68 Op. Att'y Gen. 209 (1979)
 
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Wisconsin Attorney General Opinions

Opinion # OAG 71-79

7 August 1979.

Implied Consent Law;

Under the Implied Consent Law,
Section 343.305, Stats., hospitals must
comply with the request of a law enforcement
officer to administer chemical tests
including a blood test.

This assumes that the driver has not
withdrawn his or her consent
to submit to that test.

Drivers who are unconscious or otherwise
incapable of withdrawing their consent
are presumed not to have withdrawn it.

The refusal of hospitals, physicians, nurses,
and other health professionals authorized to
withdraw blood to comply with such request
constitutes the refusal to aid an officer
within the meaning of Section 946.40, Stats.

In complying with the request, the
professional incurs no civil or criminal
liability, except for any negligence in the
course of compliance.

The person performing the chemical test must
report the findings to the Department of
Transportation, the law enforcement
agency, and the individual involved.

Failure to report to the law enforcement
agency also constitutes the refusal to
aid an officer within the meaning
of Section 946.40, Stats.

MICHAEL J. MULROY,
District Attorney La Crosse County

You have asked for my opinion on some
questions related to the Implied Consent Law.

Your first question is whether a hospital
must comply with the request of a law
enforcement officer to administer a
chemical test including a blood test.

In my opinion the answer is yes.

Section 343.305(1), Stats., provides:

Any person who drives or operates a
motor vehicle upon the public highways
of this state, or in those areas
enumerated in Section 346.61, shall be
deemed to have given consent to tests
of his or her breath, blood or urine,
for the purpose of determining the
presence or quantity in his or her
blood, of alcohol or controlled
substances when requested to do
so by a law enforcement officer under
Subsection 343.305(2).

Any such test shall be administered upon
the request of a law enforcement
officer.

69 OAG 209 210 211 212 213 214 END

Section 343.305(2)(c), Stats., provides:

   A person who is unconscious or otherwise
   not capable of withdrawing consent is
   presumed not to have withdrawn consent
   under this subsection . . . .

Section 343.305(3)(b), Stats., provides:
 
   If the person refuses the request of a
   law enforcement officer to submit to a
   test under Subsection 343.305(2), the
   officer shall immediately prepare a
   notice of intent to revoke the
   person's operating privilege under
   Subsection 343.305(9) . . . .

Section 343.305(6)(a), Stats., provides:

   Blood may be withdrawn from the person
   arrested for the purpose of determining
   the presence or quantity of alcohol or
   controlled substance in the blood only
   by a physician, registered nurse,
   medical technologist, physician's
   assistant or person acting under the
   direction of a physician.

Section 343.305(9)(c), Stats., provides:

   Upon refusal to take a test under
   Subsection 343.305(2), the court
   shall revoke the person's operating
   privilege for 6 months.

The Implied Consent Law does not authorize
physical force to require a person
to submit to a chemical test.

The wrongful refusal to take the test,
however, subjects the person to sanctions.

The Legislature intended to permit drivers to
refuse to take these tests, but only on
penalty of a sanction for having wrongfully
withdrawn their implied consent to submit.

The driver's right to refuse to submit is
evident from the foregoing statutes.

"If the person refuses the request" to
submit, the officer is to prepare
a notice of intent to revoke.

Section 343.305(3)(b), Stats.

On that wrongful refusal, the person's
operating privileges shall be
revoked for six months.

Section 343.305(9)(c), Stats.

The Legislature did not contemplate a
wrestling match to hold a driver
to his implied consent.

In the case of an unconscious person or one
who otherwise is incapable of withdrawing
consent, the consent to submit to tests, in
the eyes of the law, remains operative.

Section 343.305(2)(c), Stats.

69 OAG 209 210 211 212 213 214 END

Consequently, except for the unconscious
person or one otherwise not capable of
withdrawing a consent, a hospital can
be called upon to administer a chemical
test only where the person does not
withdraw consent.

In both instances, it is my opinion that
the hospital is under a mandatory duty
to perform the test.

Section 343.305(1), Stats., unequivocally
states that the test "shall be administered
upon the request of a law enforcement
officer," and the Legislature expressly
enumerated the health professionals
who shall draw blood.

Section 343.305(6)(a), Stats.

The use of the word "shall" demonstrates
the Legislature's intent that the obligation
on hospitals and related health professionals
is mandatory.

The word "shall" is construed as importing
a mandatory term unless the statute demands
an alternative construction.

Wauwatosa v. Milwaukee County,
22 Wis.2d 184, 191,
125 N.W.2d 386 (1963).

Nothing in the Implied Consent Law
demands an alternative construction.

In fact, this law is to be liberally
construed to achieve its overall purpose to
facilitate the taking of tests to determine
intoxication.

Scales v. State,
64 Wis.2d 485, 494,
219 N.W.2d 286 (1974).

To construe the word "request" as permitting
hospitals, physicians, etc., to refuse to
comply with the officer's request would
abort the very purpose of the law and
would effectively repeal the
mandatory word "shall."

Accordingly, a hospital must comply with the
request of a law enforcement officer to
administer a chemical test including
a blood test.

It must be understood, however, that the
officer cannot force a test on an unwilling
person and that, in the eyes of the law, an
unconscious person is willing.

Your second question is whether a doctor who
refuses to comply with the request of a law
enforcement officer to administer a test
would violate Section 946.40, Stats.

In my opinion the answer is yes.

Section 946.40, Stats., provides:

REFUSING TO AID OFFICER.

