                                                                          2013 WI 54

                  SUPREME COURT                OF    WISCONSIN
CASE NO.:                2011AP2888
COMPLETE TITLE:          Village of Elm Grove,
                                   Plaintiff-Respondent,
                              v.
                         Richard K. Brefka,
                                   Defendant-Appellant-Petitioner.

                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 343 Wis. 2d 680, 819 N.W.2d 563
                                  (Ct. App. 2012 – Unpublished)

OPINION FILED:           June 26, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           March 13, 2013

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Waukesha
   JUDGE:                Mark D. Gundrum

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
by   Andrew       Mishlove    and    Lauren   Stuckert,    and   Law   Offices     of
Andrew Mishlove, Glendale, and oral argument by Andrew Mishlove.




       For the plaintiff-respondent, there was a brief by Douglas
Hoffer,      and    de   la   Mora   &   de   la   Mora,   Elm   Grove,    and   oral
argument by Douglas Hoffer.
                                                                                    2013 WI 54
                                                                            NOTICE
                                                            This opinion is subject to further
                                                            editing and modification.   The final
                                                            version will appear in the bound
                                                            volume of the official reports.
No.         2011AP2888
(L.C. No.        2011CV2837)

STATE OF WISCONSIN                                      :              IN SUPREME COURT

Village of Elm Grove,

                 Plaintiff-Respondent,
                                                                                 FILED
        v.
                                                                            JUN 26, 2013
Richard K. Brefka,
                                                                               Diane M. Fremgen
                 Defendant-Appellant-Petitioner.                            Clerk of Supreme Court




        REVIEW of a decision of the Court of Appeals.                          Affirmed.



        ¶1       ANN WALSH BRADLEY, J.              The petitioner, Richard K.
Brefka (Brefka), seeks review of an unpublished opinion of the

court       of    appeals      affirming   a    decision         of   the    circuit      court,
denying Brefka's request for an extension of time.1                                Brefka was

arrested          for    operating     a       vehicle       while      intoxicated           and
apparently          refused     a   chemical     test       to    ascertain         his    blood


        1
       Village  of  Elm  Grove v.   Brefka, No.   2011AP2888,
unpublished slip op, (Ct. App. Jun. 19, 2012), affirming the
circuit court for Waukesha County, Mark D. Gundrum, J.,
presiding.
                                                                          No.     2011AP2888



alcohol concentration. He subsequently filed a request for a

refusal hearing, but did not file his request within ten days

after   he    was     served    with    a   notice     of   intent     to       revoke   his

operating           privileges         as       required          by      Wis.        Stat.

§§ 343.305(9)(a)4. and (10)(a) (2009-10).                      He sought to extend

the time period in which he was allowed to file a request for a

refusal hearing due to excusable neglect.

     ¶2       The circuit court concluded that because Brefka did

not file a request for a refusal hearing within the required

ten-day time limit, it lacked competency to hear his request to

extend that time limit.              It therefore denied Brefka's motion to

extend the ten-day time limit and dismissed his request for a

refusal hearing, remanding the case to the Village of Elm Grove

municipal court (the municipal court) for disposition.

     ¶3       The Village of Elm Grove (the Village) argues that

Wis. Stat. §§ 343.305(9)(a)4. and (10)(a) set forth a mandatory

requirement to request a refusal hearing within the ten-day time

limit that may not be extended due to excusable neglect.                                  It
asserts   that because the             statute       does   not   allow     the    circuit

court to extend the ten-day time limit, the circuit court lacked
competency to hear Brefka's request.

     ¶4       We     conclude       that    the      circuit      court     is     without
competency to hear Brefka's request to extend the ten-day time

limit set forth in Wis. Stat. §§ 343.305(9)(a)4. and (10)(a).
The ten-day time limit is a mandatory requirement that may not

be extended due to excusable neglect.                       Because the mandatory

ten-day      time    limit     is   central     to    the   statutory       scheme,      the
                                            2
                                                                           No.        2011AP2888



circuit    court    lacked       competency       to    hear    Brefka's         request     to

extend it.      Accordingly, we affirm the court of appeals.

                                            I

      ¶5    The facts of this case are undisputed.

      ¶6    On December 12, 2010, law enforcement officers from

the Village arrested Brefka and issued him a "Notice of Intent

to Revoke Operating          Privilege"         (the    Notice      of    Intent).          The

Notice of Intent stated that Brefka had refused a chemical test

and identified the date of refusal as December 12, 2010.                                     It

also notified Brefka that he had ten days from the date of the

notice to file a request for a refusal hearing:

      You refused a request to submit to a test or tests
      under 343.305(3) Wis. Stats. Because of this refusal,
      your operating privilege may be revoked.

