State v. Piddington

Wisconsin, State of Plaintiff-Appellant,

v. Defendant-Respondent- Michael S. Piddington, Petitioner.

Supreme Court 12, argument No. 99-1250-CR. Oral December 2000. Decided March 2001 WI 24 (Also 528.) reported in 623 N.W.2d defendant-respondent-petitioner For the there by Tjader were briefs Michele A. and Kalal & Associ- argument by ates, Madison,and oral Tjader. Michele A. plaintiff-appellant argued For the the cause was attorney general, assistant Ptacek, Kathleen M. Doyle, attorney with whom on the brief was James E. general. by Keith A. Find-

An amicus curiae brief was filed University ley, Vigne Michele La and the Wisconsin Remington School, Law on of the Frank J. behalf Center.

¶ Pid- CROOKS, 1. PATRICK J. Michael N. dington published appeals seeks review of a court of court order had decision that reversed circuit which suppressed Piddington's the test results of blood for Piddington, App 44, alcohol. State v. 2000 WI 233 Wis. Piddington tested after he 2d 607 N.W.2d 303. was operating a motor vehicle under was arrested for while (OWI). the influence The circuit court intoxicant Piddington, pro- had concluded that foundly who has been Sign birth, deaf since needed an American fully Language interpreter understand the field sobriety tests and the information that he was to be given pursuant law, Wisconsin's 343.305(4X1995-96).1 appeals § Wis. Stat. The court of concluding reversed, that the law enforcement officer only "orally Piddington required need inform" Piddington, App information.2 WI at We 1"Implied principle consent" refers to the that a driver "is given deemed chemical to have consent" to tests for alcohol as a operating condition of a motor vehicle in Wisconsin. Wis. Stat. 343.305(2)(1995-96). §

All references to the Statutes are Wisconsin 1995-96 version unless otherwise noted. 343.305(4) The version of Wis. Stat. 1995-96 ver —the sion —that was in effect at the time that arrested reads as follows: (4) specimen Information. At the time a chemical test is (3) (a) (am),

requested person orally under the sub. or shall be by informed the law enforcement officerthat: (a) (2); He or she is deemed to have consented to tests under sub. disagree appeals' approach regarding with the court of the consent contained in 343.305(4).3 343.305(4) § requires § We hold that the arresting facing him officer under the circumstances or her at the time of the arrest, to utilize those methods reasonably convey which are reasonable, and would warnings. determining the In whether arresting the officer has used reasonable methods reasonably convey necessary which would the informa- light pertinent tion in circumstances, the focus upon agree rests the conduct of the officer. We thus (b) testing refused, by If person may a motor vehicle owned the immobilized, equipped be seized ignition and forfeited or with an person prior suspensions, interlock device if the has or more 10-year period revocations or convictions within a that would be (1) person's counted under s. operating privilege 343.307 and the section; will be revoked under this (c) any If one or more tests are taken and the results of test person prohibited indicate that the has a alcohol concentration and driving operating vehicle, person subject or a motor will be penalties, person's operating privilege to suspended will be by person may under this section and a motor vehicle owned be immobilized, equipped ignition seized and forfeited or with an person convictions, prior interlock device if the has 2 or more sus- pensions 10-yearperiod or revocations within a that would be 1— (1); counted under s. 343.307 (d) submitting testing, person right After tested has the person have an additional test made a of his or her own choosing. 3Herein, "implied warnings" the term refers to the legislature information the has directed law enforcement to con vey to pursuant drivers accused of OWI to Wis. Stat. 343.305(4). (a) That information includes: explanation a brief (b) implied consent; of the nature warning about the conse quences refusing to submit to a chemical test to determine (c) blood; alcohol in warning concentration the con about sequences prohibited blood; of a concentration of alcohol (d) right request an alternative test. findings part "the that the circuit court's that

with attempts to communicate of law enforcement circum- all the reasonable under defendant were (R. 28:1-2.) exemplary. perhaps . . ." at stances, even here used reasonable officers The law enforcement convey required consent warn- methods ings, appeals. accordingly, affirm the court of and, we suppressed. not have been The test results should I—I largely undisputed. On ¶ Febru- 2. The facts are ary approximately a.m., 1:00 a Wisconsin 14, 1998, at Highway trooper patrolling U.S. Patrol State speed- pickup him a truck in front of Madison observed ing pickup drifting from lane to lane. When trooper stopped abrupt him. swerve, the truck made an Piddington, severely birth, and deaf since who has been Piddington trooper passenger that indicated to the his Piddington through pas- trooper deaf. The told going interpreter) senger (acting that he was as an sobriety Piddington perform tests after he field have Piddington's license. checked trooper passenger returned, 3. When the why Piddington trooper to know wanted told trooper stopped. the reason on he had been The wrote stop, pad, notes, and, the remainder of the used his for speaking gestures Pid- to communicate with some dington.4 trooper dispatch to track The had contacted sign lan- enforcement officer who knew down law guage, no available. was informed that one was but beginning stop, had asked both at the he had intended to have the trooper indicated that interpret, passenger he had the passenger continue to but passen he found that he did not need the return to the car when Piddington. ger interpret in order to communicate with during stop, sign language and also later for a interpreter, trooper and the told him that no one was yet Piddington, available. however, had also indicated speech-read, colloquially that he could ing lips." known as "read- Piddington ¶ 4. admitted that he had been drink- ing. trooper Piddington's eyes glassy The saw that were strong and that there was a odor of alcohol about him. trooper Piddington perform sobriety The had tests, (follow including gaze nystagamus the horizontal pen tip eyes) with the test and the walk-and-turn test. trooper Piddington through The instructed oral and demonstrating instructions, written as well as the tests for him. upon Piddington's performance 5. Based trooper tests,

these two concluded that he was impaired, perform preliminary and him had breath Piddington's test determine blood alcohol concentra- Again, trooper gave tion. both written instructions trooper and a demonstration. The result was 0.27. The placed Piddington then under arrest for OWI. The trooper Piddington handcuffed with his hands in front sign, so that he could notes, continue to write and sign language capability should an officer with became trooper preparing available. As the was to take Pid- dington headquarters breathalyzer to State Patrol for a police test, he learned that a Madison officer who had working knowledge sign language some had become arranged available, and to meet her at Patrol head- quarters. headquarters Piddington En route to requested, through note, to have a blood test. Conse- quently, trooper Hospital, took him to Meriter and police met the Madison officer there. Sign

¶ 6. The officer was not a certified American (ASL) Language interpreter, sign but knew some lan- by sign Piddington guage, communicated and she Informing given orally. para- initial each to read it and form,5 and told Accused (Piddington only graph had told the it. if he understood high graduated police from that he officer Madison write.) ini- He read it and read and and could school applicable paragraph. The the left of each tialed to attempted trooper read the form also Patrol State generated used here was Informing the Accused form Transportation and based Department of by the Wisconsin 343.305(4). pertinent part as follows: It reads in upon § you requests that submit to a Officer a Law Enforcement When Law, Implied test, pursuant Consent chemical to Wisconsin's you following: required to inform officer is A Section everyone)

