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Reading Miranda warnings before the “Informing the Accused” caution didn’t mislead defendant about implied consent law

Eau Claire County v. Michael A. Grogan, 2014AP172, District 3, July 1, 2014 (1-judge; ineligible for publication); case activity

A reasonable person would have understood that he was given Miranda warnings because of his obstructionist behavior, so those warnings didn’t mislead Grogan into believing that the warnings applied in the implied consent context.

Grogan was stopped for suspicion of OWI and arrested after disobeying various police commands. (¶2-4). He was given Miranda warnings and invoked his right to counsel. An hour later he was given the “Informing the Accused” caution and asked if he’d submit to a chemical test. He didn’t respond, which the police treated as a refusal. (¶¶4-5). He challenged the refusal under State v. Reitter, 227 Wis. 2d 213, 240-42, 595 N.W.2d 646 (1999), arguing the earlier Miranda warnings led him to remain silent.

Under Reitter as elaborated by State v. Kliss, 2007 WI App 13, ¶17, 298 Wis. 2d 275, 728 N.W.2d 9, reading Miranda warnings doesn’t by itself mean the defendant was misled to believe he could invoke the right to silence regarding the implied consent law. Instead, a court must make “an objective assessment as to whether [the defendant’s] statements or conduct could be perceived as reliance on his [or her] right to remain silent or to obtain legal counsel with regard to the evidentiary chemical test.” Id., ¶16. That test isn’t met here:

¶18      Based upon the objective analysis required under Kliss, we conclude a reasonable person would have understood Strasburg’s reading of the Miranda warnings was in response to Grogan’s obstructionist behavior. This occurred before [Officer] Strasburg observed the further indicia that gave him probable cause to arrest Grogan for OWI and approximately one hour before Strasburg fulfilled his duties under the implied consent law. The timing of these events coupled with the different factual circumstances providing bases for arrest do not support Grogan’s contention that Strasburg misled him to believe the Miranda warnings applied in the implied consent context. …

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