      You have 10 days from the date of this notice to file
      a request for a hearing on the revocation with the
      court named below. . . . If you do not request a
      hearing,   the  court   must   revoke  your   operating
      privileges 30 days from the date of this notice.
      ¶7    Brefka       filed     a    request       for   a   refusal      hearing         on

December   28, 2010.          The      municipal       court    scheduled         a    refusal

hearing,    but    the    Village       filed     a    motion      to    strike       Brefka's

request for the refusal hearing because Brefka had not submitted

his   request      within    the       required       ten   days    under    Wis.         Stat.

§§ 343.305(9)(a)4. and (10)(a).2


      2
       All references to the Wisconsin Statutes are to the 2009-
10 version unless otherwise indicated.           Wisconsin Stat.
§ 343.305(9)(a)4. provides as follows, in relevant part:

      (9) Refusals; notice and court hearing. (a) If a
      person refuses to take a test under sub. (3)(a), the
                                            3
                                                                 No.    2011AP2888



     ¶8   Although      Brefka    conceded   that    his        request    for   a

refusal hearing was untimely, he requested that the municipal

court extend the ten-day time limit.          He alleged that "judgment

was entered due to . . . excusable neglect."

     ¶9   At    a   hearing,     the   municipal    court       concluded     that

Brefka's failure to request a refusal hearing within the ten-day

time limit     meant   that it    lacked   competency      to    hear     Brefka's

request to extend the time limit:

     law enforcement officer shall immediately prepare a
     notice of intent to revoke, by court order under sub.
     (10), the person's operating privilege. . . .     The
     notice of intent to revoke the person's operating
     privilege shall contain substantially all of the
     following information:

     . . . .

    4. 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.

     Additionally, Wis. Stat. § 343.305(10)(a) provides as
follows, in relevant part:


    (10) Refusals; court-ordered revocation. (a) If the
    court determines under sub. (9)(d) that a person
    improperly refused to take a test or if the person
    does not request a hearing within 10 days after the
    person has been served with the notice of intent to
    revoke the person's operating privilege, the court
    shall proceed under this subsection. If no hearing was
    requested, the revocation period shall begin 30 days
    after the date of the refusal. If a hearing was
    requested, the revocation period shall commence 30
    days after the date of refusal or immediately upon a
    final determination that the refusal was improper,
    whichever is later.
                                       4
                                                            No.   2011AP2888


       I can't even hear this matter because the refusal
       wasn't requested within the 10 day time frame under
       343.305(9). It wasn't requested within 10 days. . . .
       Counsel for the defense . . . I would like to hear
       from you...I know you're making the request that I
       extend the time limit but when we're talking about
       competency of the court I can't even hear the Motion.
       I don't have competency to do anything on this matter
       and it's my position that I can do nothing.
The municipal court therefore denied Brefka's request to extend

the ten-day time limit and dismissed his request for a refusal

hearing.3

       ¶10    Brefka appealed to the Waukesha County Circuit Court.

The Village filed a motion to dismiss, arguing that the circuit

court lacked competency to hear Brefka's request to extend the

ten-day time limit.

       ¶11    At a motion hearing, the circuit court determined that

it     lacked   competency.       Examining   the   text   of   Wis.   Stat.

§ 343.305(9)(a)4., the circuit court reasoned that the statute

is "very clear, very specific" and that it "clearly says ten

days       without   question."      Accordingly,    the   circuit     court

concluded that it was "without competency to really address the
appeal," and granted the Village's motion to dismiss, remanding

the case to the municipal court for disposition.



       3
       The municipal court hearing transcript is incomplete
because the recording device used at the hearing stopped
recording partway through the hearing without the knowledge of
court personnel. The municipal court's ultimate disposition of
the case is not in the transcript of the hearing, but the
parties agree that the municipal court denied Brefka's request
to extend the ten-day time limit on the ground of competency and
ultimately dismissed his untimely request for a refusal hearing.