(applies to Implied Consent Law You are deemed under Wisconsin's breath, your testing or urine at blood consented to chemical have testing Agency's expense. purpose The is Enforcement this Law drugs presence quantity or of alcohol or other determine the to your or breath. blood tests, any your operating privi- you to such 2. If refuse to submit lege will be revoked. you may submitting testing, request the to chemical 3. After agency prepared to that this law enforcement alternative test you may request opportu- expense a or reasonable administer at its your any qualified person a nity choice administer to have your expense. at chemical test any you test more chemical tests and result of 4. If take one or concentration, your operat- you prohibited have a alcohol indicates administratively suspended ing privilege in addition to will be penalties may imposed. other which be you you prohibited refuse to alcohol concentration or If have a you prior suspen- testing and have two or more submit to chemical sions, year period and after or convictions within a revocations 343.307(1) 1, 1988, January counted under s. Wis. which would be you may Stats., by equipped be with an motor vehicle owned immobilized, device, ignition and forfeited. or seized interlock Piddington, Piddington responded aloud to but indi- cating lips.6 that he could not his read The Madison police Piddington, it instead, officer read to without objection. Piddington The officer told to indicate whether or not he would to a test submit blood response. Piddington initial his indicated that he would submit a blood The test. result was 0.206. Piddington subsequently charged

¶ 7. was with 346.63(l)(a) OWI in violation of Wis. Stat. and with having prohibited alcohol concentration in violation 346.63(l)(b). §of Piddington

¶ 8. made a number of motions to suppress. suppression hearing, At the he testified that difficulty speech-reading, primary he has and that his communicating form of He is ASL. also testified that he interpreter fully needed an ÁSL trooper's understand both the sobriety instructions for the test and the Informing Accused form. trooper

¶ 9. State Patrol testified that there were times when it was difficult communicate with Piddington, Piddington but that he made sure that communicating trooper understood what the proceed would not until indicated that he trooper understood. The admitted he had also evaluating Piddington's perform- been more lenient in sobriety ance on the tests than he have been would hearing given difficulty drivers communicating. County Judge

¶ 10. Dane Court Daniel Circuit R. probable Moeser found that there was cause for Pid- dington's granted suppress arrest, but motions to

6Piddington stop had indicated in the he could earlier that trooper's lips. read trooper subsequently The testified that Piddington they uncooperative had become with him when hospital. reached the Piddington made test and

the blood alcohol statements "the after The circuit court found that his arrest. attempts law to communicate with enforcement all the circum- defendant were reasonable under 28:1-2.) (R. perhaps exemplary." at stances, even according attempts court, were However, to the those to to meet the State's burden nonetheless insufficient regarding Piddington his show that had been informed right con- an alternative test and other information Informing According to in the the Accused form. tained [ASL] an inter- court, the circuit preter "the defendant needed really understand the information he (R. 28:2.) being given...." at appealed, The 11. State court appeals Piddington, App 44. reversed. 2000 WI 343.305(4) appeals § that court of concluded Wis. Stat. "requires nothing arresting more than that an officer required [OWI] 'orally infor- inform' an arrestee granting Piddington's petition ¶at In mation." Id. additionally parties review, for we ordered the equal protection address the issue raised an amicus University brief filed in this case of Wisconsin Remington Law School Frank J. Center.

1—1 I—I objections ¶ 12. s to the court of statutory appeals' decision are based in both and con- interpretations. Piddington stitutional contends that enforcement Stat. law officer violated Wis. 343.305(4) provide not him because officer did interpreter. Piddington with ASL also contends interpreter of an ASL consti- absence violated the principles process equal tutional of due protection.7 Alternatively, according Piddington, correctly suppressed circuit court blood his test results for, receive, because he asked and did not an alternate test. 343.305(4) required § 13. What Wis. Stat. of trooper question statutory Patrol State is a of inter-

pretation. "Application of the consent statute undisputed any statutory to an facts, set of like con- question struction, is a of law that this court de reviews Reitter, novo." v. 2d 213, 223, State 227 Wis. 595 (1999). Similarly, reconciling N.W.2d 646 constitu- process equal tional considerations of due protection requirements with the of the con- questions law, sent statute involve which also we de novo. Id. review

A Piddington's ¶ 14. We address each of conten- considering starting turn, tions in whether the trooper complied with, State violated, Patrol or 343.305(4). requirements point of Wis. Stat. The focal statutory interpretation discerning of all is intent legislature. County DILHR, of the v. Milwaukee 80 (1977). searching 445, 451, Wis. 2d N.W.2d 118 In legislative language for intent, we start with Kelley Marquardt, 234, 247, statute. Co. v. Wis. 2d (1992). plain meaning 493 N.W.2d 68 If the of the stat- equal argument protection Connected to his is Pid- dington’s contention that the federal of 1973 Rehabilitation Act Act, poli and the Americans with Disabilities State Patrol hearing impaired cies mandate reasonable accommodation persons. Consequently, according Piddington, requiring provide interpreter State to an ASL here would not further beyond already required provide. burden the it is State what UFE, LIR further. Inc. v. self-evident, ute we look no (1996). 281, C, 2d 548 N.W.2d 57 Where 201 Wis. ambiguous, could is, "reasonable minds statute is meaning," further its the court examines differ as to history, subject pur- scope, context, matter and into the question. Harnischfeger Corp. pose v. in the statute of (1995); 650, 662, 539 98 See LIRC, 196 Wis. 2d N.W.2d UFE, Inc., Wis. 2d at 282. also 201 person [who "informed," The as "the term in orally test] requested to to a chemical shall

is submit be by officer," law enforcement the intro- informed the 343.305(4) capable § Stat. is of two duction of Wis. meanings. appeals interpreted The court of different 343.305(4) arresting [need § to mean that "an officer only] 'orally inform[ ]' of the correct an arrestee required Piddington, App 44, information." 2000 WI omitted). (footnote agrees ¶ 15 The State with that interpretation opposite the here. takes 343.305(4)'s approach, contending § mandate to that requires merely reading more the "inform" than driver, a deaf to who would unlikely, approach, comprehend to be based on such According Piddington, case, in this law them. 343.305(4) by comply only § enforcement providing could interpreter. an ASL Piddington's ¶ 16. Neither the State's nor inter- 343.305(4) pretation § Stat. Wis. is unreasonable. [the] minds Where "reasonable could differ as to mean- ing" ambiguous. statute, that statute Harnischfeger, Here, 196 Wis. 2d at 662. as in State v. (1987), 39, 45, 2d 427 Zielke, Wis. N.W.2d argued provide where the State that 343.305 did not only police means for admissible evidence obtain argued of blood alcohol concentration and Zielke that it "[t]he opposing interpretations did, of the con- parties sent law advanced demonstrate the ambiguity precisely of the statute." Because what the 343.305(4) language requires §of lawof enforcement is ambiguous, beyond scope, we look text its his- tory, subject purpose context, matter, and to determine legislature's UFE, Inc., intent. 201 Wis. 2d at 282. .presume[s] legislature . "court. intended an interpretation purposes advances of the stat- Zielke, ute." 137 Wis. 2d at 46. purpose

¶ 17. The behind the driving by "facilit[ating] law is to combat drunk against gathering of evidence drunk drivers." State v. (1980). Neitzel, 191, Wis. 2d 289 N.W.2d 828 proceed interpreta- "With this intent in mind we to an considering .object tion of the statute the. . liberally statute, mindful that the court must construe legislature's the Zielke, law to effectuate the intent." specific objective 137 at Wis. 2d 47. The of Wis. Stat. 343.305(4) implied statutory § within the consent scheme is to "advise the ofthe the accused about nature implied Reitter, driver's consent." 227 Wis. 2d 225. at 343.305(4) consequences Section the warns drivers of indicating of test results an alcohol concentration of greater consequences 0.10 as than as wbll the of refus- ing testing. Muente, to to submit State v. 159 2dWis. (Ct. App. 1990); 279, 281-82, 464 230 N.W.2d see also 340.01(46m)(a). 343.305(4)(d) § addition, In notifies right request the of the second, driver a alternative "[T]he requested arresting test to the one the officer. legislation requires apprehended that driver be right advised the of absolute to a second test. This is legislatively right strictly pro- conferred which we will

