77 Op. Att'y Gen. 4 (1988)

Wisconsin Attorney General Opinions
77 OAG 4 5 6 7 8 9 10 11 12 13 14 15 16 17

Opinion # OAG 2-88,

11 January 1988

Courts; Criminal Law, Implied Consent Law;

An individual's fifth amendment privilege
against self-incrimination need not be
compromised by his or her testimony elicited
at the evidentiary refusal hearing afforded
to individuals who have requested the
opportunity to litigate the lawfulness of
their refusal to submit to chemical testing
under the implied consent law.

Consequently, absent any statutory
guidelines, the scheduling of a refusal
hearing is within the discretion and
calendaring possibilities of the
court to which it is assigned.

District Attorney Langlade County

You have requested my opinion on several
issues relating to the timeliness of and
standards for staying the evidentiary hearing
afforded to individuals who have requested
the opportunity to litigate the lawfulness of
their refusal to submit to chemical testing
under the implied consent law.

Section 343.305, Stats.

Paraphrasing your questions, you ask:

1. When should the refusal hearing be held?

2. Can the refusal hearing be stayed until
   after the trial on the substantive
   operating while intoxicated ("OWI")

3. If the refusal hearing can be stayed
   until after the substantive OWI trial,
   is the issue of self-incrimination a
   proper ground for such a stay?

4. In order to grant a stay, must an
   individual meet a standard of an "actual
   and/or substantial possibility of

5. Is it necessary and/or allowable for a
   prosecutor to replace the privilege of
   self-incrimination with a grant of
   immunity in order to hold the
   refusal hearing prior to
   the substantive OWI trial?

Your request is apparently prompted by a
recent determination by the circuit court in
your county to stay a refusal hearing until
after the trial for the substantive OWI
charge in order to protect an individual's
fifth amendment privilege against

The argument favoring that determination
would appear to be that the holding of a
refusal hearing prior to the trial for the
substantive OWI charge violates an
individual's fifth amendment constitutional
right against self-incrimination by forcing
him/her either to waive that right or to
forfeit his/her due process right to
meaningful participation in the
refusal hearing.

77 OAG 4 5 6 7 8 9 10 11 12 13 14 15 16 17

In my opinion, an individual's fifth
amendment privilege against
self-incrimination need not be compromised
by his/her testimony elicited at a refusal

Consequently, a circuit court would not be
required to stay a refusal hearing
for this reason.

To resolve a situation similar to the one
which inspired your inquiry, it would
therefore not be necessary to answer
the remaining four questions.

However, because the remaining questions
involve matters of a recurring nature
important to the prosecutors in the
state, I choose to give each
consideration in this opinion.

Before addressing your particular questions,
I find it useful to consider the statutory
scheme within which the refusal hearing is
but one part, as well as the nature and
parameters of the refusal hearing itself.

A refusal hearing is "separate and distinct"
from an OWI prosecution.

Suspension of Operating
Privileges of Bardwell,
83 Wis.2d 891, 902,
266 N.W.2d 618, 623 (1978).

The former is a "special proceeding,"
civil in nature,
State v. Jakubowski,
61 Wis.2d 220, 223-24,
212 N.W.2d 155, 156 n.2 (1973),
while the latter may be either a civil or a
criminal proceeding depending on whether the
defendant has been previously convicted of
OWI within a prescribed period of time.

Section 346.65 (2), Stats.

Although they are not unrelated actions, for
both arise out of the same basic occurrence,
State v. Brooks,
113 Wis.2d 347, 354,
335 N.W.2d 354 (1983),

the two proceedings are often prosecuted
in two different forums.

This is particularly true when the
substantive OWI is a first offense brought
by a municipality, and the corresponding
refusal proceeding, as it must, is
prosecuted as a state proceeding in the
circuit court by the district attorney.

Bardwell 83 Wis.2d at 903;
see Section 343.305(3)(b), Stats.

The issues to be considered at a refusal
hearing are strictly limited to those
specifically outlined in subsection
343.305(3)(b)5, Stats.