                                      5
                                                                           No.     2011AP2888



       ¶12       Brefka appealed to the court of appeals following the

circuit court's determinations.                    The court of appeals affirmed

the circuit court, concluding that "[t]he plain language of the

statute is abundantly clear."                 Village of Elm Grove v. Brefka,

No.    2011AP2888,        unpublished       slip    op,    ¶6    (Ct.     App.   Jun.     19,

2012).       Wisconsin Stat. §§ 343.305(9)(a)4. and (10)(a) "impose a

mandatory obligation on the circuit court to revoke a person's

operating privilege if he or she does not file a request for a

refusal      hearing      within     ten   days    of     the    notice    of    intent   to

revoke."         Id., ¶10.      The court of appeals noted that the ten-day
time limit is a "different procedure" from the general rules of

civil procedure, and that pursuant to Wis. Stat. § 801.01(2),

the    rules      of    civil   procedure     that       allow    for     relief    due   to

excusable neglect do not apply.4                   Id.     Ultimately, it concluded

that       the   circuit     court    lacked       competency       to    hear     Brefka's

request to extend the ten-day time limit, stating that "failure

to     observe         statutory     time     limits       deprives        a     court    of

competency."           Id., ¶13.

                                             II



       4
           Wisconsin Stat. § 801.01(2) states the following:

       (2) Scope. Chapters 801 to 847 govern procedure and
       practice in circuit courts of this state in all civil
       actions and special proceedings whether cognizable as
       cases at law, in equity or of statutory origin except
       where different procedure is prescribed by statute or
       rule. Chapters 801 to 847 shall be construed to secure
       the just, speedy and inexpensive determination of
       every action and proceeding.

                                             6
                                                                           No.    2011AP2888



        ¶13   In this case, we are called upon to review whether the

circuit court has competency to hear Brefka's motion to extend

the ten-day        time limit for            requesting      a   refusal     hearing     set

forth    in   Wis.       Stat.    §§ 343.305(9)(a)4.             and    (10)(a)    due    to

excusable neglect.           Whether a court has competency presents a

question      of     law     that       we     review        independently        of     the

determinations of the circuit court and the court of appeals.

Village of Trempealeau v. Mikrut, 2004 WI 79, ¶7, 273 Wis. 2d

76, 681 N.W.2d 190.

        ¶14   In order to determine whether the circuit court has

competency, we must interpret Wis. Stat. § 343.305, also known

as the implied consent law.                   The interpretation of a statute

presents a question of law, which we also review independently

of   the determinations           rendered        by   the   circuit     court    and    the

court of appeals.          State v. Leitner, 2002 WI 77, ¶16, 253 Wis.

2d 449, 646 N.W.2d 341.

                                             III

        ¶15   The Village argues that the circuit court does not

have competency to hear Brefka's request to extend the ten-day

time    limit      set    forth    in    Wis.      Stat.     §§ 343.305(9)(a)4.          and

(10)(a).      It advances that the ten-day time limit to request a

refusal hearing and the subsequent requirement that operating

privileges be revoked commencing 30 days after refusal if no

hearing is requested are mandatory requirements.                             Finally, it

contends that the mandatory nature of the statutory requirements

demonstrates       that    the    legislative          purpose     of    the     statutory


                                              7
                                                                                No.    2011AP2888



scheme can be fulfilled only if the ten-day time limit cannot be

extended due to excusable neglect.

       ¶16       The circuit court's determination of competency refers

to    its    "ability        to    exercise       the    subject     matter      jurisdiction

vested      in       it"    by    Article    VII,       Section      8    of    the    Wisconsin

Constitution.              Mikrut, 273 Wis. 2d 76, ¶9.                   That section of the

constitution states that "[e]xcept as otherwise provided by law,

the    circuit         court      shall     have       original    jurisdiction          in   all

matters civil and criminal within this state."                              Wis. Const. art.

VII, § 8.            Although the circuit court may not be deprived of

jurisdiction "[e]xcept as otherwise provided by law," it may

lack competency to render a valid order or judgment in a civil

or    criminal         matter      when     the    parties     fail        to   meet    certain

statutory requirements.5               Mikrut, 273 Wis. 2d 76, ¶9.
       ¶17       A    statutory      time     limit       is   one       type   of     statutory

requirement that may result in a loss of the circuit court's

competency, if a party fails to satisfy it.                              Id., ¶13.      However,

noncompliance with a mandatory statute does not always translate

into a loss of competency.                    State v. Bollig, 222 Wis. 2d 558,

566, 587 N.W.2d 908 (Ct. App. 1998) (citing State v. Kywanda F.,

200 Wis. 2d 26, 33, 546 N.W.2d 440 (1996)).                                     Sometimes the


       5
       However, this court has urged that "the critical focus is
not . . . on the terminology used to describe the court's power
to proceed in a particular case. The focus is on the effect of
non-compliance with a statutory requirement on the circuit
court's power to proceed."     Miller Brewing Co. v. LIRC, 173
Wis. 2d 700, 705 n.1, 495 N.W.2d 660 (1993) (describing the
differences between subject matter jurisdiction and competency).

