COURT OF APPEALS
DATED AND FILED
April 7, 2011
A. John Voelker
Acting Clerk of Court of Appeals
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 Wis. Stat. § 808.10 and Rule 809.62.
IN COURT OF APPEALS
Joe R. Hechimovich,
from a judgment and an order of the circuit court for
¶1 BLANCHARD, J. Following his conviction for operating while intoxicated, second offense, Joe Hechimovich appeals the circuit court’s order denying his motion to suppress the results of his blood alcohol test, on the grounds that police violated Wis. Stat. § 343.305(5)(a), and the judgment of conviction. Hechimovich contends that he was entitled to suppression of the results of the blood test because he was not given a breathalyzer test after the blood draw, even though he asked the arresting deputy for a breath test as an additional chemical test.
¶2 It is undisputed that (1) the deputy asked Hechimovich to tell the deputy after the blood draw at the hospital if Hechimovich still wanted to travel to the jail to submit to the breath test, (2) the deputy gave Hechimovich ample opportunity at the hospital, after the blood test, to make a renewed request for a breath test, and (3) Hechimovich did not make that renewed request. Under these circumstances, the deputy was entitled to conclude that Hechimovich had decided against the breath test by the time the blood draw was completed, and the deputy did not have an affirmative legal duty to question Hechimovich about his implied choice not to travel from the hospital to the jail for the additional test following his release. Accordingly, the circuit court is affirmed.
¶3 The sole witness at the suppression hearing was the sheriff’s deputy, although the court also had the benefit of listening to an audio recording of discussion between the deputy and Hechimovich following the traffic stop that led to Hechimovich’s arrest.
¶4 The deputy arrested Hechimovich on a charge of operating while intoxicated. The deputy read to Hechimovich the “Informing the Accused” information, and asked him if he would submit to an evidentiary chemical test of his blood. Hechimovich responded yes, but later asked if he could have a breath test instead of blood test.
¶5 The deputy explained to Hechimovich, as he testified at the suppression hearing, that “we do have a primary test of blood in Dodge County, and if he wanted a breath test after we are done at the hospital, at that point if he wished to do so he could request that and I would take him to the jail to do that.” Hechimovich accepted the offer of a blood test at 10:22 p.m.
¶6 The deputy took Hechimovich to a hospital, where the blood draw occurred at about 11:20 p.m. Ten minutes later, the deputy released Hechimovich to a responsible party, Nicole Fleming, whom the deputy believed to be Hechimovich’s fiancé.
¶7 During the approximately ten minutes between completion of the blood draw and Hechimovich’s release, the deputy and Hechimovich “went over the OWI question and answer form” in the hospital emergency room. “I explained the citations. I explained what I would do with the blood and that he would receive a copy of the results. I explained what would happen if the results were over a certain level, and we just discussed the process.” In the presence of Hechimovich, the deputy also went over a “responsible party” form with Fleming.
¶8 Throughout this ten minute period, neither Hechimovich nor the deputy made reference to the breath test that Hechimovich had requested earlier. Hechimovich did not bring the topic up during the drive to the hospital or while at the hospital at any time. The deputy did not follow up on this topic, either, concluding that when Hechimovich did not bring it up following his blood test, he had decided against it.
¶9 Hechimovich told the deputy that he had previously submitted
to a breath test in
¶10 The court’s factual findings following the suppression hearing
included the following, crediting the testimony of the deputy. The deputy told Hechimovich, after he
requested a breath test, “when we are done with the blood test if you are
still—still interested in that breath test give me the word, and I’ll take you
over, and we’ll go to the Sheriff’s Department and do a breath test.” Hechimovich does not assert that this finding
was clearly erroneous, and so it is accepted as proven for purposes of this
appeal. See Wis. Stat. § 805.17(2);
v. Riedel, 159
¶11 Whether an officer complies with his or her obligations under
the implied consent law, Wis. Stat.
§ 343.305, is a question of law that is reviewed de novo. State v. Baratka, 2002 WI App 288,
¶7, 258 Wis. 2d 342, 654 N.W.2d 875 (“[a]pplication of the implied consent
statute to an undisputed set of facts is a question of law” that this court reviews
independently). This is a fact-intensive
evaluation. See State v. Stary, 187
¶12 Both parties demonstrate sound familiarity with, and little disagreement
about, the meanings of and the relationships among relevant provisions in the
implied consent law. Instead, what is at
issue in this appeal is the application of judicial interpretations of the
statutory language to this case. Moreover,
the ordinary operation of the implied consent law has been extensively and repeatedly
described by the courts, including in contexts that resemble this case in major
respects. See, e.g., State
v. Schmidt, 2004 WI App 235, 277
¶13 Hechimovich contends that the deputy did not make a diligent
effort to comply with the deputy’s statutory obligation to follow up, after
Hechimovich’s initial request for a breath test, to see if he still wanted that
additional chemical test after completing the primary chemical test. More specifically, Hechimovich argues that the
circuit court erred in failing to apply the following two legal
propositions: (1) there is no
requirement in the implied consent law that an arrestee must make more than one request for an additional
chemical test, and (2) an arrestee is not required to make a request only after submitting to a primary test, but may
make a binding request before the primary test.