771 483, 351 Walstad, 527, 2d v. 119 Wis. tect." State (1984) added). (emphasis N.W.2d 469 law to best ensure that We turn to how legislature's comply with the enforcement officers requiring apprehended are drivers that mandate rights responsibilities under informed about their implied have Previous decisions the consent law. sufficiency implied consent warn- the addressed e.g., ings given See, Reitter, 227 to the accused drivers. Oregon Bryant, Village 2d v. 188 Wis. 213; 2dWis. of (1994); Crandall, 133 v. 680, N.W.2d 635 State 524 (1986).8 these None of Wis. 2d 394 N.W.2d law the in which the addressed manner decisions conveyed information, or officer the enforcement reasonably conveyed infor- that that whether method implicates "what case more than mation. instant persons requesting them to take must breathalyzer told when be Crandall, at 259 133 Wis. 2d

test." added). implicates (emphasis how Instead, this case given warnings, persons that are consent convey warnings. None- is, methods used to those simple previous theless, the are "founded on a decisions designed premise: are rights penalties applicable inform drivers of the sufficiency court also of This has considered form, developed by Informing the Accused a form the Wisconsin Department Transportation to assist law enforcement warnings. giving officers in accused drivers the 680, 692, Village Oregon Bryant, v. 2d See Wis. (1994). Informing found N.W.2d 635 We have here, forms, "accurately including the form used Accused drivers "the "adequately alert[ed]" informed" or accused about refusal," testing process consequences and the of State v. Reit (1999) ter, 213, 240, Bryant, (citing 2d 595 227 Wis. N.W.2d 646 692). 2d at 188 Wis.

772 County Quelle, them." Ozaukee v. 269, 198 2dWis. (Ct. 1995). App. princi- 279, 542 196 N.W.2d This same ple applies here. Quelle 19. The court concluded that there was similarity statutory

functional regarding between the mandate warnings implied consent and the constitu regarding rights. tional mandate Miranda Quelle, 198 objective Wis. 2d at 277-78. as Insofar of both tois warnings provided inform the accused, "the drivers implied .analogous under the consent law are to those employed Miranda-type in Id. cases." at 276. analogous

¶ 20. In an situation, where law gave enforcement officer an arrestee Miranda warn- ings Spanish, in that, this court indicated determining properly whether arrestee was rights, pertinent "inquiry advised of his Miranda is warnings reasonably convey whether the rights." the Miranda Santiago, State 206 n.6, v. Wis. 2d (1996) (citations omitted).9 Yet, N.W.2d 687 even though similarity there a functional between the warnings, sig- consent and Miranda there are nificant distinctions that dictate that accused driver comprehend warnings need not for warnings reasonably conveyed.10 In to have been 3, 21, Santiago, In State v. 206 Wis. 2d 556 N.W.2d 687 (1996), we concluded that the record incomplete, and thus we not "prop could determine whether the defendant had been erly "knowingly intelligently advised of' or waive[d] the rights" foreign-language Miranda because Miranda given. warnings 10First, warnings upon the Miranda are based United (see States, v. States Constitution Dickerson United 530 U.S. (2000); upon are based Wis- [the] apply not because short, "Miranda rules do implicate request does not to to a chemical test submit Reitter, 227 Wis. 2d at 225. utterances." testimonial rights Consequently, can are that the arrestee there no intelligently knowingly before the and waive or must testing proceeds, no for and concomitant need chemical warnings. id. to understand the See the accused driver ¶ 21. In of the differences between consideration warnings implied and the Miranda warn the consent ings, the law determination of whether the conveyed reasonably implied the officer enforcement objective warnings upon is based the conduct consent upon comprehension of officer, of rather than the approach This the accused driver. ensures that the "subjec subsequently of cannot raise a defense driver is, confusion," that consent tive warnings whether sufficiently not administered must were upon perception depend of the accused driver. Reit 229; Quelle, 2d Wis. 2d at ter, 227 Wis. at 280-81. warnings been rea Whether the have sonably conveyed subjective test; not it not is a does assessing perception "require the driver's infor- Second, to purpose statutes. of Miranda is consin comprehends that the arrestee his or her constitutional ensure rights knowingly rights intelligently so that those can be Santiago, purpose Wis. 2d at 18-19. waived. warnings is inform driver about implied consent to the accused statutory right him her to implied consent alert or Reitter, request an test. 227 Wis. 2d at 225. The alternative right request right an alternative test not that must be rather, testing; right proceeds waived before the officer requested request second test arises after the test has been 343.305(4)(d). completed. Wis. Stat.

mation delivered to him Quelle, or her." 198 Wis. 2d at (emphasis original). Despite significant

¶ 22. distinction between warnings, they Miranda and share the purpose informing Considering common the accused. similarity, that we conclude that whether law enforce- complied ment officers have with Wis. Stat. 343.305(4) they § turns on whether have used reasona- reasonably convey which ble methods warnings would the 343.305(4). rights § and in As in Miranda- type proof cases, State the has the burden of of show- ing, by preponderance evidence, the of that the reasonably convey implied methods used would the warnings. Santiago, consent See 206 2d at Wis. 19.11 implied setting, Also, in the as consent as well in the setting, upon Miranda the onus is the law enforcement reasonably convey implied officer to the consent warn- ings. See id. implied warnings

¶ 23. Whether the consent 343.305(4) given sufficiently comply § with Wis. Stat. depends upon the circumstances at the time of the correspondingly, arrest; whether the methods used convey reasonably and were reasonable would those warnings depends upon facing the also circumstances arresting e.g., See, Geraldson, the officer. State v. showing The initial burden of that law enforcement reasonably convey officers used those methods which would the implied Then,, warnings consent the rests with State. the bur "one, den shifts to the accused driver to show the officer that warnings, driver, misstated the or the otherwise misinformed two, impacted ability that the officer's misconduct or her his County Ozaukee make the choice available under law." Quelle, (Ct. 1995). v. 269, 278, App. 2d 198 Wis. 542 N.W.2d 196 (Ct. 1993).12 App. The Wis. 2d 500 N.W.2d 343.305(4) purpose § to inform an accused of Wis. Stat. undermined, if the law driver, fulfilled, is rather than methods that officer must use reasonable enforcement reasonably convey warnings, implied consent facing him or This of circumstances her. consideration prop- interpretation driver ensures that an accused erly law, under the consent without advised specter subjective raising Accord- confusion.13 ingly, legislature law find intended that we that enforcement officers inform accused drivers warnings, duty is met that using which are reasonable and reason- those methods ably convey warnings at those under the circumstances the time of the arrest. legislative history of Wis. Stat. 343.305(4) legisla- that bolsters conclusion

ture law enforcement officers are intended using convey those meth- warnings. reasonably access to those ods which assure pertinent language In 1985, In read "shall inform." legislature substantially 1987, revised Wis. Stat. 12 Geraldson, warnings given implied consent were In give to driver insufficient the officer failed the accused because warnings applied the driver held a commer those that to who Geraldson, 487, 495, 2d cial vehicle license. State v. 176 Wis. (Ct. 1993). to into App. 415 The officer failed take 500 N.W.2d known, giv pertinent account a circumstance that affected the warnings, namely, of ing consent the existence the commercial vehicle license. exception holding here does not affect the to the Our warning driver uncon consent mandate where the is capable withdrawing not of consent." Wis. scious or "otherwise 343.305(3)(b). or person Stat. "A who is unconscious otherwise § withdrawing presumed have capable not of is not to Id. withdrawn consent under this subsection...." (4). and 343.305, created subsection Wis. Act (4) originally § 29. Subsection drafted to read that "[a]t specimen time a test chemical is requested.. person .the shall be informed." The Senate phrase orally amended this to substitute "shall be by informed the law officer" enforcement for "shall be language informed," the at issue here. Senate Amend- ment 2 to A.B. 30. suggested In 1994, 25. this court that Inform-

ing Department the Accused forms "used of Transportation simplified." Bryant, could be 188 Wis. recipient 2d at 692. Given that "the of information, degree probable has been to a determined, cause, of alcohol," be under the influence of "reasonableness under the circumstances that the dictates directions simple straight- to the accused be as possible." Department forward as Id. at The Transportation concurred with this court's observation warnings. about the complex statutorily are instructions has required fairly led to the of a development com- plex form that is read to each accused drunk . . . Informing driver. The current the Accused form court. attempt balances . .decisions in an to provide statutorily straight- required disclosures Nonetheless, forward manner. it not an doc- easy understand, for people ument sober much less intoxicated, person person who is such aas arrested for OWI. Sobotik, from J.

