State v. Devron Michael Green

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.
March 5, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2024AP1104 Cir. Ct. No. 2023TR7531

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DEVRON MICHAEL GREEN,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Winnebago
County: TERESA S. BASILIERE, Judge. Affirmed in part, reversed in part.

¶1 NEUBAUER, J.1 Devron Michael Green appeals from a judgment
entered after he pled guilty to one count of operating while intoxicated (OWI),

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise noted.
No. 2024AP1104

first offense, contrary to WIS. STAT. § 346.63(1)(a). As part of the sentence
imposed pursuant to the plea, the circuit court ordered that an ignition interlock
device (IID) be installed on Green’s automobile. Green contends that the court
erred in ordering the IID because the State did not establish any of the criteria
under WIS. STAT. § 343.301(1g)(a) for which an IID may be ordered. For the
reasons that follow, this court agrees with Green and thus reverses that portion of
the judgment imposing the IID. Because Green raises no other challenge to the
judgment, it is affirmed in all other respects.

¶2 The relevant facts are brief and undisputed. In August 2023, Green
was cited for OWI, operating with a restricted controlled substance, and refusing
to submit to a blood test. Green pled not guilty, demanded a jury trial, and
requested a hearing on the refusal citation. At a pretrial conference in May 2024,
the parties informed the circuit court that they had reached an agreement under
which Green would plead guilty to OWI and his license would be suspended for
six months. In addition, the State agreed to dismiss charges of operating with a
restricted controlled substance and refusing to submit to a blood test, and the
parties would be “free to argue regarding the installation of the interlock device.”

¶3 The circuit court accepted the plea and heard argument on the IID.
The State argued that the IID should be ordered even though the refusal charge
was being dismissed because an affidavit from the arresting officer established
that Green had in fact refused to consent to a blood test. Green did not dispute the
contents of the affidavit but argued that the dismissal of the refusal citation
deprived the court of authority to order the IID. The court rejected Green’s
argument, stated that “there was a refusal here,” and ordered that an IID be
installed for twelve months.

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¶4 On appeal, Green renews his argument that the circuit court lacked
authority under WIS. STAT. § 343.301(1g)(a) to order the IID. His argument turns
on the proper interpretation and application of the statute’s text to the facts
presented. This presents a question of law that this court reviews de novo. Bank
Mut. v. S.J. Boyer Constr., Inc., 2010 WI 74, ¶21, 326 Wis. 2d 521, 785 N.W.2d
462.

¶5 WISCONSIN STAT. § 343.301 governs the installation of IIDs. Under
that statute, “[a] court shall enter an order” restricting an individual’s driving
privileges to vehicles equipped with an IID if the individual “improperly refused
to take a test under [WIS. STAT. §] 343.305.” Sec. 343.301(1g)(a)1.2 Green argues
that the IID order must be reversed because the circuit court did not find that he
had improperly refused a test under § 343.305. He contends that the court did not
make a “proper determination” that he had improperly refused a test because it
dismissed the refusal charge “without any further inquiry into whether Mr. Green
improperly refused the chemical test.” Absent such a determination, Green
argues, the court could not order the IID.

¶6 In response, the State contends that WIS. STAT. § 343.301(1g) does
not establish a “quantum of evidence or procedural requirements necessary to
sustain” a determination that there was an improper refusal. The State relies on
the affidavit prepared by the arresting officer to obtain a search warrant for a blood

2
An IID order is also required if an individual violates certain statutes related to the
operation of a vehicle while intoxicated and either (1) “had an alcohol concentration of 0.15 or
more at the time of the offense” or (2) “has … one or more prior convictions, suspensions, or
revocations, counting convictions under [WIS. STAT. §§] 940.09(1) and 940.25 in the person’s
lifetime and other convictions, suspensions, and revocations counted under [WIS.
STAT. §] 343.307(1).” WIS. STAT. § 343.301(1g)(a)2.a.-b. The State does not argue that Green
satisfies these conditions.

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sample. In the affidavit, the officer wrote that an individual had reported a vehicle
swerving, nearly striking her, and then pulling over to the side of the interstate.
The officer also averred that Green smelled of alcohol, had bloodshot eyes, and
exhibited multiple clues on field sobriety tests. Finally, the officer indicated that
the “Informing the Accused” form had been read to Green and that he “refused to
submit to the blood test requested by the police officer.” The State argues that the
affidavit, along with the prosecutor’s remarks at the pretrial hearing, are sufficient
to establish an improper refusal.