Both of these legal propositions are correct; depending on all facts, one
request may be sufficient, and that request may be made before the primary test
is completed. See Schmidt, 277
¶14 However, two uncontested facts, when considered together, render these two legal propositions irrelevant.
¶15 The first uncontested fact is that when Hechimovich requested the additional test, the deputy suggested to Hechimovich that if he was still interested in the additional test, after taking the primary test, Hechimovich should “give me the word,” and the deputy would take him to the jail for the breath test. There is no suggestion in the record, and the circuit court did not find, that Hechimovich disagreed with or was confused by this approach. To the contrary, the record suggests that he went along with it.
¶16 The second significant uncontested fact is that the deputy made himself available to Hechimovich after the primary test, communicating directly and extensively with Hechimovich. The record reflects sustained dialog between Hechimovich and the deputy at the hospital after the blood draw, discussion that also included Fleming in the presence of Hechimovich. This provided Hechimovich with a full opportunity to follow up on an additional test, which is what the deputy had proposed that he do if he remained interested in an additional test.
¶17 One additional relevant fact, while not a major consideration, is that the deputy was aware that Hechimovich was already familiar with the process of giving a sample of his breath, having done so at least once before. Having been in this situation before, it was at least slightly more likely that Hechimovich was deciding to forego a test that he was familiar with.
¶18 For these reasons, the deputy acted with reasonable diligence in response to the initial request for an additional test, based on his assumption that Hechimovich’s post-blood draw silence on the topic stood for a decision against a trip to the jail for the breath test. On these facts, there was no “burden on the deputy to clarify,” as Hechimovich argues.
¶19 Under the approach proposed by Hechimovich, an officer could never rely on a clear, consented agreement with an arrestee that the arrestee should tell the officer after the primary test whether the defendant wanted an additional test. The implied consent law does not appear to require such micro-management of the ways in which police may communicate with arrestees in attempting to accomplish the goals of the law, and Hechimovich does not cite authority supporting such a rule.
¶20 Hechimovich asserts that Schmidt and Renard undermine this conclusion, but neither opinion sufficiently supports his position.
¶21 As referenced above, Hechimovich cites Schmidt primarily for the
proposition that a request for an additional test may be adequate if made before the primary test is completed. See Schmidt, 277
¶22 Hechimovich cites Renard primarily for the proposition
that, once an arrestee requests an additional test and submits to the primary
test, this requires “a diligent effort by the officer to comply with the
demand” for the additional test. See Renard,
¶23 In Renard, the officer who arrested Renard at a hospital “persuaded
Renard to consent to the blood test because the blood sample could be drawn at
¶24 In the case at bar, if the deputy had left the hospital without giving Hechimovich a reasonable opportunity to say that he wanted the additional test, then the deputy’s conduct would have amounted to less than a diligent effort, under the logic of Renard. This would have been contrary to the understanding between the deputy and Hechimovich that Hechimovich could take the deputy up on the offer of the additional test after the blood draw.
¶25 However, the deputy in this case communicated extensively with Hechimovich after the blood draw, at which time Hechimovich failed to renew the request, as the deputy had made clear he expected to hear if Hechimovich still wanted the breath test. Under the prior agreement with the deputy, there was simply no request for the deputy to accommodate after the blood draw. From the deputy’s point of view, as the record reflects it, Hechimovich’s apparent decision to take a pass on his right to travel from the hospital to the jail for an additional test would not have been a peculiar or surprising decision for Hechimovich to have made.
¶26 Further supporting the circuit court’s legal conclusion, there is no basis to conclude from the record of the suppression hearing or the factual findings of the court that the deputy sought to frustrate Hechimovich’s request for an additional test, as for example by suggesting in their initial conversation on the topic that Hechimovich had to do more than simply renew his request after the blood draw in order to obtain it, or by suggesting that his agency was in some manner unprepared to administer a breath test.
¶27 Hechimovich’s arguments to the circuit court and to this court are not insubstantial, and small facts could make a difference in such circumstances. For instance, “diligent effort” could not include bullying or intentionally confusing an arrestee on this topic. Thus, an officer could fall short of the officer’s obligation where there is less than clear agreement between an arrestee and an officer that the arrestee should renew the request if still interested after the primary test. It might be deficient if an officer were to instruct an arrestee—over an arrestee’s objection, or in another circumstance that failed to achieve a consensual understanding—that the arrestee’s request for an additional test would be operative only if the arrestee renewed the request later. In such cases, depending on all relevant facts, treating an arrestee’s post-primary test silence as a decision against the additional test might fall short of the “diligent effort” standard.
¶28 However, the record in this case does not reflect game playing or obfuscation. It is uncontested that the deputy explicitly and straightforwardly proposed a let-me-know approach, and that Hechimovich went along with that approach, without objecting or expressing confusion.
¶29 For these reasons, the circuit court’s findings are not clearly erroneous and its legal conclusion is correct. Accordingly, the order denying suppression and the resulting judgment of conviction are affirmed.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
 This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(c) (2009-10). All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.