Memorandum John Assistant General Department Transportation, Counsel, Wisconsin Rep. Fave, 14, 1995, La Re: John dated November Informing the Accused Form.14 though legislature may have Even the considered that warning easy implied may the consent forms not be for an intox- Bryant, year ¶ the executive after both 26. legislative steps simplify to the the took branches warnings. implied "The Task Governor's 1995 consent strongly the that Force on OAR/OWI recommended simple English." using be Memoran- form rewritten Rep. Salm, La Fave to Don dated dum from John February "Informing 1997, work- 6, Re: the Accused" February group (emphasis original). 1997, in In Representative organized La an informal commit- Fave Informing Id. In the the Accused form. tee to examine August Representative intro- 1997, La Fave and others legislation duced that set forth the plain language.15 warnings in and direct understand, the person there no indication that icated to is processes the mental of an intoxicated legislature intended that determining compliance taken account driver are to be into 343.305(4). agree appeals We court of with Wis. Stat. § requires provided the information to that "since the statute be intoxicated, only persons unlikely it is probably who are legislature understanding compre- persons' intended a or compliance hension the information to be determinative of 15, 44, Piddington, WI App with the statute." State v. However, at hand is 233 Wis. 2d N.W.2d issue give persons opportu- has deaf whether an officer same warnings hearing, nity as a understand persons, regardless English-speaking of the extent to which may processes. their interfere with their mental intoxication convey reasonably methods con- Reasonable which opportunity. sent afford that reads as

15The amended version follows: specimen At that a test is INFORMATION. the time chemical (3) (a) (am), requested under sub. or the law enforcement officer following person specimen shall read the to the from whom test requested: driving "You either been arrested for an offense that involves have motor, operating influence or or vehicle while under the of alcohol legislation, Assembly ¶ 27. That Bill 467, April was enacted as 1997 Act 14, Wisconsin 107 on August Piddington's 1998, 1, 1998, effective after though § arrest. Wis. Act 9. Even the revision changes applicable legis- here, is not the the elucidate lature's intent. Evident in the amendment Wis. to Stat. 343.305(4) legislature's place § is the intent to the onus upon convey the law enforcement officer to the warnings. is, That "the law enforcement officer following person shall read the to the from whom the specimen .[etc.]." requested. test . Stat. Wis. 343.305(4) (1997 98). Also evident is intent the — simplify warnings the so as to facilitate the officers' delivery of them. Just text should as the facilitate the receipt warnings, employed driver's the methods warnings unreasonably to deliver those should not comprehension. by simplifying obstruct their Indeed, warnings, legislature indicated both, you drugs, suspected driving duty being or are of or or on time respect consuming commercial motor vehicle after intoxicating beverage. agency This law enforcement now wants to test one more sam- or breath, ples your blood or urine to determine the concentration of any drugs your system. in alcohol or If test shows more alcohol in your system permits driving, your operating than while the law suspended. any privilege you be If refuse to take that this will test your agency requests, operating privilege you will be revoked subject penalties. will be to other The test results or fact that you you testing against can refused be used court. you tests, you may requested If choose further take all to take may take the test that tests. You alternative this law enforcement agency may provides charge. free of You also have a conducted test person your your expense. You, however, qualified at choice your arrangements will have to make own for that test. you operating If have a commercial driver license or were a com- vehicle, may positive consequences mercial motor other result from refusing testing, being placed from such test results or as out of disqualified." service or employed every means should be that reasonable being con- are ensure that requires veyed that law —whether warnings aloud, or uses enforcement officer reads another method.16 officer must use 28. That law enforcement convey implied to the consent

reasonable methods warnings mean the officer must take does not extraordinary, impracticable con- or even measures to vey warnings. implied consent Reasonableness the requires also of under the circumstances consideration dissipates from the blood over the fact that alcohol subject stopped particularly time, ing. after the has drink- Bohling, 529, 533, 2d State v. 173 Wis. N.W.2d (blood (1993); § see Stat. 885.235 test also Wis. automatically result if blood is taken admissible (3) stop). The State cannot be within three hours of indefinitely expected interpreter to to wait obtain losing Such risk evidence intoxication. would implied defeat, advance, than the intent of the rather gathering consent "to facilitate the of evidence law against in to them from the drunk drivers order remove highway." 2d at The Zielke, state's Wis. only adopt today approach we ensures that barriers arresting may ability which affect the officer's to rea- sonably convey warnings to an consent

16Accordingly, significance legislature's we find no in the 343.305(4) replace orally amendment of Wis. Stat. to "shall be changes informed" with "shall read." That amendment the verb more passive significant tense from the to the active voice. The language revision is the clear and direct of the warnings, indicating legislature's intent the text unreasonably should hinder law enforcement officer's not dispatch warnings. impaired hearing, driver,

accused such as one with are taken into account and accommodated as much as is reasonable under the circumstances.17

¶ 29. We now turn whether, under the circum- presented trooper stances that were to the State Patrol February trooper here on 14, 1998, the used those reasonably convey methods which would Piddington. trooper first com- Piddington using passenger municated with as an interpreter. Piddington When indicated that he could speech-read, read trooper and write notes as well as directly Piddington by speaking communicated through passed him, and However, as we Bryant, indicated in encourage we law enforce ment Department and/or the Transportation officials adopt to methods that would reasonably assist officersin conveyingthe warnings variety in a they ofcircumstances are likely legislature to face. by The simplifying text, assisted the but, illustrates, as the instant case the convey methods used to warnings the must also be reasonable. Such reasonable meth ods could include videos that show the warnings sign in language. Similarly, translations, by either card for those fluent language or, in the again, videos, to use prepared could be languages other than English that law enforcement officers encounter, Spanish such as Hmong. and 18Foregoing passenger use of the interpreter as an was reasonable. Where alternative methods of conveying the neces sary available, information were trooper the should not have rely had upon Piddington's to companion, might who not have objective been an interpreter under the circumstances. just speeding." At another a note that "I was wrote point, pass did I the test I walked?" he wrote "But as During stop, the it was evident that Pid- sufficiently dington understood what was per- Piddington attempted to him. communicated to by patrol sobriety car and, the tests as shown the form video-tape stop, he them to his intoxi- failed due he how cation, not did not understand to because requested Piddington perform Also, blood test. preparing trooper Patrol was to take test as State headquarters patrol test, to the state for a breath him exhibiting hap- comprehension of was further his what pening to him. Despite ability

