                                                                2013 WI 106

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2012AP1426
COMPLETE TITLE:         In the matter of the refusal of Brandon H.
                        Bentdahl:

                        State of Wisconsin,
                                  Plaintiff-Appellant-Petitioner,
                             v.
                        Brandon H. Bentdahl,
                                  Defendant-Respondent.



                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 345 Wis. 2d 848, 826 N.W.2d 123
                                  (Ct. App. 2012 – Unpublished)

OPINION FILED:          December 27, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          October 15, 2013

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:

ATTORNEYS:
       For     the      plaintiff-appellant-petitioner,   the   cause   was
argued by Michael C. Sanders, assistant attorney general, with
whom on the briefs was J.B. Van Hollen, attorney general, and
oral argument by Michael C. Sanders.


       For the defendant-respondent, there was a brief by Barry S.
Cohen, and Barry S. Cohen, S.C., Elkhart Lake, and oral argument
by Barry S. Cohen.
                                                                     2013 WI 106
                                                              NOTICE
                                               This opinion is subject to further
                                               editing and modification.   The final
                                               version will appear in the bound
                                               volume of the official reports.
No.   2012AP1426
(L.C. No.   2010TR8034R)

STATE OF WISCONSIN                         :             IN SUPREME COURT

In the matter of the refusal of Brandon H.
Bentdahl:



State of Wisconsin,                                                FILED
             Plaintiff-Appellant-Petitioner,
                                                              DEC 27, 2013
      v.
                                                                 Diane M. Fremgen
                                                              Clerk of Supreme Court
Brandon H. Bentdahl,

             Defendant-Respondent.




      REVIEW of a decision of the Court of Appeals.               Modified and

affirmed and, as modified, cause remanded.



      ¶1     N.   PATRICK   CROOKS,   J.   This     is    a    review      of     an

unpublished court of appeals' decision that reversed the circuit

court.1     The petitioner, the State, asks this court to determine



      1
       State v. Bentdahl, No. 2012AP1426, unpublished slip op.
(Wis. Ct. App. Dec. 6, 2012).
                                                                          No.    2012AP1426



whether    State        v.       Brooks2   applies    when     a   defendant     fails   to

request    a     refusal         hearing    within    the     statutory   ten-day     time

limit     and     chooses         to   plead    not    guilty      to   the     underlying

operating a motor vehicle while intoxicated (OWI) or OWI-related

offense.        The State further asks this court to determine whether

Brooks continues to be good law considering Wisconsin's implied

consent statute, Wis. Stat. § 343.305 (2009-10).3

     ¶2         This case arises from Brandon H. Bentdahl's refusal

to consent to chemical testing to determine his blood alcohol

level at the time of his November 17, 2010, arrest for OWI and

operating        with        a     prohibited       alcohol    concentration        (PAC).

Bentdahl pleaded not guilty to the OWI and PAC charges; he did

not request a hearing on the refusal charge within the ten-day

time limit.

     ¶3        After a jury acquitted Bentdahl of the OWI and PAC

charges, the Columbia County Circuit Court, the Honorable Alan

J. White, presiding, granted Bentdahl's motion to dismiss the

refusal charge.              It held that an alleged sloppily written date
on the notice informing Bentdahl of the State's intent to revoke

his operating privileges for his refusal, which he received at

the time of his OWI/PAC arrest, both deprived him of proper

     2
       State v. Brooks, 113 Wis. 2d 347, 335 N.W.2d 354 (1983).
In Brooks, this court upheld a circuit court's discretionary
decision to dismiss a refusal charge when the defendant had
already pleaded guilty to the underlying OWI charge by the time
of his refusal hearing. Id. at 348.
     3
       All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.

                                                2
                                                                   No.   2012AP1426



notice and deprived the circuit court of proper jurisdiction.

The court of appeals reversed the circuit court's finding of

improper notice, but remanded the case to the circuit court for

that court to exercise its discretion as to whether to dismiss

the refusal charge.

