Opinion
Appeal No. 02-0497.
November 27, 2002. This opinion will not be published in the official reports. See Wis. Stat. Rule 809.23(1)(b)4.
APPEAL from a judgment of the circuit court for Dane County: DAVID T. FLANAGAN, Judge. Affirmed.
Karen Boedecker appeals the circuit court's order revoking her operator's license for one year under Wis. Stat. § 343.305(10) (1999-2000) on the ground that she refused to submit to a chemical test of her breath following her arrest for driving under the influence of an intoxicant in violation of Wis. Stat. § 346.63(1). Under § 343.305(2), any person operating a motor vehicle is deemed to have given consent to tests to determine the presence or quantity of alcohol in the person's breath or blood when the person is arrested for a violation of § 346.63(1); license revocation is the penalty if a person refuses to submit to the tests after certain statutory conditions and procedures are complied with. Section 343.305(3)-(10). The only issue Boedecker raises on appeal is whether the implied consent statute, § 343.305, is unconstitutional. Boedecker contends it is because it forces an individual to choose between abandoning his or her Fourth Amendment protection against unreasonable searches and seizures and suffering the sanction of lost driving privileges. The trial court concluded it was not unconstitutional, and we affirm.
¶ 2. Whether a statute is constitutional presents a question of law, which we review de novo. State v. Holmes , 106 Wis.2d 31, 41 n. 7, 315 N.W.2d 703, 708 n. 7 (1982).
¶ 3. In Village of Little Chute v. Walitalo , 2002 WI App. 211, ¶¶ 10-11, ___ Wis.2d ___, 650 N.W.2d 891, we held that an individual's consent to a chemical test under Wis. Stat. § 343.305 was not involuntary for Fourth Amendment purposes solely because the individual had to choose between submission to the test and loss of driving privileges. We decided this case after Boedecker filed her first brief. The State relies on Walitalo in its responsive brief to argue that § 343.305 is not unconstitutional. Boedecker has not filed a reply brief to dispute this contention. We take this as a concession that the statute is constitutional, see Fischer v. Wisconsin Patients Compensation Fund , 2002 WI App. 192 ¶ 1 n. 1, ___ Wis.2d ___, 650 N.W.2d 75, and we affirm on that basis.
By the Court. — Judgment affirmed.