¶ 31. his to communicate with Piddington, trooper efforts made reasonable to sign-language interpreter. He contacted his obtain dispatch, informed him that no one available. who language sign But an officer who was conversational in point located at the in time when it was most was helpful; namely, convey warn- ings. police trooper met The Madison officer and by Piddington hospital, at the and was informed Pid- speech-read dington read, and had he could high trooper graduated from school. had Informing attempted warnings using to read the Piddington form until told him that he could Accused lips speech-reading. follow The Madison not his police officer then read the objection. Piddington them, himself read without asking explanation, for clarification or ini- without paragraph, instructed, as tialed each in order show understanding. his though police

¶ 32. the Madison officer was Even language sign interpreter, an ASL-certified not using through a effort her lim- combined somewhat 782 sign language, speech-reading ited at abilities and the reading Informing implied form, of the the Accused warnings reasonably conveyed consent were to Pid- dington through reasonable methods. There was no Piddington need, contends, as for an ASL-certified interpreter in this instance. As the circuit court deter- trooper performed job mined, the with commendable attempts accommodating his various at and communi- cating Piddington.19 with implied requires only

¶ 33. The consent law sub compliance. "[Substantial compliance stantial will compliance respect suffice if it 'actual is to the sub every objective stance essential reasonable (quot Muente, 279, statute.'" State v. 2dWis. ing Nicolazzi, Midwest Mut. Ins. Co. v. 138 Wis. 2d (Ct. 1987)). App. 200, 405 N.W.2d 732 The reasonable 343.305(4) objective § of Wis. Stat. is to inform the warnings. accused ofthe consent It that follows aspect objective the essential of that is to use those reasonably convey methods calculated the informa given tion the circumstances. Given that the State trooper's Patrol conduct that meth shows reasonable convey warnings ods to Piddington compli used, were there was substantial 343.305(4) § ance with here. Piddington "really The circuit found court could not warnings, indicating that the

understand" analyzing trooper complied court whether the had was incident, 343.305(4) by viewing from Pid- Wis. Stat. § dington1 perspective. subjectively s Whether Rather, there understood irrelevant. whether compliance upon objec with 343.305 remains focused tive conduct of the law enforcement officer or officers involved. assuming, arguendo,

¶ that However, reasonably trooper not use reasonable methods did convey implied and thus violated consent 343.305(4), Piddington § not necessa- Stat. would Wis. rily suppression of the test results. entitled to be defendant as though failure to advise the

[E]ven law affects the provided proceeding in a civil refusal position State's benefits, evidentiary certain results in the loss of admissibility automatic of results and use of e.g., refusal, nothing the fact of in the statute or its his- comply that failure to tory permits the conclusion Stats, 343.305(4)], 343.305(3)(a), [now sec. § admissibility legally chem- prevents the obtained in the and distinct separate ical test evidence involving criminal for offenses intoxi- prosecution cated use of a vehicle. Apart suppression,

Zielke, 2d at 51.20 from 137 Wis. pursued prohibiting an order could have admissibility pur- of th'e test result the automatic blood relying upon § Instead of suant 885.235. admissibility test, the State automatic blood 20Zielke, intoxicated, driving caused an accident while resulting persons. in the death of two The circuit court found justified taking exigent that there were circumstances that testing, Zielke's blood for alcohol and that he consented as well. give required police Because the officer did not Zielke the warnings, suppressed the implied consent the circuit court test results, appeals the court of affirmed. This court reversed appeals, holding, part, the decision of the court of viola compel suppression tion ofthe consent law did not ofthe concluded that where there are exi blood test results. We also gent accused driver consents to a blood circumstances or the test, constitutionally permissible. a warrantless blood seizure (1987). Zielke, 39, 54, State v. 137 Wis. 2d 403 N.W.2d 427 admissibility of the have to establish the blood would including establishing test, a foundation. other remedies that an 35. There are also may pursue there is evidence

accused driver where not reasonable and would that the methods used were reasonably conveyed not have 343.305(8), warnings. example, under Wis. Stat. For challenge the automatic administrative a driver could suspension that of his or her license. One issues may "[w]hether hearing the the examiner consider is regarding person options tests was informed of the (4)." required under this section as under 'sub. Wis. 343.305(8)(b)2.b. Similarly, § an accused Stat. driver challenge of his or her could automatic revocation refusing to to a chemical test under license for submit 343.305(9). § matter, notice Stat. As an initial the Wis. must include "informa- of the intent revoke (4)." complied .[t]hat tion. . the officer with sub. Wis. 343.305(9)(a)2. § Then, one of the issues for Stat. "[w]hether hearing the officer com- on the revocation is (4)." 343.305(9)(a)5.b. plied § Both sub. Wis. Stat. with procedure suspension the administrative and refusal driving privi- maintain their allow accused drivers to leges pending. Wis. Stat. while the review is 343.305(8)(a),(10)(a). § 343.305(4) §

¶ conclude that Wis. Stat. 36. We requires rea- enforcement officer use those that law reasonably convey, sonable methods which would at the time of the of the circumstances consideration warnings implied Here, therein. the consent arrest, trooper employed methods, in consid- reasonable state hearing impairment, Piddington's of eration warnings reasonably convey 343.305(4), Piddington. trooper complied 343.305(4) accordingly, §of and, there was no violation Piddington's suppression blood that would warrant test results.

B ¶ 37. makes a number of other chal- lenges appeals' upon to the court of decision based alleged policy of constitutional and consider- violations example, Piddington ations. For contends that appeals' approach only court of enforcement need —law read the the con- —violates guarantee process.21 due stitutional Bryant, that In this court concluded provisions ofthe consent statute did not violate Bryant, process. There, 2d 692. due 188 Wis. they "either defendants claimed that were misinformed hopelessly or the were confused and contradic- statutes tory." contrary, process "[t]he Id. held to the We guaranteed by appropriate statutes is one and statutory protections and admonitions were afforded each of the defendants in the cases on review." Id. implied

¶ 39. This court has also found that the warnings, given by way Informing consent of various process. e.g., forms, See, the Accused do not violate due Bryant, Crandall, 692; 188 Wis. 2d 133 Wis. 2d 259. convey implied warnings The forms used to consent process they "adequately do not violate due because testing process alert[ ] accused to the and the drivers consequences Reitter, of refusal." 227 Wis. 2d at 240 (citing Bryant, 692); Crandall, 188 Wis. 2d at see also (the Informing 133 Wis. 2d at 259 the Accused form 8(1) I, According Article Section of the Wisconsin Con stitution, person may "[n]o held be to answer for a criminal process offense without due of law...." rights [the defendant] "adequately of her informed implied responsibilities under the Wisconsin consent law"). Bryant,

¶ Crandall, Reitter, In there 40. objections or the ade- no to the reasonableness were warnings merely reading implied quacy consent apparently defendants, were not deaf and to the who English. The issue here is not whether understood warnings pro- violates due text of the consent convey the methods used to cess, but whether process. However, due we have violated 343.305(4) already § Stat. determined herein Wis. complied methods are used to is reasonably convey with where reasonable warnings. long process Accordingly, Bryant, here, as in so as the guaranteed afforded the the statute has been process the text driver, whether that relates to accused they warnings or the manner in which are con- veyed, process no due there is violation. Piddington process