    ¶4       The State appealed, arguing that the court of appeals

improperly     extended     the    holding     in   Brooks   when,    relying    on

Brooks, it instructed the circuit court to determine whether it

would exercise its discretion to dismiss the refusal charge.

The State asks this court to hold that Brooks does not extend to

situations where a defendant is acquitted of the underlying OWI

and OWI-related charge at trial.               In addition, the State asks

this court to clarify whether Brooks is still good law.

    ¶5       Bentdahl argues that these questions are not properly

before this court.          He maintains that the court of appeals'

decision     was   not   adverse    to   the   State   and   the     State   cannot

appeal such a decision.            As we will address, we conclude that

the court of appeals' decision was, in part, adverse to the
State; therefore, the State may appeal.                In addition, Bentdahl

argues that this case is not ripe for review and that the unique

facts   of    this   case   make    review     unnecessary;    however,      these

arguments are both undeveloped.              Typically, this court does not

address undeveloped arguments, State v. Gracia, 2013 WI 15, ¶28,

n.13, 345 Wis. 2d 488, 826 N.W.2d 87, and we decline to do so in

this instance.

    ¶6       We do not review the court of appeals' decision that
notice was proper in this case, since that issue is not before
                                         3
                                                                   No.     2012AP1426



us.   The State's petition for review asked this court to address

two issues related to State v. Brooks.                  While Bentdahl opposed

the State's petition for review, he did not ask this court to

review the portion of the court of appeals' decision that found

proper     notice.      Additionally,         neither   party    sets    forth   any

argument regarding notice in the briefing to this court.

      ¶7     We    conclude     that   the     court    of   appeals     improperly

extended the holding of Brooks, when it held that a circuit

court could dismiss a refusal charge under the circumstances

presented by this case.           Under Brooks, a circuit court has the

discretionary authority to dismiss a refusal charge only if the

defendant has already pleaded guilty to the underlying OWI or

OWI-related charge by the time of his or her refusal hearing,

which was timely requested.              Extending Brooks to allow circuit

courts the discretionary authority to dismiss refusal charges in

cases where a defendant has pleaded not guilty to the underlying

OWI, PAC, or other related charge would contravene the purpose

of Wis. Stat. § 343.305, Wisconsin's implied consent statute.
In other words, Brooks, which is longstanding precedent of this

court, applies only when a defendant meets two requirements.

Namely, a defendant must request a refusal hearing within the

statutory     ten-day    time    limit    and    must    plead    guilty    to   the

underlying OWI or OWI-related charge.

      ¶8     The     language    of    Wis.    Stat.    § 343.305(10)      and   our

recent interpretation of that language in Vill. of Elm Grove v.




                                          4
                                                                           No.    2012AP1426



Brefka4     make clear that a circuit court has no discretionary

authority to dismiss a refusal charge when a defendant fails to

request     a    refusal       hearing      within    the   statutory      ten-day       time

period.     Therefore we remand this case to the circuit court with

instructions           to     impose     the    applicable      penalties,        including

revocation        of        Bentdahl's      operating    privileges,        due    to     his

refusal     to    consent        to    chemical      testing    at   the   time     of   his

OWI/PAC arrest, and his failure to request a refusal hearing

within the statutory time period.

                                       I.      Background

      ¶9        The facts of this case are undisputed.                       On November

17, 2010, a Portage police officer arrested Bentdahl for OWI and

PAC   violations.               The      officer     read      Bentdahl    all     of    the

information required by Wis. Stat. § 343.305(4),5                          by using what

is known as the "Informing the Accused" form.                         Bentdahl refused

the officer's request that he consent to a blood test, which is

contrary to Wis. Stat. § 343.305(2).6                       The officer transported




      4
       Vill. of Elm Grove v. Brefka, 2013 WI 54, 348 Wis. 2d 282,
832 N.W.2d 121 (2013).
      5
       Section 343.305(4) provides, in part, "If you refuse to
take any test that this agency requests, your operating
privilege will be revoked and you will be subject to other
penalties."
      6
          Wisconsin Stat. § 343.305(2) provides:

                                                 5
                                                               No.   2012AP1426



Bentdahl to a local hospital, where hospital staff obtained a

blood sample without incident.

