Background
Jorge Luis Perez-Aldape was involved in a serious motorcycle accident after a car failed to yield the right-of-way. Perez-Aldape and his passenger were injured. At the time of the crash, Perez-Aldape was operating his motorcycle with a revoked license stemming from a prior OWI offense, which also meant he was subject to a prohibited alcohol concentration (PAC) of .02. He admitted to an officer that he had a drink before the accident, but the officer did not detect an odor of alcohol.
While Perez-Aldape was being treated for his injuries at the hospital, the responding officer requested a blood sample. The officer testified he did not believe he had probable cause to suspect drunk driving but was acting under Wisconsin’s implied consent law, which allowed for such a request in accidents causing great bodily harm where the driver committed any traffic violation (in this case, operating while revoked).
Crucially, the officer did not read Perez-Aldape the “informing-the-accused” advisory required by WIS. STAT. § 343.305(4), which explains the consequences of refusing a chemical test. Despite this omission, Perez-Aldape agreed to the blood draw. He later moved to suppress the results, arguing his consent was not valid because he was not given the mandatory statutory warnings.
The Court’s Holding
The Wisconsin Court of Appeals affirmed the circuit court’s order to suppress the blood test evidence. The court held that the officer’s failure to read the informing-the-accused advisory rendered Perez-Aldape’s consent invalid because it was not knowingly and intelligently given.
The State argued that a prior supreme court case, State v. Blackman, prevented the officer from reading the standard advisory because it inaccurately stated that refusal would lead to license revocation—a penalty that doesn’t apply when there’s no probable cause for OWI. However, the appellate court rejected this interpretation. It clarified that Blackman did not permit officers to skip the advisory entirely. Instead, Blackman required officers to adapt the advisory’s language to the specific circumstances to ensure it was accurate.
The court found that the statute is unequivocal: an officer “shall read” the advisory when requesting a test under this authority. The proper procedure would have been for the officer to read the advisory and modify the consequence for refusal to state that Perez-Aldape “may be arrested,” which was the correct potential penalty in his situation. Because the officer failed to provide any advisory at all, he violated the statute, and the resulting consent was invalid.
Key Takeaways
- Law enforcement in Wisconsin must read the “informing-the-accused” advisory when requesting a chemical test under the implied consent statute, even in accident cases where there is no probable cause for OWI.
- If the standard statutory advisory contains inaccurate information about the penalties for refusal, officers must tailor the language to be accurate for the specific circumstances; they cannot simply omit the warning altogether.
- Failing to provide the mandatory statutory advisory, even if it requires modification, can render a driver’s consent to a blood draw invalid, leading to the suppression of the test results in court.
Why It Matters
This decision provides important clarity for law enforcement and legal practitioners on the procedural requirements for obtaining blood samples under Wisconsin’s implied consent law. It reinforces that the duty to inform a driver of their rights and the consequences of refusal is mandatory, even when the standard script doesn’t perfectly fit the situation. The ruling places the responsibility on officers to know the law, understand its nuances as interpreted by the courts, and adapt their procedures to protect a defendant’s statutory and constitutional rights.
For attorneys, this case highlights a critical procedural checkpoint for challenging the admissibility of chemical evidence. It reaffirms the principle that for consent to be legally valid, it must be fully and accurately informed. The ruling underscores that a procedural failure—like not reading a required warning—can be just as fatal to the state’s case as a lack of probable cause.