State v. Nordness, 128 Wis.2d 15, 29, 381
N.W.2d 300 (1986). Consequently, the scope of
the inquiry is limited to the following:

77 OAG 4 5 6 7 8 9 10 11 12 13 14 15 16 17

1. Whether the officer had probable cause
   to believe that the person violated an
   impaired driving law and lawfully
   arrested him or her therefore;

2. Whether the officer complied with the
   statutory duty to inform the person
   about his or her obligations and rights
   under the implied consent law;

3. Whether the person refused to submit to
   testing requested by the officer.

   "Reasonableness" of the refusal is
   not an issue at a refusal hearing.

City of Prairie Du Chien v. Evans,
100 Wis.2d 358, 359 n.2,
302 N.W.2d 61 (Ct.App. 1981).

The narrow view of the issues to be addressed
at the refusal hearing also circumscribes
the proof required of the prosecution
to establish a refusal.

First, the quantum of evidence necessary to
establish the probable cause element exists
when the totality of the circumstances within
the arresting officer's knowledge at the time
of the arrest would lead a reasonable police
officer to believe that an individual
probably committed an impaired driving

Nordness, 128 Wis.2d at 35.

In analyzing the nature of this proof at a
refusal hearing, the Wisconsin Supreme Court
has utilized traditional notions of
evidentiary analysis to establish
probable cause:

We view the revocation hearing as a
determination merely of an officer's probable
cause, not as a forum to weigh the state's
and the defendant's evidence.

Because the implied consent statute limits
the revocation hearing to a determination
of probable cause Ä as opposed to a
determination of probable cause to
a reasonable certainty Ä we do
not allow the trial court to
weigh the evidence between
the parties.

The trial court, in terms of the probable
cause inquiry, simply must ascertain the
plausibility of a police officer's account.

Nordness, 128 Wis.2d at 36.

Second, the requirement that the prosecution
must prove that the accused was informed of
his/her obligations and rights as those are
identified in the applied consent law is
also typically established through the
testimony of the officer that a form
"informing the accused" was read to
the driver and by the introduction
of the actual form into evidence.

Third, the prosecution must prove that the
driver refused to submit to the test.

Ordinarily, the refusal is expressed verbally
by the accused, and the prosecutor's burden
is discharged by eliciting testimony to that
effect from the police officer.[1]

77 OAG 4 5 6 7 8 9 10 11 12 13 14 15 16 17

The preliminary background necessary to
render the opinion now stated, I turn to
the analysis of your specific questions.

Your first two questions require me to
address the same issue Ä the timeliness
of the refusal hearing.

Section 343.305 fails to state when the
refusal hearing should or must be held.

Further, there are no other statutory
provisions or case law authorities that
either require or restrict the refusal
hearing to the period of time either
before or after the trial on the
substantive OWI charge.

Consequently, absent any guidelines, the
scheduling of a refusal hearing is within the
discretion and calendaring possibilities of
the court to which it is assigned.

You have suggested several reasons to require
the occurrence of the refusal hearing prior
to the trial on the substantive OWI charge.
hose reasons include:

(1) a requirement that the refusal hearing
    be held within sixty (60) days from the
    date of the refusal based upon the
    language of subsection 343.305(3)(c);

(2) a decision on the "reasonableness" of a
    refusal would be beneficial to the
    factfinder at the trial of the
    substantive OWI charge; and

(3) a delay in the revocation resulting from
    a refusal violating section 343.305
    violates the "intent and purpose"
    of the implied consent law.

None of those reasons, however,
are persuasive.

First, I find no support in subsection
343.305(3)(c) for the proposition that
the refusal hearing should be held
within sixty (60) days of the
refusal of the chemical test.

That subsection provides as follows:

The receipt given the operator shall
clearly state the date of the refusal
and shall serve as a driving permit for
30 days from the date of the refusal.

If further proceedings or hearings on
the refusal issues are necessary, the
court shall certify the receipt for
additional periods, not to exceed 30
days, until there is a final
determination of whether the person's
operating privilege shall be revoked
under this section.

77 OAG 4 5 6 7 8 9 10 11 12 13 14 15 16 17

This subsection unambiguously provides the
circuit courts of this state with the
discretion to permit an unlimited number of
extensions, as long as no individual
extension exceeds thirty days.

