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COA affirms finding of probable cause to arrest for OWI and improper refusal to submit to a blood test

State v. Dustin R. Willette, 2017AP888, District 3, 2/6/18 (1-judge opinion, ineligible for publication); case activity (including briefs)

A police dispatcher informed officer Hughes that a caller saw a man drive into gas station, exit his car, and walk away. Then another officer reported seeing a similarly-dressed man walking down the a road about a mile away. That man was Willette. Officer Hughes picked him up, drove him back to the car at the gas station, performed FSTs, arrested him for OWI, and asked him to submit to a blood test. Willette did not say  “yes” or “no.” He said “I want to speak to a lawyer.” Here’s why the circuit court found probable cause to arrest and improper refusal to submit to a blood test.

Willette argued that the police had no evidence linking him to the car at the gas station. The court of appeals held:

[Officer Hughes] had reason to suspect Willette was the driver of the vehicle when she encountered him because his description matched that of the dispatch report. Willette admitted to Hughes he had been drinking at a wedding that night, which, according to the circuit court, was “to such a point that he had no idea where he was.” After Hughes brought him back to the gas station, Willette admitted he drove a similar vehicle on that night. Hughes then observed a number of clues on all three field sobriety tests that Willette performed. The court properly concluded the totality of the circumstances provided Hughes with probable cause to believe Willette drove the vehicle at issue while intoxicated. Opinion ¶16.

As for Willette’s request for a lawyer before agreeing to consent to a blood test, the court of appeals held:

“[b]ecause the implied consent law makes no provision for the right to counsel, an officer is correct to record a refusal if the arrestee insists on speaking to an attorney before answering.” State v. Kliss, 2007 WI App 13, ¶7, 298 Wis. 2d 275, 728 N.W.2d 9 (2006); see also Reitter, 227 Wis. 2d at 225, 235. Opinion ¶18

Even though Willette never said “no” to Hughes, we conclude his conduct rose to the level of a refusal under the above principles. The circuit court found Willette was not “confused” by either of two accurate readings of the implied consent form. He responded that he wanted to talk to a “legal person” or lawyer after Hughes told him to answer yes or no. Willette misses the point when he emphasizes that his statements indicate he was “attempting to seek clarification” on the right answer. As the circuit court aptly observed, “there is no right answer to whether to take these tests or not. The answer is either yes or no.” Quite simply, Hughes correctly determined Willette refused a blood test when he conditioned his answer on talking to a lawyer. See Kliss, 298 Wis. 2d 275, ¶7. Opinion ¶19

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