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Cop didn’t mislead defendant about right to counsel before submitting to chemical test for alcohol

State v. Richard Rey Myers, 2017AP2499, District 4, 8/9/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Myers argues, unsuccessfully, that his refusal to submit to a blood test for OWI can’t be found to be improper because it was based on misinformation from the officer about his right to counsel.

Wanting to consult with counsel before deciding whether to submit to a chemical test for alcohol is not a valid reason to refuse the test. State v. Neitzel, 95 Wis. 2d 191, 204-05, 289 N.W.2d 828 (1980). But this rule doesn’t apply if the officer misleads a driver into believing he or she has the right to consult counsel before agreeing to the test. To take advantage of this exception the driver must show that: 1) the officer either failed to meet or exceeded his or her duty to inform the accused driver; 2) the lack or oversupply of information misled the accused driver; and 3) the officer’s failure to inform the driver affected the driver’s ability to make a choice about submitting to the chemical test. State v. Reitter, 227 Wis. 2d 213, 233, 595 N.W.2d 646 (1999). The court of appeals holds that, given the circuit court’s factual findings, Myers fails to prove the second and third prongs of the Reitter test. (¶¶9, 15-19).

Myers testified he thought he had a right to consult with counsel before the chemical test based on his back-and-forth with the officer about the right to counsel when he was asked to do field sobriety tests (which Myers also refused). Myers also testified he would have submitted to the chemical test if he’d known he didn’t have the right to consult with a lawyer first. (¶¶10-12). While the circuit court didn’t make express credibility findings, the factual findings it made effectively mean it found Myers’s testimony not credible. “The pertinent findings included that: Myers, throughout the investigation, stated that he wanted a lawyer[; w]hen it came to the time that the officer requested a chemical test of Myers’[s] blood, the officer provided no information other than reading the Informing the Accused form[; and] Myers did not, at the time of that request, indicate any misunderstanding about the chemical testing stage of the investigation.” (¶13 (formatting and punctuation modified)).

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