       ¶10     Following the blood draw, the officer gave Bentdahl

notice of intent to revoke his operating privileges as required

by Wis. Stat. § 343.305(9).7        Bentdahl did not request a hearing

on the refusal charge within the ten-day time limit set forth in

Wis.       Stat.   § 343.305(9)-(10).       Therefore,   the   circuit   court

revoked his operating privileges on December 17, 2010.


       Implied consent. Any person who is on duty time with
       respect to a commercial motor vehicle or drives or
       operates a motor vehicle upon the public highways of
       this state, or in those areas enumerated in s. 346.61,
       is deemed to have given consent to one or more tests
       of his or her breath, blood or urine, for the purpose
       of determining the presence or quantity in his or her
       blood or breath, of alcohol, controlled substances,
       controlled substance analogs or other drugs, or any
       combination   of    alcohol,  controlled   substances,
       controlled substance analogs and other drugs, when
       requested to do so by a law enforcement officer under
       sub. (3) (a) or (am) or when required to do so under
       sub. (3) (ar) or (b). Any such tests shall be
       administered upon the request of a law enforcement
       officer. The law enforcement agency by which the
       officer is employed shall be prepared to administer,
       either at its agency or any other agency or facility,
       2 of the 3 tests under sub. (3) (a), (am), or (ar),
       and may designate which of the tests shall be
       administered first.
       7
       Pursuant to Wis. Stat. § 343.305(9)4., part of the notice
given to Bentdahl contains the following language:

       That the person may request a hearing on the
       revocation within 10 days by mailing or delivering a
       written request to the court whose address is
       specified in the notice. If no request for a hearing
       is received within the 10-day period, the revocation
       period commences 30 days after the notice is issued.

                                        6
                                                                           No.    2012AP1426



    ¶11     Bentdahl pleaded not guilty to the underlying OWI and

PAC charges.      On January 5, 2012, a jury acquitted him of both

charges.

    ¶12     Approximately       two     weeks      later,        Bentdahl's        counsel

approached the State to discuss what he claimed was a sloppily

written date on the notice Bentdahl received at the time of his

OWI/PAC arrest.       After viewing the date of notice and agreeing

that the officer wrote out the date in a somewhat confusing

fashion, the State agreed not to oppose Bentdahl's motion to

vacate the refusal conviction.               The circuit court later granted

Bentdahl's motion, vacated the refusal conviction, and scheduled

a date for a hearing on the refusal charge.

    ¶13     The   circuit     court     held       a    hearing       on    the    refusal

charge.     Bentdahl      argued      that   the       refusal    charge         should   be

dismissed based on a lack of proper notice or, alternatively,

under Brooks, at the circuit court's discretion.                             The circuit

court    determined    that     the    officer's         poor     penmanship        denied

Bentdahl proper notice; therefore, the circuit court did not
have jurisdiction.        Accordingly, the circuit court dismissed the

refusal charge without reaching Bentdahl's alternative argument

regarding the circuit court's discretion.

    ¶14     The   court    of    appeals      reversed          the    circuit      court,

reasoning that Bentdahl had proper notice.                   The court of appeals

held, "[t]he officer's writing the date as '111710' with a messy

'0' did not make the notice defective."                          State v. Bentdahl,

No. 2012AP1426, unpublished slip op., ¶11 (Wis. Ct. App. Dec. 6,
2012).     It reasoned that "[i]t did not make sense to disregard
                                         7
                                                                   No.     2012AP1426



the ten-day and thirty-day deadlines in the notice by inserting

slashes so as to come up with a date that was ten days before

the incident, when the date without slashes matched the date of

the incident."       Id., ¶10.