¶ all the due 41. received 343.305(4). § the assistance of under Wis. Stat. With trooper, police Patrol as officer, the Madison the State 343.305(4) requires, used those reasonable methods circumstances at the time of the which, under the reasonably convey arrest, would Accordingly, warnings. of due there was no violation process. that the court of also contends guaran-

appeals' approach the constitutional violates hearing equal protection under the law because tee of persons opportunity to understand will have the per- them, deaf read to and consent equal protection review, not.22

sons will "To withstand distinguish persons deaf classifications which between only rationally legiti and others need be related to a government Morgan, mate v. interest." Rewolinski 896 (E.D. 1995). Supp. 879, 881 F. Wis. The upon legitimate government is law based interest protecting public removing welfare, wit, of drunk County Proegler, drivers from the road. Milwaukee v. (Ct. 1980). App. 614, 631, 95 Wis. 2d 291 N.W.2d 608 justification apparent ¶ 43. There is no rational permitting English-speaking hearing for drivers warnings, purpose- access to the fully excluding non-English speaking and deaf drivers warnings. Indeed, access to those we have found that persons equal legal deaf system. are entitled to access (the

See Stat. 885.37 Wis. deaf and hard-of- 22Equal I, protection guaranteed by Article Section 1 of Constitution, the Wisconsin and the Fourteenth Amendment to I, the United States Constitution. Article Section of the Wis consin Constitution states: people equally independent,

All are born free and and have certain rights; among life, liberty pursuit inherent these are and the of instituted, happiness; rights, governments to secure these are deriving just powers governed. their from the consent of the Equal Protection Clause Fourteenth Amendment requires "deny any no person State shall within its jurisdiction equal protection laws." We treat Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and the Wisconsin Constitution as equivalent because "there is no substantial difference between" Benson, n.28, them. v. Jackson 218 Wis. 2d 900-01 (1998) (quoting Sylvester, N.W.2d 602 State ex rel. Sonneborn v. (1965)). 43,49-50, 132 such, 26 Wis. 2d As N.W.2d we refer analyzing I, to cases the Fourteenth Amendment or Article Sec tion 1 of the Wisconsin Constitution. court); right interpreters

hearing in also a to see have 359, 181 Neave, 117 Wis. 2d 344 N.W.2d State v. (1984).23 light purpose the However, in of taking implied the of tests law—"to facilitate consent ability of the and not to inhibit the for intoxication high the remove drunken drivers from state to steps way" arresting take to officer need not —the warnings jeop convey implied would the consent which ability of or her to obtain evidence ardize his get drunk off the road. Neit intoxication or driver arresting need 2d at 203-04.24 The officer zel, 95 Wis. 23 Neave, that a criminal defendant has a In this court held right interpreter. to an right federal constitutional to an

We do not hold that there is administration, judicial interpreter. do hold that as a matter of We ques- questions of effective assistance of counsel and and to avoid testimony inability reasonably understand tions whether cross-examination, right or resulted in a loss of an effective attorney right a defendant or his had been waived whether and how such assent was demon- the defendant's assent strated, adopt that herein announced. We also conclude we the rule unfairly feeling having been dealt with which it removes the incomprehensible part when or all of trial is bound to arise requires language . that such barrier. . .Fairness because of may criminal courts have the persons defendants in our who be interpreters where needed. assistance of (1984). 365-66, 344 Neave, 359, 2d N.W.2d State v. Wis. of the essence also noted that time is This court has for both the alcohol concentration obtaining evidence of blood Bohling, 2d See State v. 173 Wis. and defendants. State 885.235(1) (1993); Stat. 546-47, § see also Wis. 494 N.W.2d 399 upon sample taken (admissibility alcohol test based of blood allegedly done under the that 3 hours after the event within intoxicant). impacts passage of time Because influence of an concentration, arresting that an testing alcohol for blood reasonably con employ reasonable methods officer those into account the time warnings, takes vey consent only warnings ensure that the are rea- sonably conveyed facing under the circumstances officer at the time of the arrest under Wis. Stat. (cid:127) 343.305(4). 343.305(4) § would not Consequently, differently

treat an accused driver who is deaf than one who hears. Because reasonable methods were used reasonably convey which would Piddington, disparate there has been no Piddington equal pro- treatment here. was not denied tection under the law.

¶ 44. also contends that the federal counterpart 1973, Rehabilitation Act of to the fed- (ADA) eral Americans with Disabilities Act is applicable required provide here and the State to .interpreter. rights responsibilities established by nearly the ADA and the Rehabilitation Act are iden- part, tical; the two are, statutes for the most distinguished by the fact that the Rehabilitation Act applies only receiving public funding. to entities Wash- ington High v. Central Sch., Catholic 840, 181 F.3d 845 (7th 1999). "[T]he applicable n.6 Cir. standards to one applicable act are to the other." Id.

¶ 45. Case law is in conflict as to whether an "benefit[ ] programs, arrest is a of the services, or activ- public entity," by ities of a and thus covered the ADA or § Rehabilitation Act of 1973. See 42 12132; U.S.C. § Montgomery County, 794; U.S.C. see also Rosen v. (4th Maryland, 1997) (arrest F.3d Cir. is ADA); Calloway not within the ambit of the v. Boro of Dep't Supp. Police, Glassboro 89 F. 2d 543, 555-56 Accordingly, concern. approach this court develops today serves to advance purpose 343.305, a rational of § which is to facilitate gathering of evidence of drunk driving. 2000) (D. (station-house investigative questioning N.J. Act). the ADA and Rehabilitation Assum- covered ing, arguendo, that Act covers Rehabilitation Piddington's stop arrest, and thus the standards of nothing applicable, there is in the record both acts are that funding, that the State Patrol receives federal establishes prerequisite application is a of the

which § if And, Act. 29 U.S.C. 794. even there were a violation Piddington's remedy here, of the Act Rehabilitation suppression evidence, rather an would not be but § the Act or 42 U.S.C. 1983. action under trooper Nonetheless, fol- the State Patrol guidelines the accommodation in the lowed established regulations promulgated under the ADA. See 28 C.F.R. (2000). regulations public § ADA that enti- 35.160 state appropriate steps take to ensure ties "shall public communications with . . . members are as effective as communications with disabilities auxiliary appropriate aids and others," and "furnish (b) 35.160(a), necessary." where 28 C.F.R. services (2000). given "[P]rimary to the consideration" is to be 35.160(b)(2) request. individual's 28 C.F.R. disabled (2000). pertinent circumstances should However, account. taken into be notepad a and

Although in some circumstances effec- may permit materials sufficient to written be communication, they in circumstances tive other example, qualified sufficient. For may not be may necessary when the information interpreter be exchanged for complex, is or is being communicated Generally, factors to be of time. lengthy period interpreter an determining considered in whether in the commu- include the context which required is taking place, people the number of nication is involved, the communication. importance and the 1991). (July Similarly, Reg. pro- 56 Fed. as parties, Policy State Patrol and vided interpreters indicate that used if Procedures should be possible practical, "point is, and whenever at the inspector trooper or determines that the of a service necessary qualified interpreter ensure effective Policy State communication." Wisconsin Patrol Using note-writing Procedure Number 5-10. or other auxiliary permitted. aids to communicate is also Id. trooper

¶ 47. The State Patrol and Madison police acceptable, various, officer used methods to com- Piddington. trooper auxiliary municate used note-taking aids, demonstrations, such as which Piddington. assisted in his communication with According videotape stop, to the notes and the Piddington questioned there is no indication that or objected trooper's conveying to the methods of the nec- essary Piddington information. continued trooper requested communicate with the even after he interpreter. videotape Review of the notes and the Piddington obviously sobriety reveals that failed the error, tests not due to a communication he but because impaired. Indeed, was an initial test showed that his legal blood alcohol level was almost three times the limit. trooper repeatedly

¶ 48. The also ensured that Piddington following instructions, was his and testified that he took more time and was more lenient with Piddington impaired hearing because of the At barrier. pro- moment, the most crucial when Informing form, vided with the the Accused there was sign-language. an officer on hand who knew She was interpreter, not a certified she but was conversational sign-language. completed She reviewed and the form

792 Piddington, objections questions or from without Piddington. complied trooper the State with both regulations and federal

Patrol Policies and Procedures promulgated under the federal Rehabilitation Act of note-taking auxiliary using aids, 1973 and other including working knowledge sign- an officer with language, necessary to ensure that information conveyed Piddington. Consequently, contrary Piddington's contention, there was no need for a certi- sign-language interpreter fied here.