946.40(1)

   Whoever, without reasonable excuse,
   refuses or fails, upon command,
   to aid any person known by the
   person to be a peace officer
   is guilty of a Class C misdemeanor

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946.40(2)

This section does not apply if under the
circumstances the officer was not
authorized to command such assistance.

Section 946.40, Stats., reflects the ancient
common-law principle and the long-standing
rule in this state that citizens have a
duty to aid police officers in
the discharge of their duties.

One of this section's antecedents is
Chapter 136, Section 17, Rev. Stats. 1849,
which required "any person" to assist
these law officers "in the execution
of their office."

11 Op. Att'y Gen. 829, 830 (1922) referred to
this as a "duty of citizenship."

In

Babington v. Yellow Taxi Corporation,
250 N.Y. 14,
164 N.E. 726 (1928),

the court recited the common-law history of
the citizen's duty to evoke a "hue and cry"
on discovery of a felon as well as to equip
himself with the "instruments sufficient
for the task" of apprehending.

164 N.E. at 727.

Mr. Justice Cardozo, speaking for the court,
declared that the modern day citizen
has the same duty of assistance.

The ancient ordinance abides as an
interpreter of present duty.

Still, as in the days of Edward I, the
citizenry may be called upon to enforce
the justice of the state, not faintly
and with lagging steps, but honestly and
bravely and with whatever implements
and facilities are convenient and at
hand . . An officer may not pause to
parley about the ownership of a vehicle
in the possession of another when there
is need of hot pursuit.

Id.

It remains the law that a law enforcement
officer may summon a posse comitatus or a
sole bystander to lend assistance.

1 Wharton's Criminal Procedure
Section 52 (12th ed.).

See

West Salem v. Industrial Commission,
162 Wis. 56, 60,
155 N.W. 929 (1916).

In exercising this power, the officer is
subject to a duty of reasonableness
under the circumstances.

See

Williams v. State,
253 Ark. 973,
490 Section W.2d 117, 122-123 (1973).

In the case at hand, it unquestionably is
reasonable for the officer to summon a
medical health professional to gather
evidence by withdrawing blood especially
since the Legislature expressly has
imposed that obligation on the health
professional and, indeed, has instructed
the officer to use no other.

Your third question is whether the health
professional, in complying with the
officer's request, is subject to
criminal or civil liability.

The answer, quite briefly, is that the health
professional has a greater risk of criminal
liability in not complying with that request.

69 OAG 209 210 211 212 213 214 END

As noted, if requested by a law enforcement
officer, such test "shall be administered."

Section 343.305(1), Stats.

Further, as noted, failure to aid the
officer in this circumstance is punishable
as a Class C misdemeanor.

Section 946.40, Stats.

Finally, lest there be any remaining doubt,
the Legislature expressly exempted from
civil or criminal liability those persons
withdrawing blood from the arrested person,
"except for civil liability for negligence in
the performance of the act."

Section 343.305(6)(b), Stats.

Consequently, the physician, nurse, or other
health professional, in complying with a law
enforcement officer's request to draw blood
from an arrested person for the purpose of
determining the presence or quantity of
alcohol or controlled substance in the
blood, incurs no liability by complying
with the officer's request.

Such person will incur liability only
to the extent of his or her
negligence while complying.

Your fourth question is whether the duty of
the person performing the chemical analysis
to report the findings is mandatory and, if
so, whether refusal to report is subject to
Section 946.40, Stats.

In my opinion the duty is mandatory.

Section 343.305(4), Stats., provides:

The person who performs a chemical
analysis of breath, blood or urine under
Subsection 343.305(2) shall prepare a
written report of the findings of the
test which includes the identification
of the law enforcement officer or person
upon whose request the test was
administered.

He or she shall promptly transmit a copy
thereof to the department, the law
enforcement agency and the person from
whose breath, blood or urine the
analysis was made.

My reasoning in response to the first
question is applicable here.

As noted there, the word "shall" ordinarily
imports a mandatory obligation. The purpose
of the Implied Consent law is to facilitate
gathering of evidence of intoxication and
is to be liberally construed to that end.

Accordingly, the duty to report in
Section 343.305(4), Stats., also
is mandatory.

Section 946.40, Stats., relates to
refusing to aid a "peace officer."

Therefore, it would relate only to refusal to
supply a report to the law enforcement agency
and would not relate to a refusal to supply
the report to the individual involved.

The Department, of course, is a law
enforcement agency in respect to cases
involving its own state troopers but, in
other cases involving local police units, it
would not be a peace officer for purposes of
Section 946.40(1), Stats.

69 OAG 209 210 211 212 213 214 END

Unquestionably, the failure to file the
report as required by statute would be a
refusal to "aid" the officer within the
meaning of Section 946.40(1), Stats.

Since time immemorial the refusal of aid
has consisted in the refusal to lay down
one's business to supply time and
equipment to help the police.

In the case of providing the time and
equipment to perform a chemical test,
the requisite "aid" is incomplete
until the results are reported.

Accordingly, the refusal to supply the
reports to the law enforcement agency would
be violative of Section 946.40, Stats.

There appears to be no express sanction for
failure to supply the report to the person
involved and the Department (except when it
is the law enforcement agency).

This is a matter which should be brought to
the Legislature's attention to assure
the enforceability of the law.

In the meantime, the person performing the
test could be subjected to appropriate civil
remedies of injunction and, in a proper case,
to a writ of mandamus.

In addition, consideration should be given to
the use of the subpoena and search warrant.

BCL:CDH

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