State v. Roman C. Ozimek

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 22, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP452 Cir. Ct. No. 2017TR768

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN THE MATTER OF THE REFUSAL OF ROMAN C. OZIMEK:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ROMAN C. OZIMEK,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Brown County:
KENDALL M. KELLEY, Judge. Affirmed.

¶1 HRUZ, J.1 Roman Ozimek appeals an order revoking his privilege
to operate a motor vehicle for one year based upon his refusal to submit to an

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2019-20). All
references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2021AP452

evidentiary blood draw. Ozimek argues that the circuit court erroneously ignored
certain evidence when determining whether the arresting law enforcement officer
complied with WIS. STAT. § 343.305(4). In particular, he contends the court
should have considered evidence that the officer misinformed Ozimek of his
“constitutional right” to obtain his own chemical testing without having to first
consent to the officer’s request for chemical testing. Ozimek argues that it does
not matter that this alleged misinformation was provided after the officer had
correctly read the information required in § 343.305(4), and Ozimek had refused
the requested test.

¶2 We reject Ozimek’s arguments, in large part, because he fails to
respond to—and therefore concedes—the State’s arguments. Even if Ozimek had
filed a reply brief, we conclude that Ozimek has not established that law
enforcement failed to comply with WIS. STAT. § 343.305(4). In addition, to the
extent Ozimek is raising a constitutional claim, we conclude that he is not entitled
to his request for “dismissal of the refusal charge.” Accordingly, we affirm.

BACKGROUND

¶3 For purposes of this appeal, the following facts are undisputed. In
the early morning hours of January 8, 2017, Officer Tyler Dawson of the De Pere
Police Department observed a vehicle traveling in the wrong direction on a
one-way street. Dawson activated his car’s emergency lights, conducted a traffic
stop, and identified Ozimek as the driver of the vehicle. Ozimek admitted that he
was coming from a bar, and Dawson observed that Ozimek had slurred speech and
glossy, bloodshot eyes and that a strong “odor of intoxicants” was emanating from
Ozimek’s vehicle.

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¶4 After Officer Dawson stopped Ozimek, Officer Nicholas Walvort of
the Green Bay Police Department responded to the traffic stop to provide
assistance. Walvort asked Ozimek if he would be willing to perform standardized
field sobriety tests. Although Ozimek initially agreed to Walvort’s request,
Ozimek later said he did not want to perform the tests. Ozimek was subsequently
arrested for operating a motor vehicle while intoxicated (OWI) and transported to
a hospital for a blood draw.

¶5 At the hospital, Officer Walvort read an Informing the Accused form
verbatim to Ozimek. That form contained the information and warnings set forth
in WIS. STAT. § 343.305(4). Walvort then asked if Ozimek would consent to a
blood draw for chemical testing, to which Ozimek responded, “[N]o.” Almost
immediately after saying no, Ozimek asked whether there would be further testing,
and Walvort responded that Ozimek “would have to consent to the initial test to be
allowed those other tests.” Ozimek then asked “what he should do,” and Walvort
responded that he could not provide any legal advice. Ozimek did not change his
mind and refused the blood draw. Walvort subsequently gave Ozimek a form
providing notice of intent to revoke Ozimek’s operating privilege. See
§ 343.305(9)(a). Walvort also obtained a warrant to procure the blood draw,
which apparently showed that Ozimek’s blood alcohol concentration (BAC) was
over the legal limit.

¶6 Ozimek filed a timely request for a refusal hearing on the revocation.
Thereafter, the circuit court held a hearing, at which both Officer Dawson and
Officer Walvort testified. During the cross-examination of Walvort, the State
objected to testimony that Ozimek was told he could not obtain his own testing
without first consenting to the requested chemical tests. The State argued that this
statement would be irrelevant because it occurred after Ozimek had refused to

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consent to the blood draw. The court held the objection in abeyance to allow the
parties to brief the issue.

¶7 Following briefing, the circuit court sustained the State’s objection.
Relying on State v. Rydeski, 214 Wis. 2d 101, 571 N.W.2d 417 (Ct. App. 1997),
the court recognized that

once a person has been properly informed of the implied
consent statute, that person must promptly submit or refuse
to submit to the requested test, and … upon a refusal, the
officer may “immediately” gain possession of the accused’s
license and fill out the Notice of Intent to Revoke form.