                                                   8
                                                        No.     2011AP2888



"legislative purpose of the statutory scheme [can] be fulfilled,

without strictly following the statutory directive."              Id. at

567-68.

     ¶18   To   determine     whether   the   circuit   court     lacked

competency to hear Brefka's motion to extend the ten-day time

limit set forth in Wis. Stat. §§ 343.305(9)(a)4. and (10)(a), we

must evaluate "the effect of noncompliance on the court's power

to proceed in the particular case before the court."             Mikrut,

273 Wis. 2d 76, ¶10.        Failures to abide by statutory mandates

that are "central to the statutory scheme" of which they are a

part will deprive the circuit court of competency.      Id.

     ¶19   We therefore look to the requirements imposed by the

relevant statutory scheme to evaluate whether the circuit court

has competency to hear Brefka's motion that the ten-day time

limit be extended due to excusable neglect.         The ten-day time

limit is set forth in Wis. Stat. § 343.305, also known as the

implied consent law.   This court recently summarized the general

procedures contained in the implied consent law as follows:

    Wisconsin Statute § 343.305, known as the implied
    consent law, provides that any person who drives on
    the public highways of this state is deemed to have
    consented to chemical testing upon request by a law
    enforcement officer. 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 § 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
                                   9
                                                                   No.   2011AP2888


     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.         This case concerns a single, narrow aspect of the

procedures set forth in the implied consent law——the required

time period in which a person must request a refusal hearing

after refusing to submit to chemical testing.6

        ¶20      A person must file a request for a refusal hearing

within ten days after the service of the Notice of Intent in

order       to    proceed   to    a   refusal    hearing   under     Wis.    Stat.

§ 343.305(9)(a)4.           A    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,"

but "[i]f no request for a hearing is received within the 10-day

period, the revocation period commences 30 days after the notice

is issued."        Wis. Stat. § 343.305(9)(a)4.


        6
       As indicated, this case concerns only a single, narrow
aspect of the statutory refusal procedures set forth in the
implied consent law. Brefka raises no constitutional challenges
in this case.    But see Missouri v. McNeely, 133 S. Ct. 1552
(2013).

                                          10
                                                                         No.    2011AP2888



       ¶21     Likewise, Wis. Stat. § 343.305(10)(a) states that "if

the person does not request a hearing within 10 days after the

person has been served with the notice of intent to revoke the

person's operating privilege, the court shall proceed under this

subsection," and "[i]f no hearing was requested, the revocation

period shall begin 30 days after the date of the refusal."                              Id.

Different          revocation    periods     are     set    forth    that      take    into

account       the     person's    previous        suspensions,       revocations,        or

convictions.         Wis. Stat. § 343.305(10)(b).

       ¶22     In     this    case,    it    is    undisputed       that    Brefka      was

informed in the Notice of Intent that he may request a refusal

hearing within ten days of the date it was served upon him.

Wis.       Stat.    § 343.305(9)(a)4.             Additionally,      all     agree     that

Brefka did not file a request for a refusal hearing within the

required ten-day time limit.7               Thus, according to the text of the

implied consent law, the next step in the statutory procedures

is that the circuit court "shall" proceed to order revocation of

his operating privileges, which is to commence 30 days after the

date of refusal.              Wis. Stat. § 343.305(10)(a).                 The parties,
however,      dispute        whether   the    word       "shall"    is     mandatory    or

directory      in     nature,    and   whether      it     ultimately      deprives    the




       7
       Brefka directly states in his briefing to this court that
he "did not [file a request for a refusal hearing] within the
ten-day statutory time limit."

                                             11
                                                                     No.     2011AP2888



circuit court of competency to hear Brefka's request to extend

the ten-day time limit.8

       ¶23     The    word   "shall"        is    ordinarily     presumed         to    be

mandatory when it appears in a statute, but may be construed as

directory       if   necessary      to    carry   out   the    legislature's       clear

intent.       Karow v. Milwaukee Cnty. Civil Serv. Comm'n, 82 Wis. 2d

565,       570-71,   263   N.W.2d    214    (1978).9      In    Karow,     this    court

interpreted a statute that set forth a time limit to hold an

administrative hearing before the Milwaukee County Civil Service

Commission.          Id. at 568.         Karow, a deputy sheriff in Milwaukee
County, was suspended without pay after a complaint was filed

against him by the Milwaukee County Sheriff.                     Id. at 566-67.          A

hearing before the Civil Service Commission was scheduled, but

the assistant corporation counsel assigned to the case became

ill and a substitution of counsel was made.                      Id. at 567.           The


