|
COURT OF
APPEALS DECISION DATED AND
RELEASED October
24, 1996 |
NOTICE |
|
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. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-1368
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
DONALD
H. MAIER,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Dane County: P. CHARLES JONES, Judge. Affirmed.
EICH,
C.J.[1] Donald Maier, appealing from an order
revoking his motor vehicle operating privileges under the implied-consent law
for his refusal to submit to a chemical test of his blood-alcohol content,
argues that our decision in State v. Babbitt, 188 Wis.2d 349, 525
N.W.2d 102 (Ct. App. 1994), requires police officers to have probable cause to
arrest before requesting such a test.
We
held in Babbitt that a driver's refusal to perform a requested
field sobriety test is not protected by the Fifth Amendment privilege against
self-incrimination and, therefore, may be used to establish probable cause to
arrest for driving while intoxicated. Id.
at 362, 525 N.W.2d at 106. Maier
suggests that some of the language in Babbitt suggests that a
motorist is compelled to cooperate—either by performing the test or
"providing the incriminating refusal to submit"—which has the effect
of turning a stop (which does not require probable cause) into an arrest (which
does).
The
question is answered by our recent decision in Dane County v. Campshure,
___ Wis.2d ___, 552 N.W.2d 876 (Ct. App. 1996), where we specifically rejected
the argument Maier makes here: that a lawful request by an officer constitutes
"compulsion" for Fifth Amendment purposes, thus transforming a lawful
investigatory stop into an arrest. Id.
at ___, 552 N.W.2d at 878.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.