April 25, 2017 – A man charged with drunk driving argued that his attorney was deficient for failing to object when the prosecutor told the jury that the defendant refused a breathalyzer test. The state supreme court recently rejected the argument.
In State v. Lemberger, 2017 WI 39 (April 20, 2017), the court unanimously affirmed the conviction against Gary Lemberger for fourth offense operating while intoxicated (OWI), with two concurring opinions, despite Lemberger’s ineffective assistance of counsel claim.
“The law was settled at the time of Lemberger’s trial that, upon his lawful arrest for drunk driving, Lemberger had no constitutional or statutory right to refuse to take the breathalyzer test and that the State could comment at trial on Lemberger’s improper refusal to take the test,” wrote Justice Annette Ziegler in a majority opinion.
Thus, the majority ruled that Lemberger’s defense counsel “did not render ineffective assistance of counsel in failing to argue contrary to controlling precedent.”
Justice Shirley Abrahamson wrote a concurring opinion, joined by Justices Ann Walsh Bradley and Daniel Kelly. They upheld the conviction but would not say, as the majority did, that defendants have no constitutional or statutory right to refuse a breath test.
“A more correct statement of the law, in my opinion, is that a driver who refuses to take a breath test that is lawfully administered to the driver for a drunk driving offense may suffer consequences for refusal,” Justice Abrahamson wrote.
Lemberger Refuses the Breath Test
Lemberger refused a breathalyzer test after Madison police stopped his vehicle and arrested him on suspected drunk driving, his fourth offense. Under Wisconsin’s implied consent law, drivers impliedly consent to breath tests when driving in Wisconsin.
A refusal hearing followed. The judge ruled that police had probable cause to arrest Lemberger for drunk driving and to request that he submit to a breath test. In refusing, Lemberger subjected himself to the consequences under the implied consent law.
The fact of his refusal was one of the consequences for refusing the breath test. Thus, the trial court allowed the prosecutor to tell the jury that Lemberger refused the test as evidence of his “guilty conscience.” Lemberger’s defense counsel did not object.
After the jury found Lemberger guilty, he filed a motion for postconviction relief, arguing that he had a constitutional right to refuse the breath test and his defense counsel at trial was constitutionally deficient for failing to object to the prosecutor’s comments.
The circuit court denied Lemberger’s motion, concluding Wisconsin law did not support the claim that Wisconsin drivers have a constitutional right to refuse a breath test. An appeals court affirmed since Lemberger failed to preserve certain arguments.
Majority Opinion
The majority concluded that Lemberger did not receive ineffective assistance of counsel despite his argument that his defense counsel should have objected when the prosecutor repeatedly told the jury that Lemberger refused the breath test.
Objecting would have had no basis in law, the majority ruled, because “Lemberger had no constitutional or statutory right to refuse to take the breathalyzer test.” Thus, the prosecutor was free to use evidence of his refusal against him in the OWI trial.
The majority noted that Wisconsin jury instructions allow the jury to consider the fact that a defendant refused a breath test in evaluating his guilt or innocence.
Lemberger argued that recent Wisconsin appeals court decisions undermine the conclusion that defendants don’t have a right to refuse a breath test.
The majority noted that appeals court decisions cannot overrule supreme court decisions, and the law was well settled when the state tried the case. Even if the law was unsettled, as Lemberger argued, his ineffective assistance argument fell short.
“At the absolute best, then, Lemberger was faced with an unsettled legal question at trial. ‘We think ineffective assistance of counsel cases should be limited to situations where the law or duty is clear such that reasonable counsel should know enough to raise the issue,’” wrote Justice Ziegler, citing a 1994 decision.
In this case, the majority ruled that defense counsel would only be ineffective for failing to object if Lemberger clearly had a constitutional right to refuse the breath test.
“Lemberger’s attorney did not render ineffective assistance of counsel in failing to argue contrary to controlling precedent,” Ziegler wrote.
Concurring Opinion
Justice Abrahamson’s concurrence, joined by Justices A.W. Bradley and Kelly, agreed that Lemberger’s constitutional rights were not violated by the prosecutor’s comments.
But the three concurring justices also agreed that the majority opinion “states the law too broadly and veers toward being misleading” in concluding repeatedly that Lemberger had no constitutional or statutory right to refuse the breath test.
Abrahamson noted that the state’s implied consent law requires an officer, through an “Informing the Accused Form,” to advise a driver that he or she “may refuse to give a breath sample” but refusing to do so could result in adverse consequences.
“A more correct statement of the law, in my opinion, is that a driver who refuses to take a breath test that is lawfully administered to the driver for a drunk driving offense may suffer consequences for refusal,” Justice Abrahamson wrote.
Justice Kelly, in a separate concurrence, simply explained the he “joined the mandate of the court and the majority opinion to the extent it is not inconsistent with Justice Abrahamson’s concurrence,” and he “also join[ed] Justice Abrahamson’s concurrence.”
