City of Sun Prairie v. Michael H. Smith, 2010AP2607, District 4, 5/26/11
court of appeals decision (1-judge, not for publication); for Smith: Tracey A. Wood; case activity
¶9 Wisconsin Stat. § 343.305(5)(a) imposes the following obligations on law enforcement: “(1) to provide a primary test at no charge to the suspect; (2) to use reasonable diligence in offering and providing a second alternate test of its choice at no charge to the suspect; and (3) to afford the suspect a reasonable opportunity to obtain a third test, at the suspect’s expense.” Stary, 187 Wis. 2d at 270.[2] If a defendant requests an additional test and the officer fails to make a diligent effort to comply, the appropriate sanction is suppression of the results of the primary test. State v. Renard, 123 Wis. 2d 458, 461, 367 N.W.2d 237 (Ct. App. 1985). This request must clearly be a request for an additional test, and a request for a certain test instead of the primary test is insufficient. State v. Schmidt, 2004 WI App 235, ¶31, 277 Wis. 2d 561, 691 N.W.2d 379. While this request need not be made after the primary test is administered, the timing of the request may be relevant. Id., ¶30.
Although Smith made a number of requests for a blood test before taking the PBT, he did not renew the request afterward. Rather than making a request for an “additional” test, “Smith was trying to establish whether he could have a blood test instead of the City’s primary test,” ¶11.
¶12 It is not reasonable to construe Smith’s statement “so I get to do both” or “so I got to do both” as a request for a blood test in addition to a breath test. Rather, in the context of the conversation, the only reasonable inference is that Smith was indicating that he would rather have a blood test, but that he understood that in order to have a blood test, he would be required to “do both” of the tests. He did not indicate that he would like to have a blood test in addition to the breath test at any time, nor did he mention the blood test after performing the breath test despite ample opportunity to do so. We conclude as a matter of law that Smith did not request an additional test.