I do not believe that this subsection
restricts those courts to a single
thirty (30) day extension.

I have been advised that this view of the
statute is consistent with the longstanding
interpretation and application of the implied
consent law by the Wisconsin Department of

West Bend Education Association v. WERC,
121 Wis.2d 1, 12,
357 N.W.2d 534 (1984),

Nottelson v. ILHR Department,
94 Wis.2d 106, 115-18,
287 N.W.2d 763 (1980).

See also
Chevrolet Division, GMC v. Industrial Comm.,
31 Wis.2d 481, 488,
143 N.W.2d 532 (1966).

Second, under earlier versions of the implied
consent law, the "reasonableness" of a
refusal was an issue to be determined
at the refusal hearing.

Section 343.305(2)(b)5 (1975), Stats.
However, as noted earlier, reasonableness of
a refusal is no longer a statutory defense.

Evans, 100 Wis.2d at 359 n.2.

The "reasonableness" of a refusal is not an
issue enumerated in section 343.305(3)(b).

Therefore, no determination of
"reasonableness" would be available for
the factfinder at the substantive OWI
trial from a prior refusal hearing.

Third, while it may be argued that a delay in
the revocation of an individual who has
refused a chemical test may not be within the
"intent and purpose" of the implied consent
law, the effect of the delay in any
particular case is but one of the many
factors to be considered by the circuit court
within the exercise of its discretion.

Without question, the purpose of the implied
consent law, including the refusal hearing
subsections of section 343.305, is to
facilitate the identification and immediate
removal of intoxicated drivers from the
public highways.


State v. Nordness,
128 Wis.2d 15, 27 n.5,
381 N.W.2d 300 (1986);

State v. Neitzel,
95 Wis.2d 191, 193,
289 N.W.2d 828 (1980).

This purpose is not compromised, however,
by entrusting this determination to
the discretion of the circuit
courts of this state.

With the exception of delay in the imposition
of the penalty of revocation, I perceive
nothing burdensome upon the state in the
delay of a refusal hearing until after the
trial on the substantive OWI charge.

77 OAG 4 5 6 7 8 9 10 11 12 13 14 15 16 17

Despite the lack of a prior refusal hearing,
the evidence of a refusal to submit to a
chemical test is admissible at the
substantive OWI trial to establish
"consciousness of guilt."

State v. Zielke,
137 Wis.2d 39, 47-48,
403 N.W.2d 427 (1987);

State v. Crandall,
133 Wis.2d 251, 257-60,
394 N.W.2d 905 (1986),

citing among others,

South Dakota v. Neville,
459 U.S. 553 (1983),


State v. Albright,
98 Wis.2d 663, 668-69,
298 N.W.2d 196 (Ct.App. 1980).

This rule of admissibility is always
subject to the corollary rule permitting
an individual to introduce any evidence
that tends to show that a refusal
occurred for some reason other
than a "consciousness of guilt."

State v. Sayles,
124 Wis.2d 593, 596-98,
370 N.W.2d 265 (1985);

State v. Bolstad,
124 Wis.2d 576, 585-86,
370 N.W.2d 257 (1985).

And, despite the outcome of the substantive
OWI trial, the prosecution may, in
appropriate circumstances, continue
to prosecute the refusal case.

State v. Brooks,
113 Wis.2d 347,
335 N.W.2d 354 (1983).

Although the Wisconsin Supreme Court in
Brooks, supra, held that a trial court
had the discretion to dismiss a refusal
case once there had been a plea of guilty
to the substantive OWI charge, the court
stated the following:

We stress that the power to
dismiss is a discretionary one.

There may be circumstances where the
court may conclude in a particular
case not to dismiss the refusal
charge although a plea of guilty
to OWI has been taken.

Whether such refusal to dismiss can be
justified as a proper exercise of
discretion will be dependent upon the
ambience of the particular case.

Brooks, 113 Wis.2d at 359.

The previous observations now lead to my
response to your most significant inquiry Ä
question 3.