See id. at 109. The court further noted Rydeski’s holding that a person’s refusal is
“conclusive” and “not dependent upon such factors as whether the accused recants
within a ‘reasonable time.’” See id. Ultimately, the court concluded that because
Officer Walvort accurately read the Informing the Accused form and Ozimek
refused to submit to a blood draw, any subsequent discussion between Walvort
and Ozimek was irrelevant.

¶8 The circuit court later issued a written order finding that Ozimek
unreasonably refused to submit to chemical testing. The court subsequently
revoked Ozimek’s privilege to operate a motor vehicle for one year. See WIS.
STAT. § 343.305(10)(b)2.

¶9 Ozimek now appeals. Additional facts will be provided as necessary
below.

DISCUSSION

¶10 Under Wisconsin’s implied consent law, any person who operates a
motor vehicle upon the public highways in Wisconsin is deemed to have given

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consent to one or more tests of his or her breath, blood or urine, for the purpose of
determining the presence or quantity of alcohol or controlled substances, when
lawfully requested by a law enforcement officer. WIS. STAT. § 343.305(2). Upon
the arrest of a person for OWI under WIS. STAT. § 346.63(1), an officer may ask
the driver to provide one or more samples of breath, blood or urine for chemical
testing. Sec. 343.305(3)(a). At the time an officer requests a sample, the officer
must read the information and warnings set forth in § 343.305(4), which are
generally incorporated into a form entitled “Informing the Accused.” See State v.
Schmidt, 2004 WI App 235, ¶10, 277 Wis. 2d 561, 691 N.W.2d 379.

¶11 If the driver refuses to take the test, the officer “shall immediately
prepare a notice of intent to revoke … the person’s operating privilege.” WIS.
STAT. § 343.305(9)(a). The driver may then ask a court to review the revocation
at a refusal hearing. See § 343.305(9)(a)4. The issues at a refusal hearing are
limited to: (1) whether the officer had probable cause to believe the person was
operating a motor vehicle under the influence of alcohol; (2) whether the person
was lawfully arrested for violation of an OWI-related statute; (3) whether the
officer complied with § 343.305(4) by providing the necessary information; and
(4) whether the person refused to test for any reason other than because of a
physical inability to test due to physical disability or disease that is unrelated to
intoxication. Sec. 343.305(9)(a)5.; see also State v. Anagnos, 2012 WI 64, ¶27,
341 Wis. 2d 576, 815 N.W.2d 675. If a court resolves one or more of these issues
in favor of the driver, “the court shall order that no action be taken on the
operating privilege on account of the person’s refusal to take the test in question.”
Sec. 343.305(9)(d).

¶12 In this appeal, Ozimek frames his arguments around the third
issue—i.e., whether Officer Walvort complied with WIS. STAT. § 343.305(4). See

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§ 343.305(9)(a)5.b. In doing so, Ozimek appears to advance two intertwined but
seemingly separate arguments. He first argues that it would have been relevant to
the circuit court’s inquiry under § 343.305(9)(a)5.b. to determine whether he
received “misinformation” about his right to collect his own chemical testing after
he had refused the chemical testing requested by Walvort. Relatedly, Ozimek also
contends that this misinformation impacted his “fundamental constitutional right”
to “gather evidence” because he had a right to obtain his own chemical testing
regardless of whether he submitted to Walvort’s request for a blood draw.

¶13 In response, the State largely ignores the issue of whether the alleged
misinformation was relevant per se. Instead, the State appears to argue that even if
the alleged misinformation was relevant, Ozimek still could not establish that
Officer Walvort failed to comply with WIS. STAT. § 343.305(4). The State also
contends that Ozimek did not have a constitutional right to collect his own
chemical testing. Significantly, Ozimek did not file a reply brief responding to
these arguments, nor did he anticipatorily address them in his brief-in-chief.

