced to consent, he has not suffered any “threatened
or actual injury” by the “coercion” he claims exists in the law and renders it
invalid. See State
v. Fisher, 211
Wis.2d 665,
668-69
n.2, 565
N.W.2d 565,
567 (Ct.
App. 1997)
(party has standing to raise constitutional issues only when his or her own
rights are affected – if the statute causes that party “injury in fact
…”). Knutson cannot suffer injury in
fact from a coerced consent to blood, breath or urine testing when he never
consented, and never underwent any such testing.
By the Court.—Order affirmed.
This
opinion will not be published. See Rule 809.23(1)(b)4, Stats.