State v. Michael D. Urben, 2011AP982, District 1, 11/8/11
court of appeals decision (1-judge, not for publication); for Urben: Andrew Mishlove, Lauren Stuckert; case activity
Notwithstanding evidence that Urben suffered seizures before and after an automobile accident, his refusal to take BAC test wasn’t because of physical disability or disease unrelated to use of alcohol, controlled substances, etc., § 343.305(9)(a)5.c.
¶12 Under Wis. Stat. § 343.305(9)(a)5.c., “a mental condition cannot serve as a basis for properly refusing a chemical test. The mental disorder is relevant to the refusal issue, however, because if severe enough, that person is deemed not to have refused at all under [the predecessor to § 343.305(9)(a)5.c.]. In that situation, an officer may proceed to administer the test or tests because consent is presumed not to be withdrawn.” State v. Hagaman, 133 Wis. 2d 381, 383, 395 N.W.2d 617, 617–618 (Ct. App. 1986). Thus, if Urben could not have refused to submit to the test because of what he contends was his serious mental disconnect caused by what he argues was his postictal state, the officers here could have tested his blood-alcohol level whether he “consented” or “refused.” Id., 133 Wis. 2d at 383, 395 N.W.2d at 618. Stated another way, Hagaman does not excuse a refusal to submit to a test, it recognizes that the statute permits the test if the alleged drunk driver’s “severe” “mental disorder” makes the driver incapable of revoking his or her implied consent to the test.
¶13 The statute, however, is more forgiving than a reading of Hagaman might suppose because it provides that a person “shall not be considered to have refused the test if it is shown by a preponderance of evidence that the refusal was due to a physical inability to submit to the test due to a physical disability or disease unrelated to the use of alcohol.” (Emphasis added.) Thus, whether the officers could have given Urben a test, he could not be found to have “refused” the test (and thus endure the attendant legal consequences to a refusal) if “the refusal was due to a physical inability to submit to the test due to a physical disability or disease unrelated to the use of alcohol, controlled substances, controlled substance analogs or other drugs.” So, as phrased by his reply brief on this appeal, Urben contends that “his seizure due to alcohol withdrawal and subsequent postictal state created a physical disability that rendered him physically unable to submit to the chemical test.” (Emphasis added.) Leaving for another day whether an alcohol-caused postictal state is the type of disability encompassed by the statute, the problem with Urben’s argument is, as the circuit court recognized, wholly unsupported by the evidence. Indeed, neither of Urben’s expert witnesses testified that he was “physically unable” to either blow into a breath-test machine or give a sample of his blood. At most, they testified that Urben’s mental condition made him unaware of whether he should or should not submit to a test. Although it may very well be that in an unusual circumstance an alleged drunk driver is so mentally impaired by a physical condition unrelated to his or her drinking that consent or non-consent is impossible, this is not the case. Indeed, the video recording is clarion evidence that Urben was fully aware of his surroundings, and that he could not only understand and invoke his rights under Miranda, and tell the officer trainee his birth date, his specific street address, and the street where he was arrested, but also that he recognized that the officer trainee, to whom he referred by name, was “young” and “learning.” The circuit court’s finding that Urben’s refusal was not excused by the statute is affirmed.[5]