HH h—1 1—1 Finally, Piddington suppres- ¶ 50. contends that justified here, sion of his blood test result is if not based 343.305(4) upon alleged violation ofWis. Stat. con- cerning warnings, then, based upon Piddington requested, the contention that but did receive, not an alternative test for blood alcohol concen- Piddington upon Renard, tration. relies State v. 123 (Ct. 1985) App. 458, Wis. 2d 367 N.W.2d 237 and State (1986). McCrossen, 277, 161 v. 129 Wis. 2d 385 N.W.2d cases, In both the circuit court found that the accused requested repeatedly had an additional chemi- driver given. Renard, 460; cal test that was not 123 Wis. 2d at McCrossen, Also, cases, 282-83. 129 Wis. 2d at both suppressed the circuit court the results the first tests perform appropriate as "an for the failure to sanction" requested Renard, 461; 123 2d at the second test. Wis. McCrossen, 2d at 287.25 Wis. Walstad, v. State upon 2d also relies Wis. (1984). Walstad, In this court concluded 351 N.W.2d 469 breathalyzer machine need not ampoule the test from the Id. at 527 — 28. The re-testing. provided

be to the defendant for Piddington requested ¶51. claims that he an However, unlike Renard and Me alternative test. finding Crossen, the circuit court here made no factual Piddington requested second, that had a alternative Piddington requested test.26 a blood test as the State trooper Patrol to take him to State Patrol was about breathalyzer headquarters However, for a test. this formally right he had been notified of his to before request a second After he had test. been informed ofhis right request Piddington test, to a second did not request McCrossen, such a test. Unlike in Renard and Piddington request here, did not second alternative Renard, test after he submitted to the initial test. 123 only McCrossen, 2d at 2d 460; Wis. Wis. at 281. The requested, received, is, test he he that the blood test.27 test, requested only defendant had requested not second but to ampoule. dispute test the used There is no that an accused is, right request driver has a to a second test. Id. at 527. There however, no requested evidence the defendant here a sec- right ond after request test he was informed of his to a second test. only Piddington The circuit court found that needed interpreter given ASL to understand the information him con (R. 28:2.) cerning right request his a second test. at We have concluded, however, trooper that the needed to use reasonable reasonably convey warnings, methods to test, including right request and, a second as the circuit found, "attempts court also of law enforcement to communi cate with the defendant were under all reasonable (R. 28:1-2). circumstances." at opportunity "The second test affords the defendant the verify impeach scrutinize and or the results of the . . . test Walstad, administered enforcement authorities." 119Wis. 2d may provide at 527. The second test exculpatory also evidence. McCrossen, 277, 294, State v. 129 Wis. 2d 385 N.W.2d 161 (1986). However, Piddington contended, has not even let alone requested

¶ 52. if had Even but did test, not an alternative he would not be entitled receive suppression to automatic of the results of the test he have, earlier, did as he now contends. As discussed implied consent law does not dictate that a violation requires suppression thereof of a blood test as a rem- edy. Accordingly, Zielke, 137 Wis. 2d at 51. Piddington's upon misplaced. reliance McCrossen is As explained in Zielke, we 137 Wis. 2d at 55-56: acknowledge

We in court [McCrossen\ this approved a suppression of blood alcohol test a case, driving prosecution. while intoxicated In that case, defendant, unlike the instant who was contrary arrested for under operating the influence 346.63(l)(a), Stats., to sec. specifically asked the arresting breathalyzer officer who administered the test, test if she could have another either blood or urine, did because she not believe the results of the police first test. The told the defendant she would any test, pay have to for alternative which is con- 343.305(5). trary agreed to sec. The defendant but the police requested never administered the alter- addition, by native test. In she was never informed police get that she could be released in order to an fact, In though alternative test. a friend arrived ready bail, until post she was not released hours later. On facts, suppression appropri- those was an remedy, required by ate hut it is no means implied consent law. added.)28

(Emphasis shown, provided impeachment or how second test would have exculpatory evidence. See id. at 294. 28Also, precise issue this court in McCrossen was before suppression appropriate, "not whether but whether deprived denial of a second test the defendant of constitution- for an automatic There would be no reason requested suppression had here, even if enforcement The conduct of the law second test. requests respect for an to the defendants' officers with sup- McCrossen, in Renard and which alternative test suppression ported there, is not the circuit court's taken to a Renard, In the defendant was evident here. injuries following hospital an accident. 123 Wis. 2d for driving arrested Renard for There, at 460. officer Renard to a intoxicated. The officer had submit while breathalyzer give did not him the test test, blood but inquired requested. could have at that he The officer hospital Renard would have to determine whether breathalyzer give him a test. released in time to been yet released in left, But the officer Renard was breathalyzer McCrossen, In time to take a test. Id. test, and told defendant asked for an alternative pay it, true. 129 Wis. 2d at she had to for which was not agreed pay for another 281. McCrossen nonetheless got it, that she test, she never nor was she informed but get the other test. Id. "The defen- could be released to informed that there was an dant also was never police department pre- alternative test that the was pared police expense." Here, to administer at Id. accurately Piddington contrast, misled; was not he was procedure; and, test he informed about the alternative got requested. test he the Piddington request

¶ 54. did not an alternative right. Accordingly, after he informed of that test was right assuming arguendo, request that somehow his sup- violated, that a reason to a second test was is not evidence, ally thereby required dismissal of the material charge." Piddington Id. at 287-88. does not make such conten- tion here.

press request.29 the test results of the blood test he did There are no other circumstances here that would war- suppression Piddington rant of the test results if even requested being had test, alternative after informed right. that

IV legislature's regarding ¶ 55. The intent the implied warnings is accused drivers are to warnings, requires be advised of the which law enforce- according ment officers which, to utilize those methods to the circumstances that existed at the time of the reasonably convey arrest, were reasonable and would warnings. actually Whether the accused driver has comprehended warnings part inquiry, is not upon rather the focus rests the conduct of the officer. We conclude here that the law enforcement officers reasonably involved used methods to reasonable con- vey under existing circumstances at the time of the arrest. In Piddington addition, there was no evidence that was requested denied a second test that he after the blood requested. Accordingly, test he there no violation 343.305(4) suppression §of would which warrant Piddington's blood alcohol concentration test results. appeals. affirm the We thus court of 29Moreover, constitutionally "if evidence is otherwise obtained, nothing there is in the consent law which subsequent prosecution," renders it inadmissible in a criminal provided even if there was a "failure to advise the defendant as Zielke, by consent law." 137 Wis. 2d at 51-52. One way constitutional for evidence to be consent. Id. obtained Here, test, merely at 52. did not consent to a blood requested given Informing he it even before he was Accused form.

797 appeals By the court of decision of the Court.—The is affirmed.

