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Consent – Coercion — Submission to Chemical test — Threat to Revoke Driver’s License, OWI Arrest

Village of Little Chute v. Todd A. Walitalo, 2002 WI App 211, PFR filed 8/1/02
For Walitalo: Ralph A. Kalal

Issue/Holding:

¶11. However, the arresting officer, by reading the informing the accused form, simply stated the truth: If Walitalo refused to submit to a chemical test, his driving privileges would be revoked. This statement did not involve any deceit or trickery, but instead accurately informed Walitalo of his precise legal situation. See 3 Wayne R. LaFave, Search and Seizure, § 8.2(c) at 652-53 (3d ed. 1996). While police cannot use deceit or trickery, they are entitled to make true statements. Gautreaux v. State, 52 Wis. 2d 489, 494, 190 N.W.2d 542 (1971). Had Walitalo refused to submit to a blood test, he would have been subject to the penalties under Wis. Stat. § 343.305(10). Because there was no actual coercion or improper police conduct, we conclude that Walitalo’s consent was voluntary.

LaFave (in the cite mentioned above) makes the point that a threat to obtain a warrant where one could not in fact be obtained (for example, where there’s no probable cause, e.g.State v. Trecroci , 2001 WI App 126) is indeed coercive.

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