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No IAC for not objecting to state’s use of defendant’s breath-test refusal

State v. Lemberger, 2017 WI 39, April 20, 2017, affirming a one-judge court of appeals decision; 2017AP1452; case activity (including briefs)

The supreme court declares Lemberger’s legal claim “unsettled,” and thus holds his trial counsel did not perform deficiently by not raising it. The court’s opinion, however, fails to present the actual substance of the claim.

This case initially presented an interesting issue. State v. Banks, 2010 WI App 107, 328 Wis. 2d 766, 790 N.W.2d 526, held it unlawful for the state to argue to the jury that the defendant’s refusal to submit to a voluntary DNA test showed consciousness of guilt. The court reasoned that such argument “penalized” the defendant for asserting his Fourth Amendment right to be free of an unwarranted search. So, if a defendant refuses to consent to a breath test for alcohol (as Lemberger did), and at trial the state introduces evidence of that refusal to show consciousness of guilt, hasn’t the state penalized his assertion of his Fourth Amendment right in an essentially identical way?

While this case was pending in SCOW, however, SCOTUS decided Birchfield v. North Dakota, 136 S. Ct. 2160, holding that a breath test is inherently reasonable after OWI arrest–thus, a defendant has no constitutional right to refuse such a test, and there is no constitutional problem with “penalizing” that refusal. So, Lemberger’s central claim no longer exists, which would seem to provide a pretty clean way to decide his counsel was not ineffective for not raising it.

But that’s not the route the court takes. Instead, it cites three Wisconsin cases from the 1980s for the proposition that “in Wisconsin there is no constitutional or statutory right to refuse a breathalyzer test.” (¶¶20-29). The problem with this approach, as noted in our prior post, is that those cases all predate Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 617 (1989), in which SCOTUS declared breath tests to be a Fourth Amendment search. In the end, it doesn’t matter to this case–those searches are now per se reasonable under Birchfield–but from the court’s opinion (which does not mention Skinner) you wouldn’t what Lemberger’s claim was even about.

Two concurrences take issue with the majority’s claim that Lemberger “had no constitutional or statutory right to refuse to take the breathalyzer test.” It would be more accurate to say that an OWI arrestee has a statutory right (as well as a practical ability) to refuse a breath test, though adverse consequences may follow. (¶¶37-50).

An unresolved question: what about blood tests? Birchfield held that unlike breath tests, blood tests do require a warrant (absent exigent circumstances). So could a defendant’s refusal to take a blood test be used against him or her in a criminal trial? The Birchfield opinion suggests not, as it refers to a prior case approving “evidentiary consequences on motorists who refuse to comply” with alcohol tests, and emphasizes that it is not casting doubt on such rules. On the other hand, that prior case, South Dakota v. Neville, 459 U.S. 553 (1983), concerned a Fifth Amendment challenge; it was decided well before McNeely did away with per se exigency regimes and thus reinvigorated Fourth Amendment challenges to blood draws.

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