refusal hearing in Wisconsin

2025Specifically, Hull argues that “[i]f Mr. Hull operated a motor vehicle, there is nothing to support that Mr. Hull was under the influence of any intoxicants when doing so.” ¶16 In the context of a refusal hearing, “[p]robable cause exists where the totality of the circumstances within the arresting officer’s knowledge at the time of the arrest would lead a reasonable police officer to believe … that the defendant was operating a motor vehicle while under the influence of an intoxicant.” State v. Nordness, 128 Wis. 2d 15, 35 , 381 N.W.2d 300 (1986). “‘The evidence need not reach the level of pr

2025Specifically, Hull argues that “[i]f Mr. Hull operated a motor vehicle, there is nothing to support that Mr. Hull was under the influence of any intoxicants when doing so.” ¶16 In the context of a refusal hearing, “[p]robable cause exists where the totality of the circumstances within the arresting officer’s knowledge at the time of the arrest would lead a reasonable police officer to believe … that the defendant was operating a motor vehicle while under the influence of an intoxicant.” State v. Nordness, 128 Wis. 2d 15, 35 , 381 N.W.2d 300 (1986). “‘The evidence need not reach the level of pr

2025See, e.g., State v. Blatterman, 2015 WI 46, ¶17 , 362 Wis. 2d 138 , 864 N.W.2d 26 (“the State bears the burden of proving that the seizure complied with the Fourth Amendment and Article I, Section 11” of the Wisconsin Constitution); State v. Wille, 185 Wis. 2d 673, 682 , 518 N.W.2d 325 (Ct. App. 1994) (“the State’s burden of persuasion at a suppression hearing is significantly greater than … at a refusal hearing”).

2025See, e.g., State v. Blatterman, 2015 WI 46, ¶17 , 362 Wis. 2d 138 , 864 N.W.2d 26 (“the State bears the burden of proving that the seizure complied with the Fourth Amendment and Article I, Section 11” of the Wisconsin Constitution); State v. Wille, 185 Wis. 2d 673, 682 , 518 N.W.2d 325 (Ct. App. 1994) (“the State’s burden of persuasion at a suppression hearing is significantly greater than … at a refusal hearing”).

2024See State v. Anagnos, 2012 WI 64, ¶27 , 341 Wis. 2d 576 , 815 N.W.2d 675 ; § 343.305(9)(a)5., (c). 8 ¶21 The State’s burden of proof at a refusal hearing is to show that the arresting officer’s “account is plausible, and the [circuit] court will not weigh the evidence for and against probable cause or determine the credibility of the witnesses.” See Wille, 185 Wis. 2d at 681 .

2024See State v. Anagnos, 2012 WI 64, ¶27 , 341 Wis. 2d 576 , 815 N.W.2d 675 ; § 343.305(9)(a)5., (c). 8 ¶21 The State’s burden of proof at a refusal hearing is to show that the arresting officer’s “account is plausible, and the [circuit] court will not weigh the evidence for and against probable cause or determine the credibility of the witnesses.” See Wille, 185 Wis. 2d at 681 .

2024See State v. Woods, 117 Wis. 2d 701, 710 , 345 N.W.2d 457 (1984) (whether there was “probable cause … is a question of law that is subject to independent review on appeal”). ¶19 At a refusal hearing, “[p]robable cause, although not easily reducible to a stringent, mechanical definition, generally refers to ‘that quantum of evidence which would lead a reasonable police officer to believe that the defendant probably committed a crime.’” State v. Nordness, 128 Wis. 2d 15, 35 , 381 N.W.2d 300 (1986) (quoted source omitted).

2024See State v. Woods, 117 Wis. 2d 701, 710 , 345 N.W.2d 457 (1984) (whether there was “probable cause … is a question of law that is subject to independent review on appeal”). ¶19 At a refusal hearing, “[p]robable cause, although not easily reducible to a stringent, mechanical definition, generally refers to ‘that quantum of evidence which would lead a reasonable police officer to believe that the defendant probably committed a crime.’” State v. Nordness, 128 Wis. 2d 15, 35 , 381 N.W.2d 300 (1986) (quoted source omitted).

2013See State v. Schoepp, 204 Wis. 2d 266, 268, 272 , 554 N.W.2d 236 (Ct. App. 1996) (concluding that civil discovery procedures applied to a prior version of the refusal hearing statute because the prior statute neither provided for a different means of discovery nor provided that discovery is unavailable).

2013See State v. Schoepp, 204 Wis. 2d 266, 268, 272 , 554 N.W.2d 236 (Ct. App. 1996) (concluding that civil discovery procedures applied to a prior version of the refusal hearing statute because the prior statute neither provided for a different means of discovery nor provided that discovery is unavailable).

2020See Village of Elm Grove v. Brefka, 2013 WI 54 , 348 Wis. 2d 282 , 832 N.W.2d 121 (2013).