While I believe the burdens on the state
of a refusal hearing occurring after the
substantive OWI trial are negligible, the
facts inspiring your inquiries suggest a
far greater concern perceived by those
individuals facing a refusal hearing
prior to their substantive OWI trial

The basis for the perceived dilemma is the
necessity of choosing between two
constitutional rights:

(1) the fifth amendment privilege against
    self-incrimination; and

(2) the constitutionally protected interest
    in their driver's license, which
    prevents removal without due process.

Dixon v. Love 431 U.S. 105 (1977);
Bell v. Burson, 402 U.S. 535 (1971);
Best v. State, 99 Wis.2d 495.
299 N.W.2d 604 (Ct.App. 1980).

77 OAG 4 5 6 7 8 9 10 11 12 13 14 15 16 17

Apparently, those individuals, perceive a
fifth amendment dilemma in being forced to
either present their reasons for refusal of
a chemical test at the refusal hearing,
thereby disclosing the theory of their
defense to the substantive OWI charge,
as well as disclosing possibly incriminating
evidence by the waiver of their privilege
against self-incrimination, or remaining
silent and losing their driver's license
for a period of sixty days.

A distinction must be made between the two
discrete questions the perceived dilemma

(1) does an individual's concern about
    compromising his or her privilege
    against self-incrimination by testifying
    at the refusal hearing provide a proper
    factor that the court may consider in
    the exercise of its discretion in
    determining whether to grant a stay; and

(2) does that concern require the granting
    of a stay to protect that privilege.

In my opinion, a court may properly take
into account self-incrimination
concerns in ordering a stay.

State ex rel. Flowers v. Health and
Social Services Department,
81 Wis.2d 376, 396-97,
260 N.W.2d 727 (1978)
(circuit court did not abuse its
discretion in delaying parole
revocation proceeding until
after trial on pending criminal
charge because of possible
self-incrimination concerns).

However, it is also my opinion that the
concern over self-incrimination does not
require a stay of the refusal hearing.

Even when the substantive OWI charge is a
criminal offense, I cannot agree with the
contention of those that argue that either of
the earlier described consequences violates
their fifth amendment privilege against

First, the risk of disclosing the theory of
the defense to the substantive OWI charge
does not differ from the pretrial disclosures
required in all other criminal cases.

For example, in
Williams v. Florida, 399 U.S. 78 (1970),
the United States Supreme Court
upheld a statute compelling pretrial
disclosure of the names and addresses
of alibi witnesses intended to be
called at trial.

The Court noted that a criminal trial "is
not yet a poker game in which players
enjoy an absolute right always to
conceal their cards until played."

Williams, 399 U.S. at 82. The Court held:

At most, the rule only compelled
petitioner to accelerate the timing of
his disclosure, forcing him to divulge
at an earlier date information that the
petitioner from the beginning planned to
divulge at trial.

77 OAG 4 5 6 7 8 9 10 11 12 13 14 15 16 17

Nothing in the Fifth Amendment privilege
entitles a defendant as a matter of
constitutional right to await the end
of the State's case before announcing
the nature of his defense, any more
than it entitles him to await the
jury's verdict on the State's
case-in-chief before deciding whether
or not to take the stand himself.

Williams, 399 U.S. at 85.

Subsequently, in
Wardius v. Oregon, 412 U.S. 470, 475 (1973),
the Court held that pretrial discovery in
criminal cases was a "two-way street,"
requiring reciprocal disclosures by
the state under the due process clause.

The Court's holding in Wardius does not
diminish its earlier holding in Williams that
no fifth amendment rights were implicated by
the disclosure required of a defendant.

Unlike the notice of alibi statutes
discussed in Williams and Wardius, the
implied consent law does not require a
defendant to disclose information to the
state regarding the defense to the
substantive OWI charge.

Rather, it merely gives an individual who has
refused a chemical test the right to require
the state to demonstrate that the police
officers complied with the statute prior
to requiring the test.

Since to do so, the state must demonstrate
that the officer had probable cause to arrest
the individual on the substantive OWI charge,
it is the state, not the defendant, which is
compelled to "show its hand" on the merits
of the substantive OWI charge in advance
of the trial.

