Schmidt makes a three-pronged attack on the revocation of his driving privileges for refusing a chemical test, arguing he was seized without reasonable suspicion, arrested without probable cause, and did not improperly refuse a test. The court of appeals rejects each claim.
First: Schmidt wasn’t seized by police. He had pulled onto the side of the road and was looking at his truck because he had hit a guard rail when the officer pulled up behind him and activated his emergency lights as a precaution. No seizure, no need for reasonable suspicion. (¶¶4, 12-13).
Second: There was probable cause to arrest Schmidt: It was about 3:00 in the morning; another motorist, who also stopped nearby, had alerted police to the erratic driving of a vehicle matching the description of Schmidt’s truck in the area Schmidt was found; Schmidt admitted he’d hit a guard rail, exhibited the usual indicia of having been drinking alcohol, and failed the FSTs. (¶¶3-5, 16-17).
Third: Schmidt improperly refused a chemical test. After being asked to submit to a breath test, Schmidt said he’d only do a blood test with his lawyer present. The officer responded they would take blood if he consented, but would not wait for his lawyer to arrive. Schmidt reiterated several times that he would not submit to a test without his lawyer and was told multiple times that waiting for his lawyer “wasn’t an option.” (¶6).
There is no statutory or constitutional right to the assistance of counsel in deciding whether to submit to a chemical test, State v. Neitzel, 95 Wis. 2d 191, 205, 289 N.W.2d 828 (1980). Thus, “wanting to first consult with counsel before deciding whether to submit to a [chemical] test is not a valid reason to refuse and an officer is on solid grounds in marking a refusal if the custodial defendant relies on this explanation for not immediately agreeing to take the [chemical] test.” State v. Verkler, 2003 WI App 37, ¶8, 260 Wis. 2d 391, 659 N.W.2d 137. There’s a “narrow exception” to this rule: “If the officer explicitly assures or implicitly suggests that a custodial defendant has a right to consult counsel, that officer may not thereafter pull the rug out from under the defendant if he or she thereafter reasonably relies on this assurance or suggestion.” Id.
The questions, then, are whether Schmidt the defendant was “told he has the right to consult with counsel before deciding to submit to chemical testing” and, if so, whether he “relied on the assurance or suggestion when responding to the request for a chemical test.” State v. Kliss, 2007 WI App 13, ¶13, 298 Wis. 2d 275, 728 N.W.2d 9 (2006). The answer to the first question is “no”:
¶20 In this instance, the circuit court correctly determined that Schmidt improperly refused to submit to the chemical test. The court did not err in rejecting Schmidt’s suggestion that his own statements to [Officer] Schultz that he would not agree to the tests without his lawyer provided a basis to conclude that he was entitled to an attorney. Schultz unequivocally told [Schmidt] that the police were not going to wait for his attorney. This response communicated that Schmidt was not entitled to an attorney, not the opposite. Nothing about the fact that Schultz first checked with his supervisor suggests otherwise. To the extent that there was any question, Schultz then asked five to ten more times whether Schmidt would agree to take the test—each time Schmidt refused.