2020See Village of Elm Grove v. Brefka, 2013 WI 54 , 348 Wis. 2d 282 , 832 N.W.2d 121 (2013).

2017The court of appeals wrote: "The fact that Blackman could have prevailed at a refusal hearing due to the legislature's failure to amend the refusal hearing statute does not transform Blackman's freely given actual consent under Wisconsin's implied consent law into a coerced submittal." Blackman, 371 Wis. 2d 635, ¶12 (emphasis added). 19 No. 2015AP450-CR B ¶52 We next determine whether Blackman's consent to the blood draw was obtained through misrepresentation, rendering his consent coerced, that is, not voluntarily and freely given under the Fourth Amendment. ¶53 Blood draws are searches under

2017The court of appeals wrote: "The fact that Blackman could have prevailed at a refusal hearing due to the legislature's failure to amend the refusal hearing statute does not transform Blackman's freely given actual consent under Wisconsin's implied consent law into a coerced submittal." Blackman, 371 Wis. 2d 635, ¶12 (emphasis added). 19 No. 2015AP450-CR B ¶52 We next determine whether Blackman's consent to the blood draw was obtained through misrepresentation, rendering his consent coerced, that is, not voluntarily and freely given under the Fourth Amendment. ¶53 Blood draws are searches under

2017The court of appeals wrote: "The fact that Blackman could have prevailed at a refusal hearing due to the legislature's failure to amend the refusal hearing statute does not transform Black-man's freely given actual consent under Wisconsin's implied consent law into a coerced submittal." Blackman, 371 Wis. 2d 635, ¶ 12 (emphasis added).

2017The court of appeals wrote: "The fact that Blackman could have prevailed at a refusal hearing due to the legislature's failure to amend the refusal hearing statute does not transform Blackman's freely given actual consent under Wisconsin's implied consent law into a coerced submittal." Blackman, 371 Wis. 2d 635, ¶12 (emphasis added). 19 No. 2015AP450-CR B ¶52 We next determine whether Blackman's consent to the blood draw was obtained through misrepresentation, rendering his consent coerced, that is, not voluntarily and freely given under the Fourth Amendment. ¶53 Blood draws are searches under

1988In Village of Elkhart Lake v. Borzyskowski, 123 Wis. 2d 185, 193-94 , 366 N.W.2d 506, 510 (Ct. App. 1985), we said: Section 343.305(8)(b), Stats., merely directs trial courts to render a decision as to the issues involved within five days of the refusal hearing.

1988In Village of Elkhart Lake v. Borzyskowski, 123 Wis. 2d 185, 193-94 , 366 N.W.2d 506, 510 (Ct. App. 1985), we said: Section 343.305(8)(b), Stats., merely directs trial courts to render a decision as to the issues involved within five days of the refusal hearing.

2024In this case, Schumacher challenges the circuit court’s conclusions that the officer had probable cause to arrest him—and therefore that the arrest was lawful—and that he “refused to permit the test” when he had agreed to instead provide a urine sample. ¶18 “In the context of a refusal hearing following an arrest for operating a motor vehicle while intoxicated, ‘probable cause’ refers generally to that quantum of evidence that would lead a reasonable law enforcement officer to believe that the defendant was operating a motor vehicle while under the influence of an intoxicant.” Washburn County

2024In this case, Schumacher challenges the circuit court’s conclusions that the officer had probable cause to arrest him—and therefore that the arrest was lawful—and that he “refused to permit the test” when he had agreed to instead provide a urine sample. ¶18 “In the context of a refusal hearing following an arrest for operating a motor vehicle while intoxicated, ‘probable cause’ refers generally to that quantum of evidence that would lead a reasonable law enforcement officer to believe that the defendant was operating a motor vehicle while under the influence of an intoxicant.” Washburn County

2026If a driver refuses a blood test under § 343.305(3)(ar)1., is arrested under § 343.305(3)(a), and requests a refusal hearing, the State must prove at the hearing “that the officer had probable cause to believe that the driver was driving or operating a motor vehicle ‘under the influence.’” See Blackman, 377 Wis. 2d 339, ¶44 ; Gore, 415 Wis. 2d 279 , ¶29. ¶23 Therefore, we now consider whether Deputy Mason had probable cause, at the time he read the Informing the Accused form to Tourtillott, to believe 10 that Tourtillott was driving or operating a motor vehicle while under the influence.8 See

2026If a driver refuses a blood test under § 343.305(3)(ar)1., is arrested under § 343.305(3)(a), and requests a refusal hearing, the State must prove at the hearing “that the officer had probable cause to believe that the driver was driving or operating a motor vehicle ‘under the influence.’” See Blackman, 377 Wis. 2d 339, ¶44 ; Gore, 415 Wis. 2d 279 , ¶29. ¶23 Therefore, we now consider whether Deputy Mason had probable cause, at the time he read the Informing the Accused form to Tourtillott, to believe 10 that Tourtillott was driving or operating a motor vehicle while under the influence.8 See