    ¶15    The court of appeals, relying on Brooks, then remanded

the case to the circuit court to address Bentdahl's alternative

argument and determine whether that court would exercise its

discretion to dismiss the refusal charge.                 In Brooks, this court

held that a circuit court properly exercised its discretion in

dismissing a refusal charge,

    when it based the dismissal upon the fact that Brooks
    had pleaded guilty to the underlying charge of
    operating a motor vehicle while under the influence of
    an   intoxicant  and,   hence,  the   reason  for  the
    proceedings to impose sanctions for the refusal to
    take the intoxication test had been accomplished.
Brooks, 113 Wis. 2d at 348.               From our holding in Brooks, the

court of appeals reasoned that "[t]hese same purposes may be

served   where   a    court    dismisses        a   refusal   charge     against    a

defendant who was acquitted before the refusal hearing, in a

trial where intoxication evidence was presented, depending on

all of the pertinent facts."          State v. Bentdahl, No. 2012AP1426,

unpublished slip op., ¶12 (Wis. Ct. App. Dec. 6, 2012).

    ¶16    The   State    asks     this    court     to   determine      two   issues

related to Brooks.           First, whether circuit courts can dismiss

refusal charges when the defendant pleads not guilty to the

underlying   OWI,     PAC,    or   other       OWI-related    charges.         Second,

whether the discretionary authority granted to circuit courts



                                           8
                                                                No.    2012AP1426



under Brooks' holding is consistent with the mandatory language

of Wis. Stat. § 343.305(9)-(10).

                            II.    Standard of Review

    ¶17      This case requires us to interpret the meaning of

Wis. Stat. § 343.305, Wisconsin's implied consent statute.                  "The

interpretation of a statute presents a question of law, which we

review de novo."           Meriter Hosp., Inc. v. Dane Cnty., 2004 WI

145, ¶12, 277 Wis. 2d 1, 689 N.W.2d 627.              "Although we consider

this question independent of the decisions of the circuit court

and the court of appeals, we nevertheless benefit from their

analyses."    Id.

                                   III. Analysis

                                          A.

    ¶18     We are asked to interpret Wisconsin's implied consent

statute and determine whether circuit courts have discretionary

authority    to    dismiss    refusal    charges   under   different    factual

circumstances      from    those    we   previously   addressed   in    Brooks.

Wisconsin's implied consent statute provides that, by driving on
Wisconsin's public roads, drivers give consent to "one or more

tests of his or her breath, blood or urine" to identify the

presence of intoxicating substances in his or her system if

requested     by     law     enforcement.      Wis.     Stat.   § 343.305(2).

Recently, we explained Wis. Stat. § 343.305 succinctly:

    Upon arrest of a person for violation of an OWI-
    related statute, a law enforcement officer may request
    the person to provide a blood, breath, or urine sample
    for chemical testing. Wis. Stat. § 343.305(3)(a). At
    the time of the request for a sample, the officer must
    read to the person certain information set forth in

                                         9
                                                                       No.    2012AP1426


     § 343.305(4), referred to as the Informing the Accused
     form.

     If the person submits to chemical testing and the test
     reveals the presence of a detectable amount of a
     restricted   controlled  substance   or  a  prohibited
     alcohol concentration, the person is subjected to an
     administrative suspension of his operating privileges.
     Wis. Stat. § 343.305(7)(a). The person has the right
     to an administrative hearing and to judicial review.
     Wis. Stat. § 343.305(8). The administrative hearing is
     limited to certain issues that are set forth by
     statute. Wis. Stat. § 343.305(8)(b)2.

     If, on the other hand, the person refuses to submit to
     chemical testing, he is informed of the State's intent
     to immediately revoke his operating privileges. Wis.
     Stat. § 343.305(9)(a). The person is also informed
     that he may request a refusal hearing in court. Wis.
     Stat. § 343.305(9)(a)4.

State v. Anagnos, 2012 WI 64, ¶¶22-24, 341 Wis. 2d 576, 815
N.W.2d 675 (footnote omitted) (describing the 2009-10
version of Wis. Stat. § 343.305).
                                          B.

