State v. Renard

In State v. Renard, 123 Wis. 2d 458, 367 N.W.2d 237 (Ct. App. 1985), an officer arrested Renard for motor vehicle while under the influence of an intoxicant (OMVWI) at a hospital where he was being treated for injuries from an automobile accident. The following ensued after the arrest: "The officer requested Renard to permit a blood sample to be drawn for a blood alcohol test. Renard requested that a breathalyzer test be performed instead. The officer persuaded Renard to consent to the blood test because the blood sample could be drawn at the hospital. A breathalyzer test apparently could not be performed at the hospital, and Renard's doctor was unsure whether Renard would be hospitalized overnight. Renard and his wife claim that he continued to request the breathalyzer test after he consented to the blood test. The officer denies this contention. After the blood sample was drawn, the officer left the hospital without inquiring again whether Renard would be hospitalized overnight. The hospital released Renard shortly after the officer left. The release occurred less than two hours after Renard's accident." (Id. at 460.) The Court upheld the trial court's finding that Renard had requested a breathalyzer test in addition to the blood test, and concluded that "the police therefore had a duty to perform an additional test because Renard consented to the blood test." Id. The Court affirmed the order suppressing the blood test result because the "duty to perform the requested additional test became mandatory after Renard submitted to a blood test." Id. at 461. The Court further noted that since Renard was released from the hospital within three hours of the accident, "the police could have timely performed a second test," and should have done so because Renard's request for an additional test required the officer to make a "diligent effort" to comply. See 123 Wis. 2d at 460-461. In sum, the suspect asked for the department's alternate breath test after he had submitted to the department's primary blood test. But the officer left the hospital without addressing the suspect's alternate test request. See Renard, 123 Wis. 2d at 460. The court of appeals held that the officer had failed to comply with Wis. Stat. 343.305(5) because "he failed to make a reasonable inquiry concerning the expected time of Renard's release." The court stated, "Because three hours did not lapse between the time of Renard's accident and his release from the hospital, the police could have timely performed the requested second breath test." Renard, 123 Wis. 2d at 460.