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Court of appeals ducks Fourth Amendment question

State v. Gary F. Lemberger, 2015AP1452-CR, 4/14/2016, District 4 (one-judge decision; ineligible for publication), petition for review granted 10/11/2016, affirmed, 2017 WI 39; case activity (including briefs)

A breathalyzer test is a Fourth Amendment search, and state case law holds that the state may not invite a jury to view a defendant’s refusal to consent to a search as evidence of guilt. So, can a prosecutor argue that a defendant’s refusal to take a breathalyzer shows his guilt? Don’t look to this case for an answer.

State v. Banks, 2010 WI App 107, 328 Wis. 2d 766, 790 N.W.2d 526, held that the Fourth Amendment bars the state from arguing to a jury that refusing to consent to a search showed defendant’s consciousness of guilt. Specifically, it found defendant’s trial counsel ineffective for failing to object when the state argued that his refusal of a DNA test showed a guilty mind. Id., ¶¶19-28. In doing so, the court rejected the state’s argument that counsel could not be deficient for failing to argue an unsettled point of law. Though Wisconsin courts had not decided the precise issue, the court of appeals held that the substantial body of foreign cases supporting Banks’s position were enough to carry the day. Id., ¶¶21-24.

So, if the State can’t comment on refusal to submit to a DNA test, shouldn’t the same result obtain where the defendant refuses a breath test for alcohol? After all, it’s well established that such a test is a “search” triggering Fourth Amendment protection.  Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 617 (1989). It’s also clear that the state’s “implied consent” law does not deprive a person of the constitutional right to refuse actual consent when police request a test. State v. Padley, 2014 WI App 65, ¶¶37-40, 354 Wis. 2d 545, 849 N.W.2d 867.

To be sure, some older Wisconsin cases permit this evidentiary use of a refusal. But these cases–State v. Albright, 98 Wis. 2d 663, 298 N.W.2d 196 (1980) (Ct. App. 1980), State v. Bolstad, 124 Wis. 2d 576, 370 N.W.2d 257 (1985), and State v. Crandall, 133 Wis. 2d 251, 394 N.W.2d 905 (1986)–all predate the Supreme Court’s holding that the Fourth Amendment applies to breath tests, and so are overruled to the extent they are inconsistent with that rule (which they are: Albright and Crandall each explicitly declares that there is no constitutional right to refuse a breathalyzer, clearly no longer the law). In fact, none of these cases even concern a Fourth Amendment challenge, making them of questionable relevance here.

The above is the gist of the argument Lemberger advanced in his appellant’s brief, arguing trial counsel was ineffective for not objecting when the state argued that his refusal to submit to a breathalyzer showed he was driving drunk. The court of appeals does not address it, however, saying that Lemberger failed to present it to the circuit court in his postconviction motion, and has therefore forfeited it on appeal. (¶6). Specifically, the court of appeals faults Lemberger for failing to explain in that motion why Albright and Bolstad do not control the case. (It even goes so far as to quote the circuit court’s implication that counsel was unethical for not citing them. (¶3).)

But wait a minute. As explained above, Albright, Bolstad and Crandall are either tangential to the issue or no longer good law–which Lemberger also explained in his brief. The circuit court first cited these cases in its written denial of the postconviction motion (which it issued without giving Lemberger the benefit of a hearing where he could have explained that the cases do not govern). Such denial, of course, is appealable as of right. So should Lemberger really be prevented from explaining to the court of appeals why these cases are not on point? The court of appeals’s answer: Lemberger should have, and did not, file a motion for reconsideration in the circuit court. (¶9). Which, as far as On Point can tell, has never been necessary to obtain review of an erroneous circuit court decision, at least in a criminal case.

The court also (reasonably) faults Lemberger for failing to file a reply, (¶11), though it’s worth noting that the state’s response does not even cite Banks (which Lemberger relied on extensively in his opening brief), much less explain why it does not compel reversal. The court, in refusing to address Lemberger’s argument, also declines to distinguish (or acknowledge) Banks.

All in all, a troubling application of the forfeiture doctrine. Which is a shame, as there was a substantial issue to be wrestled with here. On the bright side, the merits not having been addressed, the issue remains ripe for the next case–if a court will listen.

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