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Driver can’t refuse chemical test based on right to counsel

Washington County v. James Michael Conigliaro, 2020AP888, District 2, 12/9/20 (1-judge opinion, ineligible for publication); case activity (including briefs)

Conigliaro appealed an order finding that he refused to submit to an evidentiary chemical test. He argued that the arresting officer, Joseph Lagash, led him to believe that he had the right to consult with an attorney before deciding whether to submit to the test and/or that Lagash failed to dispel his belief that he had the right to counsel. The court of appeals rejects both arguments.

Wisconsin’s implied consent law makes no provision for a right to counsel. State v. Neitzel, 95 Wis. 2d 191, 205, 289 N.W.2d 828 (1980). Furthermore, an officer has no duty to inform the accused that he has no right to counsel. State v. Reitter, 227 Wis. 2d 213, 242-43, 595 N.W.2d 646 (1999). The officer must simply convey the information on the “Informing the Accused” form. Id. However, if an officer explicitly assures or implicitly suggests that a custodial defendant has the right to counsel, the officer can’t pull the rug out after the defendant relies on that assurance or suggestion. State v. Verkler, 2003 WI App 37, ¶8, 260 Wis. 2d 391, 659 N.W.2d 137 (citing Reitter, 227 Wis. 2d at 240-42). These decisions doomed Conigliaro’s appeal.

The court of appeal held that the Lagash read the “Informing the Accused” card exactly as written and conveyed no additional information or misinformation about the right to counsel or anything else. Opinion, ¶14.

. . . Conigliaro testified that he believed he had the right to an attorney, and he maintained that insistence on Lagash’s repeated requests that he submit to the test. Conigliaro’s insistence on consulting with counsel before submitting to a test was unlawful. See Neitzel, 95 Wis. 2d at 205; Reitter, 227 Wis. 2d at 235. Lagash never told Conigliaro, impliedly or otherwise, that he had a right to counsel before deciding whether to submit. Lagash truthfully told Conigliaro that he would have the right to speak to a lawyer after. Conigliaro’s subjective belief about his right to counsel is not recognized under the implied consent law, and as Conigliaro insisted upon counsel, Lagash properly and lawfully marked him as a refusal. Opinion, ¶15 .

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