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State v. Renard

Court of Appeals of Wisconsin
Mar 12, 1985
123 Wis. 2d 458 (Wis. Ct. App. 1985)

Summary

concluding that where there is a valid request for a second test, an officer must exercise reasonable diligence in providing it

Summary of this case from State v. Peterson

Opinion

No. 84-1818-CR.

Submitted on briefs December 18, 1984. —

Decided March 12, 1985.

APPEAL from an order of the circuit court for Brown county: JOHN C. JAEKELS, Judge. Affirmed.

For the appellant there was a brief by Royce A. Finne, assistant district attorney for Brown County, of Green Bay.

For the appellant there was a brief by Bronson C. La Follette, attorney general, and Stephen W. Kleinmaier, assistant attorney general.

For the respondent there was a brief by Parins, McKay, Mohr Beinlich, S.C., and R. Paul Mohr of Green Bay.

Before Cane, P.J., Dean and LaRocque, JJ.



The state appeals an order suppressing the results of a blood alcohol test. The circuit court suppressed the evidence because the police did not perform a breathalyzer test as an additional test requested by Steven J. Renard. The state challenges the court's factual finding that Renard requested an additional test. The state also argues that suppression of the blood test is an improper sanction for failure to perform an additional test. Because the circuit court's finding that Renard requested an additional test is not contrary to the great weight and clear preponderance of the evidence, and because the failure to perform the test violated sec. 343.305(5), Stats., and denied Renard access to material evidence, we affirm the suppression order.

A police officer arrested Renard at a hospital that was treating Renard for injuries he sustained in an automobile accident. The officer charged Renard with driving while intoxicated. The officer requested Renard to permit a blood sample to be drawn for a blood alcohol test. Renard requested that a breathalyzer test be performed instead. The officer persuaded Renard to consent to the blood test because the blood sample could be drawn at the hospital. A breathalyzer test apparently could not be performed at the hospital, and Renard's doctor was unsure whether Renard would be hospitalized overnight. Renard and his wife claim that he continued to request the breathalyzer test after he consented to the blood test. The officer denies this contention. After the blood sample was drawn, the officer left the hospital without inquiring again whether Renard would be hospitalized overnight. The hospital released Renard shortly after the officer left. The release occurred less than two hours after Renard's accident.

The circuit court's finding that Renard requested a breathalyzer test in addition to the blood test is not contrary to the great weight and clear preponderance of the evidence. See State v. Walstad, 119 Wis.2d 483, 514, 351 N.W.2d 409, 485 (1984). The police therefore had a duty to perform an additional test because he consented to the blood test. See sec. 343.305(5), Stats. Although the breathalyzer test apparently could not be performed at the hospital, Renard's release from the hospital soon after the blood test enabled the officer to take him to the police station for the additional test. Because three hours did not lapse between the time of Renard's accident and his release from the hospital, the police could have timely performed a second test. See sec. 885.235(1), Stats. While we do not hold that the officer had a duty to remain indefinitely at the hospital until Renard's release, the officer did have a duty before leaving to make a final inquiry concerning the expected time of Renard's release. This duty existed because Renard requested an additional test, thereby requiring a diligent effort by the officer to comply with the demand.

Suppression of the blood test is an appropriate sanction for failure to comply with sec. 343.305(5). The duty to perform the requested additional test became mandatory after Renard submitted to a blood test. The circuit court must strictly enforce the statutory right to an additional test. See Walstad, 119 Wis.2d at 527, 351 N.W.2d at 491. Denial of an additional chemical test effectively prevented discovery of material evidence relating to the prior test. Id. at 537, 351 N.W.2d at 490-91. When an denied a statutory right to discover evidence relating to a chemical test, the proper sanction is suppression of the test results. See City of Lodi v. Hine, 107 Wis.2d 118, 122, 318 N.W.2d 383, 384 (1982).

