State v. Disch (1986)
In State v. Disch, 129 Wis. 2d 225, 385 N.W.2d 140 (1986), the Court described when a person is presumed not to have withdrawn consent to chemical testing.
In Disch, the court explained that the phrase "otherwise not capable of withdrawing consent" describes a person who has conscious awareness and can respond to sensory stimuli but lacks present knowledge or perception of his or her acts or surroundings. See id. at 235.
In Disch, the supreme court was faced with the situation where the defendant was immediately taken to a hospital after an accident where she signed a written consent form for the taking of a blood sample. However, the officers had not issued a citation and did not give her the information set forth in Wis. Stat. 343.305(4), which is contained in the Informing the Accused form.
The issue became whether the officers may administer a test to a person who is "unconscious or otherwise not capable of withdrawing consent" when there is probable cause to believe the person had operated a motor vehicle while under the influence of an intoxicant. See Disch, 129 Wis. 2d at 234.
If the answer were yes, then it would be unnecessary for the officer to request a chemical test or give the defendant the information set forth in 343.305(4). See Disch, 129 Wis. 2d at 235.
In making its determination, the supreme court warned that the phrase "not capable of withdrawing consent" must be construed narrowly and applied infrequently. It reasoned that if law enforcement officers or the courts construe the phrase "not capable of withdrawing consent" broadly to apply to all persons who are confused or disoriented, the legislative purpose of 343.305 would be defeated. See Disch, 129 Wis. 2d at 235.
Thus, it cautioned that law enforcement officers and the courts should be very reluctant to declare a person "not capable of withdrawing consent." The better practice suggested was that the officer when faced with a defendant who is conscious is to follow the recommended practice of issuing the citation, requesting the person to provide a sample and to give the information under 343.305(4). See Disch, 129 Wis. 2d at 235.