     ¶19   We note that, although the facts of this case involve

a   warrantless      blood       draw     to      determine       blood         alcohol

concentration, the Fourth Amendment is not at issue in this

case.      Just    last     term,   the      United      States    Supreme        Court

considered whether a warrantless blood draw from a suspected

drunk   driver    could     be   upheld        under    the    Fourth        Amendment.

Missouri v. McNeely, 133 S. Ct. 1552 (2013).                      The warrantless

blood draw in this case occurred on November 17, 2010, before

the April 17, 2013, McNeely decision and we reiterate that our

decision   today     does     not   consider           any    issues     related     to

warrantless blood draws.




                                        10
                                                                        No.   2012AP1426



      ¶20    Bentdahl        challenges    whether     this      case    is   properly

before this court.           Specifically, Bentdahl argues that the court

of   appeals'     decision       was     not    adverse     to    the     State    and,

therefore,    the     State     cannot    appeal     that   determination.            The

State     contends    that     the   court      of   appeals     determination        was

adverse, in part, to its position.

      ¶21    As a preliminary matter, we hold that the court of

appeals issued a decision that was partially adverse to the

State, which is sufficient to allow the State to appeal.                                A

party may appeal "an adverse decision of the court of appeals"

to   this   court.       Wis.    Stat.     § 809.62(1m)(a).             The   Wisconsin

statutes     define     an    adverse     decision     as   "a     final      order    or

decision     of   the   court     of     appeals,     the   result      of    which    is

contrary, in whole or in part, to the result sought in that

court by any party seeking review."                  Wis. Stat. § 806.62(1g)(a)

(emphasis added).            Furthermore, an adverse decision "includes

the court of appeals' denial of or failure to grant the full

relief sought or the court of appeals' denial of the preferred
form of relief."8        Wis. Stat. § 806.62(1g)(b).               Here, the court

      8
       We have previously clarified the meaning of an adverse
decision in both Neely v. State, 89 Wis. 2d 755, 279 N.W.2d 255
(1979) and State v. Castillo, 213 Wis. 2d 488, 570 N.W.2d 44
(1997). In Neely, we determined that the meaning of "decision"
is properly considered as the result reached by the deciding
court and we held that "a party to whom the result is favorable
may not petition for review of the decision simply because that
party disagrees with the rationale expressed in the opinion."
Neely, 89 Wis. 2d at 758.     In Castillo, we further clarified
that an adverse decision does not result merely because the
court of appeals determined that certain issues were unnecessary
to reach. Castillo, 213 Wis. 2d at 492.

                                           11
                                                                       No.        2012AP1426



of appeals ruled in favor of the State on the issue of notice.

However, the court of appeals also remanded the case to the

circuit court for that court to exercise its discretion as to

whether to dismiss Bentdahl's refusal charge.                     This is not the

relief requested by the State.              Instead the State had requested

that the court of appeals instruct the circuit court to enter a

refusal      conviction      against    Bentdahl.       The   court     of        appeals'

instructions were a part of its decision, which denied the State

the full relief that it sought; therefore, the State may appeal.

                                           C.

       ¶22    We    next   consider     several    issues     related        to    Brooks.

First, we consider whether Brooks grants discretionary authority

to circuit courts to dismiss refusal charges when the defendant

chooses to plead not guilty to the underlying OWI or OWI-related

charge.       Second, we determine whether               Brooks   applies when            a

defendant does not request a refusal hearing within the ten-day

time   limit.        Finally,    we     consider    whether    Brooks        should      be

overruled.
       ¶23    The State argues that the court of appeals improperly

extended the holding of Brooks when it remanded this case to the

circuit court with instructions to decide whether or not it

would choose to exercise its discretion to dismiss the refusal

charge.       The    State    asserts    that     the   purpose   of    the        implied

consent statute is to gather evidence to secure convictions and

remove drunk drivers from Wisconsin roads.                  It concludes that an

extension of Brooks to the facts of this case does not achieve


                                          12
                                                                  No.     2012AP1426



the purpose of the implied consent statute, but rather, would

encourage drivers to refuse to consent to chemical testing.