¶14 Similar to the State’s approach, we will assume, without deciding,
that the alleged misinformation was relevant to the circuit court’s inquiry under
WIS. STAT. § 343.305(9)(a)5.b.2 We therefore must determine whether, based
2
We note, however, that Ozimek’s argument regarding the relevancy of the alleged
misinformation is deficient in multiple respects. First, Ozimek’s relevancy argument largely
ignores the basis for the circuit court’s decision. Ozimek neither cites Rydeski—which the circuit
court determined was controlling—in his appellate brief nor does he distinguish Rydeski’s
holding that a driver “must promptly submit to or refuse” the requested test “once [the driver] has
been properly informed” under WIS. STAT. § 343.305(4). See State v. Rydeski, 214 Wis. 2d 101,
109, 571 N.W.2d 417 (Ct. App. 1997). Second, Ozimek does not attempt to show how Officer
Walvort’s statements after Ozimek had unequivocally refused the blood draw were probative of
whether Walvort complied with § 343.305(4). See WIS. STAT. § 904.01. By failing to address
the grounds for the court’s decision, Ozimek concedes the validity of the court’s ruling. See West
Capitol, Inc. v. Village of Sister Bay, 2014 WI App 52, ¶49, 354 Wis. 2d 130, 848 N.W.2d 875.
Accordingly, Ozimek’s relevancy argument is unconvincing.

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upon the undisputed facts, Officer Walvort complied with § 343.305(4). The
interpretation of § 343.305 and its application to undisputed facts are questions of
law that we review de novo. See Washburn County v. Smith, 2008 WI 23, ¶55,
308 Wis. 2d 65, 746 N.W.2d 243.

¶15 Where, as here, a law enforcement officer provided all of the
statutorily required information but then allegedly provided more information than
that provided in WIS. STAT. § 343.305(4), courts employ a three-part test to
determine whether the officer complied with § 343.305(4). See Smith, 308
Wis. 2d 65, ¶72. Pursuant to that test, an officer has not complied with
§ 343.305(4) if: (1) the officer has exceeded his or her duty under § 343.305(4) to
provide information to the accused; (2) the officer’s oversupply of information
was misleading or erroneous; and (3) the officer’s failure to properly inform the
driver affected the driver’s ability to make the choice about chemical testing.3 See

3
Ozimek argues that if “there has been a misstatement of the law [that has affected a
constitutional right], then the accused’s operating privilege may not be revoked … regardless of
whether the erroneous information has caused ‘actual harm’ to the accused.” We construe this
argument as addressing the third prong of this test, even though Ozimek never explicitly says as
much. Ozimek, however, fails to identify any legal authority establishing or supporting the
proposition that we do not consider the third prong when the misinformation involves a purported
constitutional right. He also fails to address the State’s argument that we must consider whether
the alleged misinformation affected Ozimek’s decision to submit to testing. Ozimek therefore
concedes the State’s argument. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90
Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted arguments may be deemed
conceded).

In any event, we agree with the State that we must address the third prong because it is
undisputed that Officer Walvort provided the “statutorily required information” by reading the
Informing the Accused form verbatim, but he also provided additional information explaining
whether there would be further testing. See Washburn County v. Smith, 2008 WI 23, ¶72, 308
Wis. 2d 65, 746 N.W.2d 243 (holding that the three-prong test applies to cases “in which the law
enforcement officer provided all the statutorily required information but then provided more
information in excess of his [or her] duty under [WIS. STAT.] § 343.305(4).”).

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State v. Ludwigson, 212 Wis. 2d 871, 875, 569 N.W.2d 762 (Ct. App. 1997); see
also Smith, 308 Wis. 2d 65, ¶56 & n.43, ¶72.

¶16 The State concedes that the first prong has been met because Officer
Walvort provided extra information when Ozimek asked about further testing.
The State argues, however, that Ozimek has not established the second or third
prongs. Specifically, the State contends that the extra information was “not
necessarily erroneous [or] misleading” because, according to the text of WIS.
STAT. § 343.305(4), “the option of taking further tests is predicated upon taking
the requested tests.” The State also asserts that Ozimek cannot demonstrate that
the extra information affected his decision to refuse chemical testing because he
refused testing before Walvort provided the excess information.

¶17 Again, Ozimek never responds to these arguments. He did not file a
reply brief, and he therefore never addressed the three-prong test for determining
whether an officer failed to comply with WIS. STAT. § 343.305(4) by providing
extra information. As a result, Ozimek has conceded the State’s arguments. See
United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738
N.W.2d 578 (appellant’s failure to respond in reply brief to an argument made in
response brief may be taken as a concession); Charolais Breeding Ranches, Ltd.
v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979)
(unrefuted arguments may be deemed conceded). We accept Ozimek’s concession
that Officer Walvort complied with § 343.305(4).