       8
       Construing the word "shall" as merely directory arguably
allows the circuit court discretion to extend the ten-day time
limit due to excusable neglect. See Eby v. Kozarek, 153 Wis. 2d
75, 79, 83, 450 N.w.2d 249 (1990) (a directory time limit "d[id]
not necessarily deprive the [circuit] court of competency to
exercise its jurisdiction" and did not "mandate dismissal of the
case.").
       9
       See also Eby, 153 Wis. 2d at 79 ("Under general principles
of statutory construction, the word 'shall' in a statute setting
a time limit is ordinarily presumed to be mandatory."); GMAC
Mortg. Corp. v. Gisvold, 215 Wis. 2d 459, 477, 572 N.W.2d 466
(1998); Cross v. Soderbeck, 94 Wis. 2d 331, 340, 288 N.W.2d 779
(1980); City of Wauwatosa v. Milwaukee Cnty., 22 Wis. 2d 184,
191, 125 N.W.2d 386 (1963) ("Generally in construing statutes,
'may' is construed as permissive and 'shall' is construed as
mandatory unless a different construction is demanded by the
statute in order to carry out the intent of the legislature.").

                                            12
                                                                             No.    2011AP2888



new    assistant      corporation         counsel      requested        that       the    Civil

Service Commission postpone the hearing because he had not had

time to prepare the case.            Id. at 567-68.

       ¶24    Karow    objected      to    the       delay,     but    the     hearing         was

postponed.         Id. at 568.       He later argued that the Civil Service

Commission was statutorily required to hold the hearing within

three weeks of the date the charges were filed against him, and

because that did not happen, he was entitled to a reinstatement.

Id.      The statute that set forth the time limit, Wis. Stat.
§ 63.10(2), provided that the Civil Service Commission "shall"

appoint a time and place for the hearing within three weeks

after the complaint was filed.              Id.

       ¶25    The Karow court took note of the statute's use of the

word     "shall"      and    considered       whether          it     was    mandatory          or

directory.         Id. at 570.    It ultimately set forth several factors

for    use    in    evaluating    whether        a    statute's        use   of     the    term

"shall" is mandatory or directory.                    The factors to be considered

are: the inclusion or omission of a "prohibition or a penalty"

in     the     statute,       "the     consequences             resulting          from        one

construction or the other," "the nature of the statute," "the

evil   to     be   remedied,"    and      "the       general    object       sought       to   be

accomplished" by the legislature.                Id. at 572.

       ¶26    A review of the factors set forth in Karow indicate

that the ten-day time limit in this case is mandatory rather

than directory.             Most significantly, the implied consent law

sets forth a penalty for noncompliance with the ten-day time

limit.       Wisconsin Stat. § 343.305(10)(a) directs that revocation
                                            13
                                                                            No.    2011AP2888



is to commence 30 days after the date of refusal if no hearing

is requested.          The    inclusion       of    a    penalty     for    noncompliance

suggests that the term "shall" is mandatory.

       ¶27    Additionally, construing the word "shall" as directory

under these circumstances could have profound consequences for

the penalties that the legislature has set forth for improper

refusals.       Wisconsin Stat. § 343.305(10) sets forth a penalty

structure     for     improper      refusals       that     depends    upon       whether    a

person requests a refusal hearing within ten days of service of

the    Notice    of    Intent.            Wis.     Stat.      § 343.305(10)(a).             If

additional litigation over extension of the ten-day time limit

occurs, the other penalty requirements set forth in the implied

consent law that depend upon timely revocation may be thrown

into question.10

       ¶28    Significantly,         when     a    person     is   penalized        for   his

first improper refusal, the court "shall revoke the person's

operating       privilege           for       one        year."             Wis.       Stat.

§ 343.305(10)(b)2.           The revocation period is to begin 30 days
from    the   date    of   the      refusal       when   no   hearing      was     requested

within ten days of service of the Notice of Intent.                               Wis. Stat.
§ 343.305(10)(a).            Yet,    the    implied        consent    law    provides       no

mechanism to reclaim the time lost to litigation if that penalty



       10
       For example, a person may be eligible for an occupational
license after the first 30 days of the revocation period.    See
Wis. Stat. § 343.305(10)(b)2.      If it is unclear when the
revocation period is to commence, then the time in which a
person may seek an occupational license is also uncertain. Id.

