The Wisconsin Supreme Court will use a 2010 Columbia County drunken driving case to decide how much discretion judges have in dealing with defendants who refuse to take blood tests when stopped on suspicion of drunken driving.

“Frankly, I was surprised the Supreme Court took it, because they don’t take very many,” said Assistant District Attorney Troy Cross, who prosecuted the case in Columbia County.

For Cross, the issue at stake is how effective the refusal charge and penalty are in assisting prosecution of drunk driving cases.

The case has been called “truly one of the strangest procedural (cases) I have (ever) had” by defense attorney Barry Cohen of Elkhart, who says that the case could radically alter a 30-year tradition of how the refusal charges are handled.

And at stake is the ability of a Sheboygan man to continue making a living as a commercial truck driver.

The penalty for refusing

Those arrested for drunken driving may refuse to take a blood test — a key piece of evidence for prosecutors — but those who do face an additional charge and penalties under Wisconsin law.

It isn’t whether the blood will be drawn; the blood will be taken. The issue has involved subsequent litigation, and police must now obtain a search warrant from a judge prior to any blood test, if someone refuses to take the test; but that law wasn’t in effect in 2010.

The refusal charge exists because not having the test makes prosecution of the cases more difficult.

The penalty for refusing the test can include revocation of a private driver’s license for up to two years, and the permanent loss via disqualification of a commercial driving license.

A judge can readily dismiss the refusal charge if any of three specific elements of the charge, are not met: if there isn’t enough evidence to believe the person was driving drunk; if the officer making the arrest did not read the “informing the accused” form properly to the person arrested; and if the person did not actually refuse to take the blood test.

Judges, following a 30-year-old ruling by the Wisconsin Supreme Court, also typically dismiss a refusal charge after a defendant is convicted on the drunken driving charge.

None of those reasons apply, however, in the case involved Sheboygan resident Brandon H. Bentdahl.

Bentdahl’s case

Bentdahl was arrested in Portage on Nov. 17, 2010, after Portage police said he did not stop at a stop sign. He told the officer at the time that he refused to cooperate with the blood test; the test was nevertheless taken.

Testimony by the officer at a jury trial indicated that Bentdahl did not struggle with officers during the blood draw, Cohen said. The only difference was the “no” that Bentdahl told the officer — and thus, Bentdahl was charged with refusing the test.

“You would not have known his answer was no,” Cohen said. “You would’ve assumed the answer was yes, because there was nothing about there being any problems or difficulty” in taking the test.... They (the officers) got their test and they used it exactly as they would have, had (Bentdahl) said yes instead of no.”

Bentdahl, at his arrest, was given a form explaining his right to a hearing on the refusal charge; it said that he only had 10 days to request the hearing and that if he did not request the hearing within the 10 days, he would be automatically convicted of the charge.

Bentdahl was formally charged in December 2010 with operating while intoxicated as a second offense within five years. He did not request a hearing to contest the refusal charge before the time ran out and was automatically convicted 10 days after his arrest; with this conviction, his driver’s license was revoked for two years and he was disqualified from ever holding a commercial driver’s license.

That was when Bentdahl approached Cohen on the matter. At first, Cohen did not believe he could help Bentdahl; the blood test indicated that Bentdahl’s blood-alcohol level was 0.23 percent, well above the legal level of 0.08 percent. A conviction seemed likely, and Bentdahl was already convicted of the refusal charge.

“But he said, ‘Look, this is my livelihood,’” Cohen said.

Represented by Cohen, Bentdahl in January 2011 contested the conviction on the refusal charge; Cohen argued that a hand-written date on the form Bentdahl was given by the officer at the time of his arrest was difficult to read, and that Bentdahl was confused about the deadline for requesting the hearing.

With the OWI charge still in question, Judge Alan White suspended the refusal conviction and its penalties; a year later, in January 2012, a jury found Bentdahl not guilty of the drunken driving charge.

White dismissed the refusal charge on the grounds that the form was difficult to read. Cross then appealed that dismissal.

Appealing a 30-year tradition

The Court of Appeals reversed White’s decision to dismiss the refusal charge based on the difficult-to-read form; it said White should again review whether or not to dismiss the charge, based on other reasons.

That decision by the Court of Appeals did not please Cross.

“They left it open that he could dismiss it on any grounds,” Cross said. “They left it open – too open.”

At Cross’s request, the Attorney General’s Office filed a petition for the Supreme Court to review the Court of Appeals decision. The Supreme Court accepted the petition in June and will hear arguments in the case in October.

The Attorney General’s Office is requesting that the Supreme Court limit the judges’ discretion in dismissing the refusal charges, so that it must be prosecuted in all cases.

That request, according to Cohen, is “a radical proposal” and contrary to the way “virtually every single (circuit and municipal) court in this state” has been treating the refusal charge for 30 years.

Cohen will present his arguments to the Supreme Court at the hearing on Oct. 15; Cross said he plans to watch — preferably in person, if he can.

A decision in the matter likely will be announced next year.

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