¶18 Nevertheless, we observe that the State’s arguments are correct. As
relevant here, WIS. STAT. § 343.305(4) requires that law enforcement inform the
driver:

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If you take all the requested tests, you may choose to take
further tests. You may take the alternative test that this law
enforcement agency provides free of charge. You also may
have a test conducted by a qualified person of your choice
at your expense. You, however, will have to make your
own arrangements for that test.

(Emphasis added.) Thus, the plain language of § 343.305(4) conditions a driver’s
right to take further tests—including the driver’s own tests—on the driver first
submitting to the requested tests. See also Schmidt, 277 Wis. 2d 561, ¶11 (“[I]t is
clear from [§ 343.305(4) and (5)] that the accused does not have a right to choose
a test instead of the one the officer asks him or her to take; rather, the ‘alternative
test’ is in addition to that test.”). Therefore, by telling Ozimek that he could not
obtain any other chemical testing unless he first consented to the blood draw,
Officer Walvort did not provide any misleading or erroneous information under
§ 343.305(4). See Ludwigson, 212 Wis. 2d at 875.

¶19 Likewise, Ozimek has not shown that the alleged misinformation
affected his ability to make his choice about agreeing to the requested chemical
testing. See id. To prevail on this third prong, the driver must produce “sufficient
evidence to make a prima facie showing of a causal connection between the
misleading statements and the refusal to submit to chemical testing.” See Smith,
308 Wis. 2d 65, ¶68. “Once the prima facie evidence has been submitted, the
burden shifts to the State to prove otherwise.” Id. Although this third prong is
generally a question of fact, we may resolve this question as a matter of law if the
driver has not made a prima facie showing of a causal connection. See id., ¶86;
Ludwigson, 212 Wis. 2d at 876-77 (“When a party fails to produce any credible
evidence as to an element, the party fails to meet his or her burden of proof as a
matter of law.”).

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¶20 Here, Ozimek did not produce any evidence showing that he would
have taken the requested chemical testing had he been informed—as he contends
he should have been—that he could obtain his own chemical testing without
consenting to Officer Walvort’s requested test. Ozimek did not testify at the
refusal hearing. Nor did Walvort’s testimony suggest that Ozimek refused
because of the alleged misinformation. It is also undisputed that Ozimek
unequivocally refused the requested chemical testing before receiving the alleged
misinformation, which strongly suggests that the alleged misinformation played no
role in Ozimek’s decision. If anything, Walvort’s alleged misinformation would
have created a greater incentive for Ozimek to consent to the requested test
because Ozimek would have needed to consent if he truly wanted to obtain his
own chemical testing. Nevertheless, Ozimek never consented to the requested
chemical testing. In short, the record contains no evidence suggesting a causal
connection between the alleged misinformation and Ozimek’s refusal.

¶21 We do recognize, however, that Ozimek’s argument that he received
misinformation is not solely premised on the text of WIS. STAT. § 343.305(4).
Rather, his argument is primarily based on his belief that he had a constitutional
right to gather evidence. Ozimek asserts that this right is “well-settled” and
“long-standing,” yet he fails to identify a single case establishing that a defendant
has an unfettered right to obtain evidence, especially in a context similar to the
implied consent one at issue here. In any event, even if we assumed that Ozimek
had been misinformed about a constitutional right to obtain his own chemical
testing and that this misinformation could be considered in a court’s inquiry under
§ 343.305(9)(a)5.b., Ozimek still has not produced any evidence that this
misinformation affected his ability to decide whether to submit to the requested

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chemical testing. Therefore, he still could not establish the third prong of our test.
See Ludwigson, 212 Wis. 2d at 875.

¶22 Finally, Ozimek seems, at times, to step beyond his claim about
being misinformed, and he appears to suggest that Officer Walvort actually
interfered with and violated Ozimek’s “constitutional right” to obtain his own
chemical testing. In particular, Ozimek contends that “dismissal of the refusal
charge is the only appropriate remedy in a case in which the government has
interfered with the accused’s right to access this additional evidence.” Ozimek
asserts that State v. McCrossen, 129 Wis. 2d 277, 385 N.W.2d 161 (1986),
supports this proposition.