                                              14
                                                                         No.     2011AP2888



is required because no timely request for a refusal hearing was

ultimately filed.

       ¶29   Therefore, the revocation period might not extend a

full year if more than 30 days is spent litigating whether there

was excusable neglect for not timely filing the request.                                  The

statute requires that the revocation period must commence 30

days    after      refusal,       but     simultaneously         requires       that      the

revocation period end one year after it is to commence.                                   The

penalty structure could be subject to ambiguity in determining

how long a penalty must last.

       ¶30   To    inject     such      ambiguity     into   an    otherwise         precise

penalty structure appears to be at odds with the nature of the

implied consent law and its legislative purposes.                              This court

has stated the legislative purposes of the implied consent law

in   prior   cases.         It    is    meant    to    "obtain     the   blood-alcohol

content in order to obtain evidence to prosecute drunk drivers,"

which is "to be used to secure convictions" for operating a

motor vehicle while under the influence.                        State v. Brooks, 113

Wis. 2d 347, 355-56, 335 N.W.2d 354 (1983).

       ¶31   Thus,      the      "clear    policy       of   the     statute         is    to

facilitate        the   identification          of    drunken     drivers      and     their

removal from the highways."                State v. Neitzel, 95 Wis. 2d 191,

193, 289 N.W.2d 828 (1980).               More pointedly, its purpose is "to

get drunk drivers off the road as expeditiously as possible and

with as little possible disruption of the court's calendar."

Brooks, 113 Wis. 2d at 359; see also State v. McMaster, 206 Wis.

2d 30, 46, 556 N.W.2d 673 (1996) (concluding that the purposes
                                            15
                                                                             No.    2011AP2888



stated in Brooks "speak to the overarching goal of all drunk

driving laws in this state.").

        ¶32    Nothing   enumerated       in those          legislative        purposes is

consistent with the concept of extending the ten-day time limit

due to        excusable neglect.          The    promise        of    prompt       revocation

following an improper refusal is a powerful incentive to submit

to chemical testing, the result of which is likely to be key

evidence in any case where a driver is charged with operating a

motor    vehicle     while     intoxicated.             See     Wis.      Stat.      § 346.63
(criminalizing          the    operation        of      a     motor       vehicle             while

intoxicated        and     setting       forth        prohibited          blood          alcohol

concentrations).           Eroding       the    precise       penalty        structure         set

forth in the implied consent law and allowing for the delay of

refusal hearings diminishes any incentive to immediately consent

to a chemical test.

        ¶33    Extensions of the ten-day time limit also work to keep

suspected drunk drivers on the highways despite their refusal to

provide key evidence in their identification as drunk drivers.

A     delayed    refusal      hearing     likely        entails       a   delay          in    any

revocation       which   might     later       occur,       even     assuming       excusable

neglect exists in a given case.                 That delay is inconsistent with

the    "clear    policy"      of   the   implied      consent         law,    which       is    to

"facilitate       the    identification          of     drunk        drivers       and        their

removal from the highways."              Neitzel, 95 Wis. 2d at 193.

        ¶34    Furthermore, extensions of the ten-day time limit fail

to "get drunk drivers off the road as expeditiously as possible

and with as little possible disruption of the court's calendar."
                                           16
                                                                 No.    2011AP2888



Brooks, 113 Wis. 2d at 359.         Additional litigation to extend an

otherwise precise ten-day time limit is a source of disruption

to the court's calendar where no such disruption exists if the

ten-day time limit is construed as mandatory.                  Accordingly, the

Karow factors counsel that the use of the term "shall" in Wis.

Stat.      § 343.305(10)(a)   should    be   construed    as    mandatory,     not

directory.11

      ¶35     Despite the legislative mandate that the required time

limit is ten days after service of the Notice of Intent, Brefka

maintains that the statutory scheme allows for its extension due

to   excusable     neglect    because    the   rules     of    civil    procedure

generally     allow   for relief   from      judgments   or    orders    on   that

ground.12      No provision authorizing an extension of the ten-day

time limit due to excusable neglect is found in the text of Wis.

Stat. § 343.305(9)(a)4.        The text of Wis. Stat. § 343.305(10)(a)

likewise makes no provision for its extension on that ground.