2026STAT. § 346.65(2)(am); State v. Sparby-Duncan, 2026 WI App 9 , ¶¶3, 28, 419 Wis. 2d 715 , 32 N.W.3d 427 (refusal results in civil penalties); State v. Krause, 2006 WI App 43, ¶9 , 289 Wis. 2d 573 , 712 N.W.2d 67 (“in a refusal hearing, rules of civil, not criminal, procedure apply”). 15 Nos. 2024AP1330 2024AP1331 Ins.

2026STAT. § 346.65(2)(am); State v. Sparby-Duncan, 2026 WI App 9 , ¶¶3, 28, 419 Wis. 2d 715 , 32 N.W.3d 427 (refusal results in civil penalties); State v. Krause, 2006 WI App 43, ¶9 , 289 Wis. 2d 573 , 712 N.W.2d 67 (“in a refusal hearing, rules of civil, not criminal, procedure apply”). 15 Nos. 2024AP1330 2024AP1331 Ins.

2022It is “that quantum of evidence … that would lead a reasonable law enforcement officer to believe that the defendant was operating a motor vehicle while under the influence of an intoxicant.” State v. Lange, 2009 WI 49, ¶19 , 317 Wis. 2d 383 , 766 N.W.2d 551 . 8 No. 2021AP1095 ¶16 Wisconsin cases have explained that “[t]he State’s burden of persuasion at a refusal hearing is substantially less than at a suppression hearing.” State v. Wille, 185 Wis. 2d 673, 681 , 518 N.W.2d 325 (Ct. App. 1994).

2022It is “that quantum of evidence … that would lead a reasonable law enforcement officer to believe that the defendant was operating a motor vehicle while under the influence of an intoxicant.” State v. Lange, 2009 WI 49, ¶19 , 317 Wis. 2d 383 , 766 N.W.2d 551 . 8 No. 2021AP1095 ¶16 Wisconsin cases have explained that “[t]he State’s burden of persuasion at a refusal hearing is substantially less than at a suppression hearing.” State v. Wille, 185 Wis. 2d 673, 681 , 518 N.W.2d 325 (Ct. App. 1994).

2025See State v. Brooks, 113 Wis. 2d 347, 348-49 , 335 N.W.2d 354 (1983) (holding that circuit courts have discretion to dismiss an improper refusal charge where a defendant pleads guilty to an associated OWI charge and has timely requested a refusal hearing).

2025See State v. Brooks, 113 Wis. 2d 347, 348-49 , 335 N.W.2d 354 (1983) (holding that circuit courts have discretion to dismiss an improper refusal charge where a defendant pleads guilty to an associated OWI charge and has timely requested a refusal hearing).

2025See, e.g., State v. Blatterman, 2015 WI 46, ¶17 , 362 Wis. 2d 138 , 864 N.W.2d 26 (“the State bears the burden of proving that the seizure complied with the Fourth Amendment and Article I, Section 11” of the Wisconsin Constitution); State v. Wille, 185 Wis. 2d 673, 682 , 518 N.W.2d 325 (Ct. App. 1994) (“the State’s burden of persuasion at a suppression hearing is significantly greater than … at a refusal hearing”).

2025See, e.g., State v. Blatterman, 2015 WI 46, ¶17 , 362 Wis. 2d 138 , 864 N.W.2d 26 (“the State bears the burden of proving that the seizure complied with the Fourth Amendment and Article I, Section 11” of the Wisconsin Constitution); State v. Wille, 185 Wis. 2d 673, 682 , 518 N.W.2d 325 (Ct. App. 1994) (“the State’s burden of persuasion at a suppression hearing is significantly greater than … at a refusal hearing”).

2024However, “[t]he Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable.” Brar, 376 Wis. 2d 685, ¶15 (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)). “‘[A] search conducted pursuant to consent’” is a “‘well-established exception to the warrant requirement[.]’” Brar, 376 Wis. 2d 685, ¶16 (citation omitted). ¶10 After hearing testimony at the refusal hearing and viewing the body camera footage, the circuit court found that Hernandez did not consent to Benson’s request that he submit to an evidentiary test.

2024However, “[t]he Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable.” Brar, 376 Wis. 2d 685, ¶15 (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)). “‘[A] search conducted pursuant to consent’” is a “‘well-established exception to the warrant requirement[.]’” Brar, 376 Wis. 2d 685, ¶16 (citation omitted). ¶10 After hearing testimony at the refusal hearing and viewing the body camera footage, the circuit court found that Hernandez did not consent to Benson’s request that he submit to an evidentiary test.