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Officer need not tell motorist no right to a lawyer before marking implied-consent refusal

State v. William J. Furlong, 2016AP445-FT, 5/26/2016, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

William Furlong, arrested for OWI, initially consented to a blood draw but then decided that he wanted to talk to a lawyer first. (¶4). The officer noted a refusal, which Furlong appeals, arguing that the officer should have informed him that there was no right to counsel in connection with the blood draw.

The court acknowledges a sentence supporting Furlong’s position in State v. Baratka, 2002 WI App 288, ¶15, 258 Wis. 2d 342, 654 N.W.2d 875: “Repeated requests for an attorney can amount to a refusal so long as the officer informs the driver that there is no right to an attorney at that point.” However, the court finds Baratka inconsistent with the earlier supreme court case of State v. Reitter, 227 Wis. 2d 213, 595 N.W.2d 646 (1999), and so follows Reitter. See Cuene v. Hilliard, 2008 WI App 85, ¶15, 312 Wis. 2d 506, 754 N.W.2d 509.

And, the court concludes, Reitter is right on point:

Delving into details of Reitter, the pertinent facts match the facts here. After an officer read to Reitter from the Informing the Accused form, Reitter repeatedly said that he wanted to call his attorney. The officer did not directly respond to Reitter’s requests for a lawyer, but instead simply explained that, if Reitter refused to take the test, his driving privileges would be revoked. After the consequences of refusal were again explained to Reitter, he said, “I’m not refusing, I just want to talk to my attorney.” The officers informed Reitter that his “repeated requests would be noted as a refusal” and transported Reitter to jail. There is no indication in the facts of Reitter that the officers told Reitter at any time that he did not have a right to an attorney at the pre-test stage.

On these facts, our supreme court explicitly rejected Reitter’s argument that the implied consent statute imposes “an affirmative duty upon police officers to advise defendants that the right to counsel does not apply to the administration of a chemical test,” and rejected his argument that his “repeated requests for an attorney did not constitute an unlawful refusal.” Instead, the court observed that the arresting officers “correctly concluded that Reitter had no plans to take the test until he had an opportunity to speak with his attorney” and on this basis the court concluded that his “conduct constituted a constructive refusal to submit to the breathalyzer test.”

(¶¶10-11(citations omitted)).

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