¶7 This court begins, as it must, with the relevant statutory text. See
State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d
633, 681 N.W.2d 110. This court must interpret that text “in the context in which
it is used; not in isolation but as part of a whole; in relation to the language of
surrounding or closely-related statutes; and reasonably, to avoid absurd or
unreasonable results.” Id., ¶46.

¶8 As noted above, WIS. STAT. § 343.301(1g)(a)1. provides for the
entry of an IID order if a “person improperly refused to take a test under [WIS.
STAT. §] 343.305.” Though this statutory provision does not specify any particular
hearing, burden of proof, or other procedural requirements that must precede a
determination that a person has “improperly refused to take a test,” it does specify
that the improper refusal must be “under [§] 343.305.” This reference to
§ 343.305 is significant because it indicates that an improper refusal as determined
“under” that statute will support an IID order.

¶9 Subsection (9) of WIS. STAT. § 343.305 addresses refusals and sets
out the process that is to be followed if a person refuses to take a test. Initially, the
person must be issued a notice of intent to revoke his or her operating privileges.

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No. 2024AP1104

Sec. 343.305(9)(a). The notice must inform the person, among other things, that
he or she “may request a hearing on the revocation within 10 days” and that the
hearing will be limited to three issues: (1) whether the officer had probable cause
to suspect intoxicated driving; (2) whether the officer read the Informing the
Accused form; and (3) whether the person refused the test. Sec. 343.305(9)(a)4.-
5.a.-c. If the officer informs the appropriate court of the person’s refusal, “the
court shall be prepared to hold any requested hearing to determine if the refusal
was proper.” Sec. 343.305(9)(c). Within five days after the hearing, the court
must determine the three issues, and if all three are determined adversely to the
person, it “shall proceed under sub. (10).” Sec. 343.305(9)(d). Subsection (10)
provides that “[i]f the court determines under sub. (9)(d) that a person improperly
refused to take a test,” the court must revoke the person’s operating privileges in
accordance with subsection (10). Sec. 343.305(10)(a) (emphasis added). An IID
order may be imposed in connection with the revocation. Sec. 343.305(10m)
(“The requirements and procedures for installation of an ignition interlock device
under [§] 343.301 apply when an operating privilege is revoked under sub. (10).”).

¶10 Reading these provisions in WIS. STAT. §§ 343.301 and 343.305
together, this court concludes that where, as here, a person requests a refusal
hearing, an IID order may be imposed under § 343.301(1g)(a)1. if a court holds
the refusal hearing and makes the three determinations in § 343.305(9)(a)5.a.-c.
adverse to the person. If those adverse determinations are made, the person is
considered to have “improperly refused” the test. This interpretation of
§ 343.301(1g)(a)1. gives effect to its terms, is consistent with the terms of
§ 343.305, and is a reasonable reading of the statutory language.

¶11 Applying this interpretation of WIS. STAT. § 343.301(1g)(a)1. here,
this court concludes that the circuit court’s imposition of an IID order was not

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proper under the statute. To begin, the court did not hold a refusal hearing under
WIS. STAT. § 343.305 before ordering the IID. No such hearing was held because
the State agreed to dismiss the refusal citation. Instead, the court ordered the IID
at the conclusion of a brief pretrial hearing at which it heard no testimony and did
not make all three determinations required under § 343.305(9)(a)5.a.-c. Though
the court did conclude that Green had refused to consent to a blood test, this by
itself is not sufficient to sustain the IID order.

¶12 The State suggests that different procedures may be sufficient to
sustain an IID order, such as a stipulation to the three factual predicates for an
improper refusal.3 Alternately, a court may also make the required factual
determinations even though it ultimately exercises its discretion to dismiss the
improper refusal charge. See State v. Brooks, 113 Wis. 2d 347, 348-49, 335
N.W.2d 354 (1983) (holding that circuit courts have discretion to dismiss an
improper refusal charge where a defendant pleads guilty to an associated OWI
charge and has timely requested a refusal hearing). Neither scenario describes
what occurred in this case. Green did not stipulate to the factual predicates and, as
noted above, the circuit court did make all of the required determinations.
Accordingly, this court need not address whether those alternatives would provide
a basis for upholding the IID order.

By the Court.—Judgment affirmed in part, reversed in part.

3
The State relies on this court’s unpublished opinion in City of Wausau v. Fischer,
No. 2020AP60, unpublished slip op. (WI App Aug. 31, 2021). This court is not obliged to
address unpublished opinions and thus does not discuss it further. See WIS. STAT.
RULE 809.23(3)(b).

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No. 2024AP1104

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

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