State v. Devron Michael Green, 2024AP1104, 3/5/25, District II (1-judge decision, ineligible for publication); case activity
In an interesting statutory construction appeal, COA concludes it was improper for circuit court to order an IID in conjunction with an OWI-1st citation when the accompanying refusal was dismissed and no findings were made under the refusal statute.
Green was cited for both an OWI and for refusing a blood test. (¶2). Green then pleaded guilty to the OWI and, as part of the plea, the State agreed to dismiss the pending refusal violation. (Id.). However, because Green had, in fact, refused, the State asked the court to impose an ignition interlock order. (¶3). It averred that an affidavit from the arresting officer provided a factual basis for that order. (Id.). The court agreed, and imposed a twelve-month order for an IID. (Id.).
COA reverses. § 343.301, which governs the installation of IIDs, requires the court to impose an IID order if the person “improperly refused to take a test under § 343.305.” (¶5). That section, however, creates a complex procedural mechanism for determining if a refusal is “improper” under which the person has a right to a hearing and the court is required to make specific findings. (¶9). Accordingly, applying well-settled principles of statutory construction, COA holds, at least under the facts of this case, that an IID cannot be entered when the refusal citation is dismissed and no refusal hearing has been held. (¶11). Accordingly, COA reverses that portion of the circuit court’s order. (¶12).
COA highlights two (possible) alternative avenues for entering an IID. First, a prior unpublished decision of COA suggests that an IID may be lawfully entered if the parties stipulate “to the three factual predicates for an improper refusal.” (¶12). Second, “a court may also make the required factual determinations even though it ultimately exercises its discretion to dismiss the improper refusal charge.” (Id.). However, because these scenarios are not presented to the court under this fact pattern, it does not resolve whether they are textually authorized.