Any lack of reciprocity in scheduling a
refusal hearing prior to the substantive
OWI charge is to the advantage of the
individual who is not required to
make equivalent disclosures.

Second, a more serious concern is the
potential for compelling a disclosure of
incriminating facts material to the
defense at the substantive OWI trial.

For the following reasons, however, I do not
believe that an individual has a right to
stay the refusal hearing on this basis.

First, requiring an individual to defend a
refusal hearing does not place that
individual in an untenable position in a
constitutional sense because he/she is forced
to choose between not defending the refusal
hearing or defending it by sacrificing
his/her privilege against self-incrimination.

Second, when and if such a dilemma would
exist, a satisfactory resolution within the
discretion of the trial court is available.

77 OAG 4 5 6 7 8 9 10 11 12 13 14 15 16 17

Neely v. State,
97 Wis.2d 38;
292 N.W.2d 859 (1980),]
the Wisconsin Supreme Court
considered the difficulties attached
to a defendant's decision not to
answer relevant inquiries having
once testified during a trial.

The court recognized that individuals
are often required to make choices
between "hard alternatives" that do not
result in unconstitutional dilemmas.

In Neely, the court held that while a
defendant has an interest in defending
against the state's accusations by testifying
on his own behalf, neither the choice to
testify nor the choice of alternatives a
defendant must make once he waives his
privileges by testifying can be said to be
unconstitutionally imposed on him.

Neely, 97 Wis.2d at 52.

The court relied upon an earlier decision of
the United States Supreme Court:

The criminal process, like the rest of
the legal system, is replete with
situations requiring "the making of
difficult judgments" as to which course
to follow. . . . Although a defendant
may have a right, even of constitutional
dimensions, to follow whichever course
he chooses, the Constitution does not
by that token always forbid
requiring him to choose.

Neely, 97 Wis.2d at 52, quoting
McGautha v. California,
402 U.S. 183, 213 (1971)

The language of McGautha is most compelling
when one recognizes the significant choice
faced by McGautha which was found acceptable
by the United States Supreme Court.

In McGautha, the Court found no intolerable
tension between a defendant's constitutional
right not to be compelled to be a witness
against himself and the alleged due process
right to be heard on the issue of punishment
where the procedure provided for a unitary
trial on both the issue of punishment and
guilt in a capital case and the defendant
was forced to choose whether to remain
silent on the issue of guilt at the cost of
surrendering any chance to plead his case on
the issue of punishment or testify on the
issue of punishment at the risk of damaging
his case on guilt.

McGautha, 402 U.S. at 214.

Subsequent decisions of the United States
Supreme Court have further clarified the
"hard choices" which do not compromise a
defendant's fifth amendment rights.

One area of concern has been in the context
of public employe and public contractor law.

The United States Supreme Court's major
concern in this area has been in preventing
testimony obtained from an employe under
threat of dismissal from being used
against that person in a subsequent
criminal proceeding.

77 OAG 4 5 6 7 8 9 10 11 12 13 14 15 16 17

For example, in
Garrity v. State of New Jersey,
385 U.S. 493, 500 (1967),
police officers who were being questioned
about alleged ticket fixing were informed
that a refusal to answer questions on
fifth amendment grounds would
result in their dismissal.

The Court held that "the protection of the
individual under the Fourteenth Amendment
against coerced statements prohibits use
in subsequent criminal proceedings of
statements obtained under threat
of removal from office."

Similarly, in
Uniformed San. Men Ass'n v. Com'r of San.,
392 U.S. 280, 284 (1968),
city employes who refused to sign waivers of
fifth amendment immunity before a grand jury
were fired from their jobs.

The Court acknowledged that the possible
ineffectiveness of the waiver did not
diminish the impropriety of the
state's action.

The real constitutional controversy arose
from the alternatives with which the employes
were faced, because "the precise and plain
impact of the proceedings . . . was to
present them with a choice between their
constitutional rights or their jobs."

More recently, the Supreme Court considered
the "hard choice" doctrine in the context
of a prison disciplinary proceeding in
Baxter v. Palmigiano, 425 U.S. 308 (1976).