       ¶24   Furthermore, the State contends that that language of

Wis. Stat. § 343.305(9)-(10), as interpreted by Brefka, 348 Wis.

2d 282, ¶4, does not allow a circuit court any discretionary

authority, and that we must either overturn Brooks or limit its

application to the 1979-80 version of the Wisconsin statutes,

which    that   case    considered.      For    these       reasons,    the    State

contends that the court of appeals should have remanded this

case    to   the   circuit   court    with   instructions        to    impose    the

applicable penalties against Bentdahl on the refusal charge.

       ¶25   In contrast, Bentdahl asks this court to affirm the

court of appeals' instructions to the circuit court.                           Under

Bentdahl's interpretation,          Brooks   grants circuit courts broad

discretionary authority to dismiss refusal charges regardless of

the way the related OWI charges are resolved.                  This discretion,

Bentdahl argues, is not limited to the factual circumstances

contemplated       in   Brooks.        Finally,    Bentdahl           argues    that
overturning        Brooks    and     eliminating        a     circuit      court's

discretionary      authority   to     dismiss   refusal       charges     entirely

would unnecessarily clog courts by discouraging guilty pleas to

OWI-related offenses.

       ¶26   We agree with the State that the court of appeals

improperly extended the holding of Brooks when it applied it to

the facts of this case.            We hold that circuit courts have no

discretionary      authority   to    dismiss    refusal       charges    when    the
defendant chooses to plead not guilty to the underlying OWI or
                                       13
                                                                           No.       2012AP1426



OWI-related charge.         We further hold that a circuit court has no

discretionary       authority     to    dismiss       refusal     charges            when   the

defendant fails to request a refusal hearing within the ten-day

time limit.       However, as we will explain, we decline the State's

invitation to overrule Brooks.

      ¶27    In   Brooks,    this      court    considered      whether          a    circuit

court had abused its             discretion when it dismissed a refusal

charge against a defendant who had already pleaded guilty to the

underlying OWI charge at the time of his refusal hearing, which

he had timely requested.               Brooks, 113 Wis. 2d at 348-49; Wis.

Stat.    §   343.305(3)(b)4.        (1979-80)     (requiring         that        a    refusal

hearing be requested "on or prior to the citation return date").

In   that case, we held that the circuit court "appropriately

exercised its discretion."              Brooks, 113 Wis. 2d at 348.                         Our

analysis focused on the purpose of the implied consent statute

and the fact that the defendant in Brooks had pleaded guilty to

the underlying OWI charge.             See id. at 348-49.

      ¶28    The purpose of Wisconsin's implied consent statute is
to encourage drivers, upon a request by law enforcement, to

submit to chemical testing.              Id. at 348.           This allows for the

efficient     gathering     of    evidence      that     may    be   used        to    secure

drunk-driving convictions.              Id.; State v. Neitzel, 95 Wis. 2d

191, 203, 289 N.W.2d 828 (1980).

      ¶29    Having established the purpose of the implied consent

statute,     to   secure    OWI-related        convictions,       our      reasoning          in

Brooks   then     turned    to    whether      this     purpose      was     met       when   a
defendant     had   already      pleaded       guilty    to    the    underlying            OWI
                                          14
                                                                     No.    2012AP1426



charge at the time of his or her refusal hearing.                         Brooks, 113

Wis. 2d at 353-57.            We found "[i]f the person who is charged

with   OWI   .     .   .   subsequently   pleads    guilty,       there    no    longer

remains a need for penalties for failure to submit to a test

which has become unnecessary in the particular case."                            Id. at

348-49.

       ¶30   The       reasoning   in     Brooks    did     not     broadly       grant

discretionary authority to circuit courts.                     See    id.       at 359.

Instead the specific reasoning in Brooks was tied to the fact

that the defendant pleaded guilty to the underlying OWI charge

by the time of his refusal hearing, which he timely requested.

