COA: Driver misinformed he would be charged with first-offense OWI did not have right to refuse breath test; Ignition Interlock statute does not violate Dormant Commerce Clause when applied to out-of-state resident.

State v. Sharpe, 2021AP1543 & 2022AP307, 9/24/24, District III (one-judge decision; ineligible for publication); case activity here and here

COA determines defendant arrested for OWI did not meet burden to show that he was unable to make knowing and intelligent choice about submitting to breath test when officers misinformed him that he would be charged with a first-offense OWI.  COA rejects facial and as-applied challenge to IID statute based on Dormant Commerce Clause.

Samuel Sharpe was arrested for OWI in St. Croix County.  A deputy told Sharpe that he would be charged with OWI as a first offense.  The information was incorrect, and Sharpe was later charged with OWI as a third offense.  The deputy requested a breath test from Sharpe and read to him the Informing the Accused Form (ITAF), which is required before a person submits to a chemical test to determine the presence of alcohol or a controlled substance.  Sharpe refused and was issued a notice of intent to revoke his operating privilege based on his refusal to submit to a breath test.

A refusal hearing was held, where Sharpe testified that he refused the breath test because he was told by the deputy that he would be charged with OWI as a first offense, and he knew the penalties for a first offense were less severe.  He said he would have considered taking the test if the officers told him he would be charged with third-offense OWI or if they had not affirmatively told him that he would be charged with a first offense.  On cross-examination, Sharpe acknowledged that he also refused testing because he was “scared and confused.”  The circuit court concluded Sharpe’s refusal was improper and revoked his operating privilege for one year.  The circuit court also required Sharpe to install an ignition interlock device (IID) for one year.

Sharpe argued on appeal that the officers’ misinformation that he would be charged with a first-offense OWI affected his ability to make a choice about chemical testing.  The Court of Appeals reviewed the test set forth in Quelle to determine whether law enforcement adequately warned a person about the implied consent law: 1) whether the officers exceeded their duty to provide information; 2) whether the oversupply of information was misleading; and 3) whether the officers’ failure to properly inform the person affected his ability to choose whether to take a chemical test.  (¶ 19).  The State conceded that Sharpe satisfied the first two prongs of the Quelle test.

Sharpe bore the burden to prove by a preponderance of evidence that the erroneous additional information caused him to refuse to submit to chemical testing.  The Court affirmed the circuit court’s finding that Sharpe did not meet his burden.  The Court observed that Sharpe “made a strategic decision not to submit to a chemical breath test because he believed that doing so would deprive the State of evidence that it could use to obtain a conviction for OWI.”  (¶ 22).  But the Court considered Sharpe’s rationale “equally applicable regardless of whether Sharpe was charged with OWI as a first or third offense.  In fact, it would be reasonable to conclude that Sharpe’s motivation to refuse the test would have been greater if he had known that he would be charged with third-offense OWI, given his testimony that he knew the penalties for a third offense are greater than those for a first offense.”  (¶ 23).

Sharpe also presented a creative argument that the IID statute was facially unconstitutional under the dormant Commerce Clause and unconstitutional as applied to him as a Minnesota resident.  The Dormant Commerce Clause is primarily concerned with preventing states from engaging in economic protectionism – “regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.”  (¶ 31).  When a court imposes an IID restriction, the order begins on the day it was issued and extends “for a period of not less than one year after the date” the Wisconsin Department of Transportation issues” a driver’s license.  Wis. Stat. § 343.301(2m)(a).  But as a Minnesota resident, Sharpe is not eligible for a Wisconsin’s driver’s license.  He therefore argued that Wis. Stat. § 343.301 “impermissibly burdens out-of-state economic interests by discriminating against these out-of-state drivers in favor of drivers who are Wisconsin residents.”  (¶ 34).

The Court rejected Sharpe’s facial challenge to the IID statute because it “treats in-state and out-of-state drivers the same,” noting that the procedure for imposing an IID order does not distinguish between Wisconsin residents and those from another state.  (¶ 35).  The Court also remarked that an IID restriction imposed by a Wisconsin court on an out-of-state driver does not prohibit that person from obtaining or maintaining a driver’s license in another state or require the person to install an IID in order to drive in another state.  (¶ 36).  And the Court found that an IID order does not prevent a person from driving in Wisconsin, but only requires the person to install an IID device, which applies equally to in-state and out-of-state drivers.  (¶ 37).

Sharpe’s as-applied challenge also failed because, the Court found, Sharpe did not show that the IID statute “has had any additional effect on him as an out-of-state driver that it would not have had if he were licensed in Wisconsin.”  (¶ 38).  The Court acknowledged the IID statute’s provision to lift the IID requirement might apply differently to out-of-state residents, but found that the issue was not ripe with respect to Sharpe because he did not show that he installed an IID on his vehicle: “In other words, Sharpe has not shown that he has attempted to satisfy the IID order but has been unable to have the order removed after having an IID installed in his vehicle for the requisite time-period due to his out-of-state residence.”  (¶ 39).