In Baxter, plaintiff asserted that a Rhode
Island rule allowing the factfinder in a
prison disciplinary proceeding to draw an
adverse inference from a failure to testify
derogated his fifth amendment privilege.

The Court rejected this argument, finding the
Rhode Island rule was not an invalid attempt
to penalize the exercise of the privilege.

Justice White wrote for the majority:

A prison inmate in Rhode Island electing
to remain silent during his disciplinary
hearing, as respondent Palmigiano did
here, is not in consequence of his
silence automatically found guilty
of the infraction with which he
has been charged.

Under Rhode Island law, disciplinary
decisions "must be based on substantial
evidence manifested in the record of
the disciplinary proceeding.

. . . It is thus undisputed that an
inmate's silence in and of itself is
insufficient to support an adverse
decision by the Disciplinary Board."

In this respect, this case is very
different from the circumstances
before the Court in the
Garrity v. New Jersey,
385 U.S. at 493;
Lefkowitz v. Turley,
414 U.S. at 70
decisions, where refusal to submit to
interrogation and to waive the Fifth
Amendment privilege, standing alone and
without regard to other evidence,
resulted in loss of employment or
opportunity to contract with the State.

77 OAG 4 5 6 7 8 9 10 11 12 13 14 15 16 17

There, failure to respond to
interrogation was treated as a final
admission of guilt.

Here, Palmigiano remained silent at the
hearing in the face of evidence that
incriminated him; and, as far as this
record reveals, his silence was given
no more evidentiary value than was
warranted by the facts surrounding
his case.

Baxter, 425 U.S. at 317-18 .

The lesson of the preceding "hard decision"
cases is that it is not constitutionally
impermissible to require an individual to
defend a refusal proceeding prior to the
substantive OWI trial.

There is no indication that invocation of the
fifth amendment at a refusal hearing will
result in an adverse decision.

The state must always prove its case at
the refusal hearing by establishing
each of the necessary elements.

There exists no requirement at the refusal
hearing that an individual waive his/her
immunity under the fifth amendment.

Nor is there a threat that an individual will
have their license suspended simply for
invoking the privilege.

Since there is no requirement that an
individual either answer questions which
might incriminate him/her in future criminal
proceedings or have their license suspended
or revoked, there is no impermissible effect
on an individual's fifth amendment privilege
in requiring the refusal hearing to occur
prior to the substantive OWI trial.

The harshness of the "hard choice" doctrine
militates against its implementation.

However, the "hard choice" doctrine need
not be determinative.

In my opinion, a form of judicially created
and judicially applied "use" immunity
authorized by both decisions of the United
States Supreme Court and our Wisconsin
Supreme Court would be a preferable

In Lefkowitz v. Turley, 414 U.S. 70 (1973),
after surveying numerous previous cases
implicating an individual's fifth amendment
rights, the United States Supreme Court

   In any of these contexts, therefore, a
   witness protected by the privilege may
   rightfully refuse to answer unless and
   until he is protected at least against
   the use of his compelled answers and
   evidence derived therefrom in any
   subsequent criminal case in
   which he is a defendant.

Kastigar v. United States,
406 U.S. 441,
92 S.Ct. 1653,
32 L.Ed.2d 212 (1972).

Absent such protection, if he is nevertheless
compelled to answer, his answers are
inadmissible against him in a later
criminal prosecution.

Lefkowitz, 414 U.S. at 78.

77 OAG 4 5 6 7 8 9 10 11 12 13 14 15 16 17

Subsequently, in Baxter, the prison
disciplinary hearing case,
the Court stated

   if inmates are compelled in those
   proceedings to furnish testimonial
   evidence that might incriminate them in
   later criminal proceedings, they must be
   offered "whatever immunity is required
   to supplement the privilege" and may not
   be required to "waive such immunity."

Baxter, 425 U.S. at 317.

The Wisconsin Supreme Court has already
fashioned such limited "use" immunity.