See id.      In Brooks, this court repeatedly reasoned that the

purpose of the implied consent statute, to gather evidence to

convict drunk drivers, was served when the defendant pleaded

guilty to the underlying OWI charge.               Id.    In Brooks we stated:

       Accordingly, we conclude that the general purpose
       behind the laws relating to operating while under the
       influence of intoxicants and implied consent to take
       alcohol tests—to get drunk drivers off the road as
       expeditiously as possible and with as little possible
       disruption of the court's calendar—is best served by
       the exercise of discretion in the dismissal of a
       refusal case once there has been a plea of guilty to
       the OWI charge.
Id.

       ¶31   The reasoning in Brooks applies only when a defendant

enters a guilty plea to the underlying OWI or OWI-related charge

and when the defendant complies with the statutory time limit to

request a refusal hearing.                Unlike Brooks, Bentdahl did not
plead guilty to the underlying OWI or PAC charges, and unlike

                                          15
                                                                            No.     2012AP1426



Brooks, Bentdahl did not request a refusal hearing within the

ten-day time limit set forth in Wis. Stat. § 343.305(9)-(10).

The   policy    reasons     for     allowing         circuit      courts     discretionary

authority to dismiss refusal charges simply do not apply when a

defendant chooses to plead not guilty.                       This is especially true

when a defendant, like Bentdahl, is acquitted of the underlying

OWI-related     charges.           In    other      words,       giving    circuit    courts

discretionary        authority          to    dismiss       refusal       charges    when   a

defendant pleads not guilty to the underlying OWI-related charge

would eliminate a great deal of the incentive to comply with the

implied consent statute.

      ¶32   Furthermore,          the        language       of    the     implied    consent

statute governing court-ordered penalties for refusal does not

grant discretionary authority to circuit courts.                            See Wis. Stat.

§ 343.305(9)-(10).          Wisconsin Stat. § 343.305(10) provides, in

part,   "[i]f       no   hearing    was       requested,         the    revocation    period

shall begin 30 days after the date of the refusal."                               Wis. Stat.

§ 343.305(10) (emphasis added).                     Per the statutory language, if
no hearing is requested within the ten-day time period, then

revocation is mandatory.

      ¶33   This court recently interpreted the language of Wis.

Stat. § 343.305(9)(a)4. and (10)(a) and held that the ten-day

time limit to request a refusal hearing is mandatory and not

subject to excusable neglect.                       Brefka, 348 Wis. 2d 282, ¶4.

Therefore,      a    circuit       court       has     no    competency       to     hear   a

defendant's request to extend the ten-day time period.                              Id.


                                               16
                                                                             No.    2012AP1426



       ¶34        Although    Brefka      considered          the   narrow    question       of

whether       a    defendant     could     extend       the    ten-day      time    limit    to

request a refusal hearing due to excusable neglect, our decision

in Brefka is instructive to our decision today.                              First, Brefka

considered the meaning of "shall" in Wis. Stat. § 343.305(10)(a)9

and    concluded          that    the     word     is     "mandatory"         rather     than

"discretionary."             Id., ¶34.      Therefore, in Brefka, we concluded

that       "Wisconsin     Stat.     § 343.305(9)(a)4.           and   (10)(a)       impose    a

mandatory requirement that the refusal hearing must be requested

within ten days of service of the Notice of Intent.                                 Id., ¶39.

Second, we stated in Brefka that "[t]he penalty for a refusal

followed by a failure to request a refusal hearing within ten

days is also mandatory in requiring that '[i]f no hearing was

requested, the revocation period shall begin 30 days after the

date        of      the      refusal.'"             Id.        (quoting       Wis.      Stat.

§ 343.305(10)(a)).                  The    plain        language       of     Wis.      Stat.

§ 343.305(9)(a)4.             and       (10)(a)         along       with      our      recent

interpretation of that language in Brefka leads us to conclude
that a circuit court has no discretionary authority to dismiss a




       9
       The relevant portion of Wis. Stat. § 343.305(10)(a)
provides: "If no hearing was requested, the revocation period
shall begin 30 days after the date of the refusal." (emphasis
added).

