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OWI – Implied Consent Law – Right to Counsel

State v. Dennis J. Reitter, 227 Wis.2d 213, 595 N.W.2d 646 (1999), on certification
For Reitter: Michael C. Witt, Monogue & Witt, S.C.

¶3 … where a defendant expresses no confusion about his or her understanding of the statute, a defendant constructively refuses to take a breathalyzer test when he or she repeatedly requests to speak with an attorney in lieu of submitting to the test. We also hold that because the implied consent law creates statutory privileges, not constitutional rights, no due process violation occurs when an officer does not inform a defendant that the right to counsel does not attach to the stages preceding administration of a chemical test. The State should not be bound by a defendant’s mistaken assumptions about his or her constitutional rights. In this case, the arresting deputy advised the defendant five times about the consequences of failing to take the breathalyzer test, and the deputy warned the defendant that continued insistence to speak with an attorney would be deemed a refusal. Accordingly, we affirm the circuit court.

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