Opinion
Case No. 96-1368.
Opinion Released: October 24, 1996. Opinion filed: October 24, 1996. This opinion will not be published. See RULE 809.23(1)(b)4, STATS.
APPEAL from an order of the circuit court for Dane County: P. CHARLES JONES, Judge. Affirmed.
Donald Maier, appealing from an order revoking his motor vehicle operating privileges under the implied-consent law for his refusal to submit to a chemical test of his blood-alcohol content, argues that our decision in State v. Babbitt , 188 Wis.2d 349, 525 N.W.2d 102 (Ct.App. 1994), requires police officers to have probable cause to arrest before requesting such a test.
We held in Babbitt that a driver's refusal to perform a requested field sobriety test is not protected by the Fifth Amendment privilege against self-incrimination and, therefore, may be used to establish probable cause to arrest for driving while intoxicated. Id . at 362, 525 N.W.2d at 106. Maier suggests that some of the language in Babbitt suggests that a motorist is compelled to cooperate — either by performing the test or "providing the incriminating refusal to submit" — which has the effect of turning a stop (which does not require probable cause) into an arrest (which does).
The question is answered by our recent decision in Dane County v. Campshure , ___ Wis.2d ___, 552 N.W.2d 876 (Ct.App. 1996), where we specifically rejected the argument Maier makes here: that a lawful request by an officer constitutes "compulsion" for Fifth Amendment purposes, thus transforming a lawful investigatory stop into an arrest. Id . at ___, 552 N.W.2d at 878.
By the Court. — Order affirmed.