We reject the state's argument that suppression of the blood test results is only appropriate if necessary to protect Renard's constitutional rights. The state correctly argues that admission of the blood test results does not violate due process because Renard has other means available to question the accuracy of the blood analysis. See State v. Disch, 119 Wis.2d 461, 471-72, 351 N.W.2d 492, 500-501 (1984). The legislature may adopt more rigorous safeguards, however, than those imposed by the federal or state constitution. California v. Trombretta, ___ U.S. ___, ___, 104 S. Ct. 2528, 2535 (1984). Here, the legislature requires the opportunity for an alternative test, which our supreme court has said is an assurance of due process. Walstad, 119 Wis.2d at 527, 351 N.W.2d at 491. Because the legislature's provision for an alternative test is not based on an erroneous determination of materiality, see id. at 523, 351 N.W.2d at 489, we will enforce compliance with the requirement by excluding blood test results when an alternative test is not provided. Enforcement of the statutory right to an alternative test would otherwise be impossible.

By the Court. — Order affirmed.


Summaries of

State v. Renard

Court of Appeals of Wisconsin
Mar 12, 1985
123 Wis. 2d 458 (Wis. Ct. App. 1985)

concluding that where there is a valid request for a second test, an officer must exercise reasonable diligence in providing it

Summary of this case from State v. Peterson

In State v. Renard, 123 Wis.2d 458, 461, 367 N.W.2d 237 (Ct.App. 1985), the court of appeals concluded that failure to provide an alternative test did not violate due process, but rather a statutory right.

Summary of this case from State v. McCrossen

In Renard, 123 Wis. 2d at 460, after a blood sample was drawn from the accused at the hospital, the officer left without providing an additional test even though the accused had requested a breathalyzer test in addition to the blood test.

Summary of this case from State v. Paul

In Renard, as in this case, the officer requested that the accused submit to a blood test, the accused requested that a breathalyzer test be performed instead, but he did submit to a blood test, and no breathalyzer test was performed.

Summary of this case from State v. Schmidt

In Renard, the trial court found that "Renard requested a breathalyzer test in addition to the blood test," and we held that the finding was "not contrary to the great weight and clear preponderance of the evidence."

Summary of this case from Cty. of Waukesha v. Islami

In Renard, the suspect asked for the department's alternate breath test after he had submitted to the department's primary blood test.

Summary of this case from STATE v. HELD

In State v. Renard, 123 Wis.2d 458, 367 N.W.2d 237 (Ct.App. 1985), an officer arrested Renard for OMVWI at a hospital where he was being treated for injuries from an automobile accident.

Summary of this case from State v. Biever

In Renard, we sustained the suppression of the initial blood test results and held that the officer failed to comply with § 343.305(5), Stats., because he failed to make a reasonable inquiry concerning the expected time of Renard's release. Because three hours did not elapse between the time of Renard's accident and the release from the hospital, the police could have timely performed the requested second breath test.

Summary of this case from Village, Menomonee Falls v. Prellwitz

In State v. Renard, 123 Wis.2d 458, 367 N.W.2d 237 (Ct.App. 1985), a police officer arrested Renard at a hospital that was treating him for injuries sustained in an automobile accident.

Summary of this case from Village, Menomonee Falls v. Prellwitz

In Renard, an officer arrested Renard for OMVWI at a hospital where he was being treated for injuries from an automobile accident.

Summary of this case from State v. Hansen

In Renard, the trial court found that the defendant had requested a breath test as an additional test to the blood test.

Summary of this case from State v. Amerson

In Renard, the trial court found that "Renard requested a breathalyzer test in addition to the blood test," and we held that the finding was "not contrary to the great weight and clear preponderance of the evidence."

Summary of this case from State v. Zastrow

In Renard, we sustained the suppression of the initial blood test results and held that the officer failed to comply with § 343.305(5), STATS., because he failed to make a reasonable inquiry concerning the expected time of Renard's release. Because three hours did not elapse between the time of Renard's accident and the release from the hospital, the police could have timely performed the requested second breath test.

Summary of this case from State v. Stary

In State v. Renard, 123 Wis.2d 458, 367 N.W.2d 237 (Ct.App. 1985), a police officer arrested Renard at a hospital that was treating him for injuries sustained in an automobile accident.

Summary of this case from State v. Stary
Case details for

State v. Renard

Case Details

Full title:STATE of Wisconsin, Plaintiff-Appellant, v. Steven J. RENARD…

Court:Court of Appeals of Wisconsin

Date published: Mar 12, 1985

Citations

123 Wis. 2d 458 (Wis. Ct. App. 1985)
367 N.W.2d 237

Citing Cases

State v. Schmidt

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