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Implied Consent – Test for Adequacy of Warning, Generally

State v. Darren A. Kliss, 2007 WI App 13
For Kliss: Michael C. Witt


¶7        … Because the implied consent law makes no provision for the right to counsel, an officer is correct to record a refusal if the arrestee insists on speaking to an attorney before answering.…¶8        … County of Ozaukee v. Quelle, 198 Wis. 2d 269, 276, 542 N.W.2d 196 (Ct. App. 1995) … identified a three-part test to assess the adequacy of a warning provided under the implied consent law. Id. at 280. The test asks:  (1) whether the officer had met or exceeded his or her duty to provide the statutory information to the accused driver, (2) whether the lack or oversupply of information was misleading, and (3) whether the failure to properly inform the driver affected the driver’s ability to make a choice about the evidentiary chemical test. Id. In Quelle, we expressly rejected a subjective confusion defense ….

¶9        … In State v. Reitter, 227 Wis. 2d 213, 595 N.W.2d 646 (1999), the issue before the court was “whether the implied consent statute imposes an affirmative duty upon a police officer to inform a defendant that there is no right to counsel in the implied consent setting, and whether a defendant’s request to consult with an attorney constitutes a statutory refusal to submit to a chemical test.” Id. at 223. The Reitter court held that no affirmative duty to advise defendants existed. Id. at 242-43. …

¶10      … State v. Verkler, 2003 WI App 37, 260 Wis. 2d 391, 659 N.W.2d 137. … expressly relied on the Reitter holding to conclude that “[i]f the officer explicitly assures or implicitly suggests that a custodial defendant has a right to consult counsel, that officer may not thereafter pull the rug out from under the defendant if he or she thereafter reasonably relies on this assurance or suggestion.” Verkler, 260 Wis. 2d 391, ¶8.


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