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refusal     charge   if   the   defendant   does   not   request      a    refusal

hearing within the statutory ten-day time limit.10

      ¶35    Finally, we decline the State's invitation to overrule

Brooks.      As previously discussed, Brooks is not applicable to

this case since it presented a totally different fact situation.

We see no reason to disturb the holding in Brooks.               Our decision

in Brooks is longstanding precedent that fosters plea agreements

in OWI and OWI-related cases.          As we stated in Brooks, when a

defendant has pleaded guilty to the underlying OWI charge or

charges by the time of the refusal hearing, "the exercise of

discretion . . . by the trial court may well have the tendency

to   increase   OWI   convictions     as    well   as   to   conserve      limited

judicial resources by encouraging guilty pleas and reducing the

number of time consuming refusal hearings."              Brooks, 113 Wis. 2d


      10
       Although under Wis. Stat. § 967.055(2) a prosecutor may
petition the court for a dismissal of a refusal charge, which a
court seemingly could grant upon a finding that dismissal is in
the public interest, the plain language of Wis. Stat.
§ 343.305(9)(a)4.   and   (10)(a)   along   with   our   recent
interpretation of those statutory provisions in Brekfa lead us
to conclude that a circuit court has no discretionary authority
to dismiss a refusal charge if the defendant does not request a
refusal hearing within the statutory ten-day time limit.
Compare Wis. Stat. § 967.055 with Wis. Stat. § 343.305(9)(a)4.
and (10)(a) and Brefka, 348 Wis. 2d 282, ¶¶4, 39. In addition,
the defendant must also plead guilty to the underlying OWI or
OWI-related charge.

     We do recognize, however, that factual circumstances
distinct from those at issue today may arise, which make a
request for a refusal hearing within the ten-day time limit or
entry of a plea of guilty impossible. We do not decide what the
discretionary authority of the circuit court would be under such
circumstances.

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at 357.     Brooks continues to grant circuit courts discretionary

authority to dismiss refusal charges when a defendant requests a

hearing     within    the    statutory      ten-day     time   period      and   pleads

guilty to the underlying OWI or OWI-related offense.

                                   IV.    Conclusion

      ¶36    We do not review the court of appeals' decision that

notice was proper in this case, since that issue is not before

us.   We conclude, however, that the court of appeals improperly

extended the holding of Brooks, when it held that a circuit

court could dismiss a refusal charge under the circumstances

presented by this case.             Under Brooks, a circuit court has the

discretionary authority to dismiss a refusal charge only if the

defendant has already pleaded guilty to the underlying OWI or

OWI-related charge at the time of his or her refusal hearing,

which was requested timely.                Extending Brooks to allow circuit

courts the discretionary authority to dismiss refusal charges in

cases where a defendant has pleaded not guilty to the underlying

OWI, PAC, or other related charge would contravene the purpose
of Wis. Stat. § 343.305, Wisconsin's implied consent statute.

In other words, Brooks, which is longstanding precedent of this

court, applies only when a defendant meets two requirements.

Namely, a defendant must request a refusal hearing within the

statutory     ten-day       time   limit    and   must      plead   guilty       to   the

underlying OWI or OWI-related charge.

      ¶37    The     language      of    Wis.   Stat.   §   343.305(10)      and      our

recent interpretation of that language in Brefka make clear that
a circuit court has no discretionary authority                       to dismiss a
                                           19
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refusal    charge   when     a   defendant    fails     to   request    a    refusal

hearing within the statutory ten-day time period.                  Therefore we

remand    this   case   to   the    circuit     court   with   instructions        to

impose    the    applicable        penalties,     including      revocation        of

Bentdahl's operating privileges, due to his refusal to consent

to chemical testing at the time of his OWI/PAC arrest, and his

failure to request a refusal hearing within the statutory time

period.



  By the Court.—The decision of the court of appeals is modified

and affirmed and, as modified, the cause remanded to the circuit

court.




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