State v. Evans,
77 Wis.2d 225,
252 N.W.2d 664 (1977),
the court resolved the issue of a
defendant's fifth amendment rights being
sacrificed by statements made to a probation
officer by holding that:

   Statements or the fruits of statements
   made by a probationer to his probation
   agent or in a probation revocation
   hearing in response to questions which,
   as here, are the result of pending
   charges or accusations of particular
   criminal activity, may not be used to
   incriminate the probationer in a
   subsequent criminal proceeding.

Evans, 77 Wis.2d at 227-28.

In Evans, the court further stated:

   In order to guarantee the fifth
   amendment rights of a probationer or a
   parolee and at the same time to preserve
   the integrity of the probation system,
   we hold that upon timely objection in
   criminal proceedings, the testimony of a
   probationer or a parolee given in
   response to questions by a probation or
   parole agent or at a probation or parole
   revocation hearing, which questions are
   prompted by pending charges or
   accusations of particular criminal
   activity, or any evidence derived from
   such testimony, is inadmissible against
   the probationer or parolee during
   subsequent proceedings on related
   criminal charges except for purposes of
   impeachment or rebuttal where his
   testimony at the criminal proceeding is
   clearly inconsistent with the statements
   made previously.

   In such case the trial court may admit
   the revocation testimony or its fruits
   for the purpose of showing the
   probability that the probationer or
   parolee has committed perjury.

Evans, 77 Wis.2d at 235-36 .

Likewise, testimony presented by a criminal
defendant at a confession suppression hearing
is inadmissible at the criminal trial.

State ex rel. Goodchild v. Burke,
27 Wis.2d 244, 265,
133 N.W.2d 753 (1965).

77 OAG 4 5 6 7 8 9 10 11 12 13 14 15 16 17

A similar rationale is appropriate
in the present context.

If the perceived dilemma were to exist, it
would be proper to allow an individual to
testify at the refusal hearing without fear
that the testimony could be used in a
subsequent substantive OWI trial.

This form of limited judicially created and
judicially applied "use" immunity would not
be burdensome upon prosecutors because the
nature of issues addressed at the refusal
hearing do not allow for incriminating or
inculpatory statements.

Rather, those issues encourage only
explanations favorable to the individual.

Although I believe that my response to
question 3 is determinative of both questions
4 and 5, I will briefly address the concerns
in each of those questions.

In question 4, you ask if in order to grant a
stay, an individual must demonstrate an
actual and/or substantial possibility
of self-incrimination.

You derive that standard from
a federal decision.

Liljenfeldt v. United States,
588 F.Supp. 966 (E.D. Wis. 1984).

However, that standard is really no different
than the standard approved,
In Matter of Grant,
83 Wis.2d 77, 82,
264 N.W.2d 587 (1978) Ä

the fear of self-incrimination must be
"real and appreciable," "not merely
an imaginary possibility of danger."

In my opinion, if such a situation of "real
or appreciable" danger could be shown, a
requirement akin to either of the two
stated standards would be acceptable and
within the discretion of a circuit court.

Your question 5 inquires regarding the
necessity or availability of immunity
to replace the potential loss of the
privilege of self-incrimination.

My previous response to question 3
demonstrates that I believe that a form of
judicially created and judicially applied
"use" immunity would be appropriate to
supplant any claim of a loss of the
privilege against self-incrimination.



In addition to a "failure of proof"
defense relating to the statutory identified
elements at a refusal hearing, the implied
consent law establishes an affirmative
defense available to the accused.

If an individual can demonstrate by a
preponderance of the evidence that the
refusal to submit to a test was due to
a physical inability to submit to the
test caused by a physical disability
or disease unrelated to the use of
alcohol, controlled substances or
drugs, the refusal was not unlawful.

Section 343.305(3)(b), (5)(d), Stats.


If in a particular case the OWI charge
is not criminal, self-incrimination concerns
would have no validity whatsoever, either to
support a claim that the refusal hearing must
be stayed, or to support a claim that the
trial court, in the exercise of its
discretion, should grant a stay
because of those concerns.

Allen v. Illinois, 478 U.S. 364 (1986).

77 OAG 4 5 6 7 8 9 10 11 12 13 14 15 16 17