State v. Richard L. Verkler, 2003 WI App 37
For Verkler: Christopher A. Mutschler
¶1. In State v. Reitter, 227 Wis. 2d 213, 217-18, 595 N.W. 2d 646 (1999), our supreme court held that law officers are under no affirmative duty to advise custodial defendants that the right to counsel does not apply to the implied consent setting. However, the court also appears to have held that, as a matter of due process, if an officer either explicitly assures or implicitly suggests that a custodial defendant has a right to counsel, then the officer may not thereafter mark down a refusal if the defendant acts upon that assurance or suggestion. See id. at 240-42. The defendant in this case, Richard L. Verkler claims that the officer, by his actions, at least implicitly suggested that Verkler had the right to consult with an attorney before deciding whether to submit to a breath test. Verkler further contends that the officer then marked him down as having refused because he insisted on consulting with his attorney first. We do not agree that the officer implicitly suggested a right to counsel before taking the test. In fact, the facts show that just the opposite occurred. We affirm.