¶ ABRAHAMSON, CHIEF SHIRLEY S. 56. person (concurring). case, In one who is this JUSTICE profoundly legal into contact with the deaf has come speak, Many system. people hear, in this state cannot language. English some this is For or understand hearing impairment, for others because of a because English. they languages than in other are fluent legal system language is the basic tool Because fully participate. people cannot these figures, According Wis- to the 2000 census roughly Hispanic populations and Asian consin's Getting qualified past inter- in the decade.1 doubled increasingly preters diverse and multicultural for our urgent population enforcement, the is an issue for law system.2 legal services, and others in the courts, social provide interpreters as a basic service Courts should part proceedings.3 As of its fairness of court ensure interpretation efforts to address court-related 1 Madison, County Dane Borowski, Larry Greg Sandler Valley grows growth; Fox twice as as state's southeast lead fast region, ern Sentinel, 9, 2001, March at 1A. Milwaukee Journal 2 Injustice Any Language: in Pantoga, See Heather Governing Improved Interpreta Standards Courtroom Need for Wisconsin, Marq. (1999). in tion L. Rev. 601 speak [those and understand requires "Fairness who may only languages English] than be defendants other who interpreters criminal courts have the assistance where our Neave, needed." State v. 359, 366, 117 Wis. 2d 344 N.W.2d (1984). system recently

translation issues, the Wisconsin court published report a entitled "And Justice for All."4

¶ 58. This case illustrates how vital it is for the legislative, judicial executive, and branches of this together provide qualified interpreters state to work persons and translators speak, so that hear, who cannot English meaningful or understand have access system. legal right thing to the That's the fair and do. (concurring). agree

¶ SYKES, 59. DIANE S. J. I majority's rejection argument, with the of the State's adopted appeals, implied the court of that the con- requires nothing English sent law oral, more than an language reading implied warnings, consent regardless driving suspect of whether the drunk can spoken English. major- either hear or understand The ity adopts evaluating arresting a new test for an compliance implied officer's with the statute, consent one that focuses on the reasonableness of the officer's administering conduct in consent warn- ings. separately express I write some concern about practical operation of the new test. question

¶ it, 60. As I see in this case is 343.305(4)(1995-96), whether Wis. Stat. requires which arresting "orally officer to inform"1 a drunk driving suspect rights responsibilities of his under Improve Interpreting Committee to & Translation in the Courts, Improving Wisconsin And Justice All: Interpretation for (Oct. 2000), in Wisconsin's Courts http:// available at www.courts.state.wi.us/circuit/pdf/Interpreter_Report.pdf says The current statute the officer "shall read" the 343.305(4) suspect. to the Wis. Stat. § (1998 99). majority opinion The change concludes that this in — obtaining a chemical law before requires to do so in the officer intoxication,

test for language suspect The circuit court understands. appeals "yes." This court said "no." The court of said says depends. "maybe yes, maybe It no." pro- has in this case been The defendant foundly and communicates since birth deaf (ASL). sign Sign Language He asked for American interpreter language for drunk the time of his arrest at arresting driving, officer none available. but who knew some of an officer the assistance obtained sign language, in ASL. The officers not fluent but was writing partially in the defendant with communicated language, through sign partially and the defen- and Informing given Accused form the the written dant was orally. The to him form was also read to read. The asking test, which for a blood defendant wrote a note registered concentration of 0.206. alcohol blood suppress

¶ the test The defendant moved to 62. provided arguing he should have been results, that implied interpretation consent of the an ASL with warnings. agreed, granted the The circuit court majority appeals The The court of reversed. motion. grounds. appeals, on different the court of but affirms majority According opinion, whether an officer to the depends upon complied whether statute has "reasonably convey" methods" to he "reasonable used suspect warnings not, to the consent — language apparently, used a the officer whether suspect could understand. entirely

¶ clear this new "rea- It is not what 63. convey" requires "reasonably test methods" to sonable driving confronted with a drunk an officer to do when interpretation in no substantive difference language makes nn.15-16, statute, agree. and I majority op. at suspect spoken English, who does not communicate in speaks either deaf, because he is or because he foreign language only. majority understands require interpreter does not read the statute to or a warnings recorded translation of the in situation, this long as as the officer's communication "methods" were "reasonably convey" otherwise reasonable and would warnings. merely I assume that an officer who reads warnings person, out loud to a deaf complied more, without will not have with the statute "reasonably convey" under the "reasonable methods" to test. It seems to me that this would be considered an communicating unreasonable method of with a deaf person, reasonably likely or would not be considered convey warnings Similarly, to one who cannot hear. merely I assume that an officer who reads the English suspect speaks to a who only Spanish complied will not have statute, with the this, because too, would be considered unreasonable under the test.

¶ 65. These conclusions would be consistent with statutory common sense and the rule of construction requires interpretations courts to avoid of statutes Verdoljak that lead to absurd or unreasonable results. Paper Corp., v. Mosinee 624, 636, 200 Wis. 2d 547 (1996); N.W.2d 602 State v. Williams, 516, 198 Wis. 2d (1996); 532, 544 N.W.2d 406 Zielke, State v. 137 Wis. 2d (1987). 39, 51, 403 Indeed, N.W.2d 427 this would be only pro- construction of the statute that "does not 'questionable duce results' and make the law look 'silly.'" Williams, 198 Wis. 2d at 532. The notion that requires only English language the statute an oral reading consent to a deaf or non-English speaking suspect manifestly is unreason- legislature The cannot have intended a

able. meaningless sug- or such as the State's futile exercise produce gested construction of this statute would See, Sutherland, 2A Statutes and Statu- this situation. tory (6th ed.) ("it § 45:12, at 94 cannot be Construction, thing"). legislature presumed that would do a futile ¶ Furthermore, "the rule in 66. cardinal inter- purpose preting statutes is that the of the whole act is sought over and is favored a construction which to be object of Student defeat manifest the act." Ass'n will Baum, v. 74 Wis. 2d Univ. Wisconsin-Milwaukee of of 283, (1976); also, 294-95, 246 N.W.2d see Caldwell (Ct. Percy, 354, 361-62, v. 105 Wis. 2d 314 N.W.2d 1981). App. purpose: This has dual facili- statute driving, evidence of intoxicated tate collection of driving persons and to ensure arrested for drunk rights obligations informed their under are about majority op. ¶¶ at consent law. See 17-18. purposes thoroughly The second of be these would if the read to a deaf or defeated statute is entitle non- English speaking suspect nothing than an oral, more English language warnings, recitation of the which he slightest hope comprehending. not the has majority correctly notes that only implied is not the means which a law may lawfully enforcement law officer obtain chemical driving suspect. from a evidence intoxication drunk permits Majority op. ¶at 34. The Fourth Amendment the warrantless of chemical evidence of seizure intoxi- exigent upon probable cation based cause (citing Wis. Zielke, circumstances. 2d at 51-52 (1966)). Schmerber v. 384 U.S. 766-72 California, remedy Suppression required noncompli- not as for although law, ance with the the State may evidentiary lose benefits of automatic admissi- bility presumption specified and the of intoxication 343.305(5)(d) §§ Wis. Stat. and 885.235. Id. Accordingly, join major- I concur in and ity's foregoing decision affirm,2 with the practical application observations about the compliance court's new test for with the con- sent non-English statute in the case of deaf and speaking suspects.

2 particular, agree In I majority's reiteration that there "subjective is no confusion" defense to the admissibility of a chemical test obtained under the law, as well as its treatment of the process, equal defendant's due protec tion, Americans with Disabilities Act and Rehabilitation Act arguments. notes back and forth.18 A Piddington trooper review the notes between and the hap- reveals that pening, was aware of what was questions trooper particular, and his to the understanding. example, Piddington reflected his For 17As we before, have indicated we do require not that a Miranda-like card developed. Bryant, be 188 Wis. 2d at 692.

Case Details

Case Name: State v. Piddington

Court Name: Wisconsin Supreme Court

Date Published: Mar 22, 2001

Citation: 623 N.W.2d 528

Docket Number: 99-1250-CR

Court Abbreviation: Wis.