      11
       The mandatory nature of the revocation that follows a
failure to request a refusal hearing is reinforced by this
court's analysis in State v. Piddington, 2001 WI 24, ¶35, 241
Wis. 2d 754, 623 N.W.2d 528, which characterized the revocation
as "automatic." In that case, this court noted that "an accused
driver could challenge automatic revocation of his or her
license for refusing to submit to a chemical test under Wis.
Stat. § 343.305(9)." Id.
      12
       Excusable neglect has been defined as "that neglect which
might have been the act of a reasonably prudent person under the
same circumstances," but which is not "synonymous with neglect,
carelessness or inattentiveness."     Casper v. American Int'l
South Ins. Co., 2011 WI 81, ¶37, 336 Wis. 2d 267, 800 N.W.2d
880.

                                        17
                                                         No.   2011AP2888



     ¶36    Procedures that arguably allow for an extension on the

ground of excusable neglect are, however, found in three other

procedural statutes, Wis. Stat. §§ 800.115,13 801.15(2)(a),14 and

806.07.15    Because Wis. Stat. § 801.01(2) applies the rules of

     13
       Wisconsin Stat. § 800.115, a municipal court procedure
statute, states as follows, in relevant part:

     (1) A defendant may within 6 months after the judgment
     is entered move for relief from the judgment because
     of mistake, inadvertence, surprise, or excusable
     neglect.
     14
       Wisconsin Stat. § 801.15(2)(a), a general civil procedure
statute, states as follows, in relevant part:

     (2)(a) When an act is required to be done at or within
     a specified time, the court may order the period
     enlarged but only on motion for cause shown and upon
     just terms. The 90 day period under s. 801.02 may not
     be enlarged. If the motion is made after the
     expiration of the specified time, it shall not be
     granted unless the court finds that the failure to act
     was the result of excusable neglect. The order of
     enlargement shall recite by its terms or by reference
     to an affidavit in the record the grounds for granting
     the motion.
     15
       Wisconsin Stat. § 806.07, a general             civil   procedure
statute, states as follows, in relevant part:

     (1) On motion and upon such terms as are just, the
     court, subject to subs. (2) and (3), may relieve a
     party or legal representative from a judgment, order
     or stipulation for the following reasons:

     (a) Mistake,     inadvertence,   surprise,   or     excusable
     neglect;

     . . . .

     (2) The motion shall be made within a reasonable time,
     and, if based on sub. (1)(a) or (c), not more than one
     year after the judgment was entered or the order or
     stipulation was made. A motion based on sub. (1)(b)
                                 18
                                                                 No.   2011AP2888



civil procedure to special proceedings and a refusal hearing is

a    special    proceeding,   Brefka   contends     that   the   ten-day    time

limit set forth in Wis. Stat. §§ 343.305(9)(a)4. and (10)(a) may

be    extended     by   the   operation     of   Wis.   Stat.    §§ 801.01(2),

800.115, 801.15(2)(a), and 806.07, relying on State v. Schoepp,

204 Wis. 2d 266, 554 N.W.2d 236 (Ct. App. 1996).

       ¶37     In Schoepp, the court of appeals applied Wis. Stat.

§ 801.01(2) to refusal hearings.            Id. at 271.    The defendant was

arrested for operating a motor vehicle while under the influence

of an intoxicant.        Id. at 269.      After he refused to submit to a

chemical test and was issued a notice of intent to revoke his

operating privilege, he filed a request for a refusal hearing.

Id.    Before the refusal hearing was held, the defendant issued

subpoenas for the deposition of the arresting officer and other

law enforcement officials who were involved in his arrest and

the events leading up to his alleged refusal.              Id.

       ¶38     Interpreting Wis. Stat. § 801.01(2), the Schoepp court

determined that because Wis. Stat. § 343.305 does not provide a

different procedure for a defendant to obtain discovery, the

civil procedure statutes relating to discovery applied to the

refusal hearing.         Id. at 272.        The "plain language" of Wis.



       shall be made within the time provided in s. 805.16. A
       motion under this section does not affect the finality
       of a judgment or suspend its operation. This section
       does not limit the power of a court to entertain an
       independent action to relieve a party from judgment,
       order, or proceeding, or to set aside a judgment for
       fraud on the court.

                                       19
                                                                No.    2011AP2888



Stat.        § 801.01(2)   required   that    the   general   discovery    rules

apply in refusal hearings "except where different procedure is

prescribed by statute or rule."16            Id.

        ¶39     Unlike Schoepp, here the legislature has set forth a

"different procedure" from the general rules of civil procedure.

