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OWI – implied consent law, application where driver not under arrest

State v. Jack E. Thurk, 224 Wis.2d 662, 592 N.W.2d 1 (Ct. App. 1999)
For Thurk: Christopher A. Mutschler

Holding: Following a vehicular homicide the culpable driver voluntarily accompanied an officer to the station and submitted to a chemical blood test. He seeks suppression, on the ground that he was denied a request for a breathalyzer as an alternate test. The COA rejects the argument, holding that he had no right to the alternate test because he wasn’t under arrest. (The facts aren’t recited in much detail, but the officer told Thurk he was not under arrest. For a case discussing in ambiguous circumstances at least some of the factors going to whether a suspect was “in custody” for Miranda purposes (and, therefore, arguably arrested), see State v. Gruen, 218 Wis. 2d 581, 594-96, 582 N.W.2d 728 (Ct. App. 1998).)

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