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Refusal, § 343.305(9) and Implied Consent Law – Interaction with Miranda Warnings

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

Issue/Holding: Administering Miranda rights prior to the “Informing the Accused” caution applicable to OWI does not invalidate the latter (at least where the motorist is concurrently under arrest for a separate crime):

¶14      There is no dispute that Thomas read Kliss the Miranda warning prior to reading the Informing the Accused. Thus the argument can be made that Thomas explicitly assured Kliss he had the right to remain silent and to obtain counsel prior to responding to the request for an evidentiary chemical test. This proposition would be more persuasive had there not been a drug charge accompanying the OWI charge. The discovery of marijuana provides the explanation for the Miranda reading here. If OWI had been the only concern, Kliss would have a stronger argument that the Miranda warning pertained to Thomas’s request for the chemical test.…

¶17      The reading of Miranda does not, in and of itself, lead us to conclude that the officer explicitly assured or implicitly suggested that a defendant has a right to consult counsel or to stand silent in the face of the implied consent warnings. Furthermore, we will not presume reliance on the Miranda warnings. Rather, we apply the two-part Reitter test to the facts on a case-by-case basis. The court must determine whether, under the facts of the case, the Miranda warning mislead the defendant to believe the right to remain silent and to have an attorney apply in the implied consent context. If so, the court must then determine whether the defendant invoked the Miranda rights when faced with the decision whether to submit to an evidentiary chemical test. Only where both factors are present will a refusal be deemed lawful.


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