¶23 Not only does McCrossen not support Ozimek’s argument, it
demonstrates that “dismissal of the refusal charge” would not be an appropriate
remedy in this case. In McCrossen, the defendant was arrested for OWI and was
given a breathalyzer test, which indicated that her BAC was “.24 percent.” Id. at
281. The defendant immediately asked for a second test, but it was never
administered. Id. at 281-82. After the defendant was charged with OWI, the
circuit court suppressed the initial breathalyzer test because the defendant’s
statutory right to a second test was violated, but the court also determined that
there was no constitutional violation that would require dismissal of the OWI
charge. Id. at 282-83. The defendant was later convicted at a jury trial. Id. at
284.

¶24 On appeal, our supreme court considered “whether the denial of a
second test deprived the defendant of constitutionally material evidence, and
thereby required dismissal of the charge.” Id. at 288. To resolve that issue, the
court considered several United States Supreme Court cases that set forth “the

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relevant test for determining whether sanctions are required when a defendant is
denied access to evidence.” Id. at 290-94. The court recognized that, under those
cases, the defendant must show that the unavailable evidence at issue was
“material” in a constitutional sense. Id. at 291-94. The court further noted the
Supreme Court’s explanation that “evidence is material only if there is a
reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” Id. at 294 (quoting United
States v. Bagley, 473 U.S. 667, 682 (1985)). In the end, the court concluded that
the defendant had not been denied “access to material evidence, in a constitutional
sense,” because the defendant had not made “a plausible showing that an
alternative test would have been favorable.” Id. at 296-97.

¶25 In this case, Ozimek has neither argued nor shown that the potential
results from his own chemical testing would have been constitutionally material to
the circuit court’s determination under WIS. STAT. § 343.305(9)(d). In other
words, he has not demonstrated a reasonable probability that if he had been able to
obtain his own chemical testing, those test results would have changed the
outcome of one of the limited issues considered at the refusal hearing. See
McCrossen, 129 Wis. 2d at 294; see also § 343.305(9)(a)5. Notably, Ozimek’s
BAC would have little, if any, evidentiary value to the court’s consideration of
whether Officer Walvort had probable cause to believe Ozimek was operating
while under the influence of alcohol, whether Walvort lawfully arrested Ozimek,
whether Walvort complied with § 343.305(4), and whether Ozimek refused the
requested tests.4 See § 343.305(9)(a)5. Accordingly, to the extent Ozimek is
4
In addition, we note that the record is not entirely clear whether Ozimek actually
wanted to obtain his own chemical testing or whether Officer Walvort prevented Ozimek from
doing so.

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raising a separate constitutional challenge to the order on appeal, we conclude that
Ozimek is not entitled to his request for “dismissal of the refusal charge.”5

¶26 In sum, we conclude that Officer Walvort complied with WIS. STAT.
§ 343.305(4) and that Ozimek has not established a constitutional violation
requiring dismissal.6 Accordingly, the circuit court did not err by revoking
Ozimek’s privilege to operate a motor vehicle for one year.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

5
At times, Ozimek appears to rely on State v. Walstad, 119 Wis. 2d 483, 351 N.W.2d
469 (1984), to support his arguments that he has a constitutional right to obtain his own chemical
testing and that “dismissal of the refusal charge” is the appropriate remedy for a violation of that
right. We disagree that Walstad supports either of these propositions. “Walstad stands for the
proposition that a second test is a due process safeguard only because it permits impeachment of
a prior alcohol concentration test result.” State v. McCrossen, 129 Wis. 2d 277, 288, 385 N.W.2d
161 (1986) (emphasis added). Walstad therefore does not support Ozimek’s argument that he has
a constitutional right to obtain his own chemical testing regardless of whether there was an initial
test. Moreover, even though there was no due process violation in Walstad, “the sanction in that
case if due process had been violated was only suppression of the state’s breathalyzer test result.”
McCrossen, 129 Wis. 2d at 289. Accordingly, Walstad does not support Ozimek’s argument that
“dismissal of the refusal charge” is the appropriate remedy.

To the extent we do not directly address any of Ozimek’s other cited case law, we note
that none of those cases conflict with our analysis or conclusion.
6
We may affirm on different grounds than those relied on by the circuit court. State v.
Earl, 2009 WI App 99, ¶18 n.8, 320 Wis. 2d 639, 770 N.W.2d 755.

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