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.                 The 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. at (10)(a).
        ¶40     Because the legislature has set forth a mandatory ten-

day time limit with precise penalties that rely on whether the


        16
       In    2006,   the    legislature   amended Wis.  Stat.
§ 343.305(9)(a) to limit discovery in refusal hearings.    It
presently states as follows, in relevant part:

     (9) Refusals; notice and court hearing. (a)

     . . . .

     Neither party is entitled to pretrial discovery in any
     refusal hearing, except that, if the defendant moves
     within 30 days after the initial appearance in person
     or by an attorney and shows cause therefor, the court
     may order that the defendant be allowed to inspect
     documents, including lists of names and addresses of
     witnesses, if available, and to test under s. 804.09,
     under such conditions as the court prescribes, any
     devices used by the plaintiff to determine whether a
     violation has been committed.

     See 2005 Wisconsin Act 332, § 4.

                                       20
                                                                                     No.       2011AP2888



time limit is met, the legislature has provided a "different

procedure"         that        governs       pursuant      to     Wis.    Stat.       § 801.01(2).

Accordingly, Wis. Stat. §§ 800.115, 801.15(2)(a), and 806.07 do

not allow for the extension of the ten-day time limit due to

excusable neglect.                    Wis. Stat. § 801.01(2); see Schoepp, 204

Wis. 2d at 272.

        ¶41 Having determined that the implied consent law sets

forth    a    mandatory           ten-day        time     limit     to    request          a    refusal

hearing that may not be extended due to excusable neglect, we

turn    to evaluate             the    effect       of    noncompliance         on     the      court's

competency          to     hear       Brefka's       request       that     it       be     extended.

Although the mere fact that a statutory time limit is mandatory

does not always result in a loss of competency, in this case the

mandatory         ten-day        time       limit    is     "central       to    the        statutory

scheme."          Bollig, 222 Wis. 2d at 566; Mikrut, 273 Wis. 2d 76,
¶10.     The central role that the ten-day time limit plays within

the    statutory          scheme       is    revealed       when    it     is    placed         in    the

context of the legislative purposes of the implied consent law.

       ¶42        The    mandatory          obligation       on    the     circuit          court      to

revoke a person's operating privilege if he does not file a

request for a refusal hearing within ten days of service of the

Notice       of    Intent        furthers        the      legislative       purposes            of    the

implied      consent           law.         As   discussed        above,    it       assists         with

"obtain[ing]             the    blood-alcohol            content     in     order          to    obtain

evidence to prosecute drunk drivers," which is then "to be used

to secure convictions" for operating while under the influence.

Brooks, 113 Wis. 2d at 355-56.                           Additionally, it "facilitate[s]
                                                    21
                                                                                No.      2011AP2888



the identification of drunken drivers and their removal from the

highways."          State v. Neitzel, 95 Wis. 2d 191, 193, 289 N.W.2d

828 (1980).           Finally, it "get[s] drunk drivers off the road as

expeditiously as possible and with as little possible disruption

of the court's calendar."                Brooks, 113 Wis. 2d at 359.

        ¶43    On     the    other      hand,    extensions          of   the      ten-day      time

limit    due     to    excusable         neglect          arguably    change       the    precise

penalty       structure      set forth          in    the    implied      consent        law,   and

those changes appear contrary to its legislative purposes.                                      See
supra, ¶¶31-35.             Therefore, those legislative purposes cannot be

fulfilled without strictly following the statutory mandate that

a refusal hearing must be requested within ten days of service

of the Notice of Intent.                  Mikrut, 273 Wis. 2d 76, ¶11 (quoting

Bollig,       222    Wis.    2d    at    568-69).           Given     the    necessity       of    a

mandatory       ten-day       time      limit        to    accomplish        the    legislative

purposes of the implied consent law under these circumstances,

we conclude that it is "central to the statutory scheme" and

accordingly, the circuit court lacks competency to hear Brefka's

request to extend it due to excusable neglect.                              Id., ¶10.

                                                IV

        ¶44    In sum, we conclude that the circuit court is without

competency to hear Brefka's request to extend the ten-day time

limit set forth in Wis. Stat. §§ 343.305(9)(a)4. and (10)(a).

The ten-day time limit is a mandatory requirement that may not

be extended due to excusable neglect.                             Because the mandatory

ten-day       time    limit       is    central      to     the   statutory        scheme,      the


                                                22
                                                              No.     2011AP2888



circuit   court    lacked   competency   to   hear   Brefka's       request   to

extend it.      Accordingly, we affirm the court of appeals.

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

affirmed.




                                    23
    No.   2011AP2888




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