State v. Reitter, 98-0915
| Decision Date | 29 June 1999 |
| Docket Number | No. 98-0915,98-0915 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Dennis J. REITTER, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant there were briefs by Michael C. Witt and Monogue & For the plaintiff-respondent the cause was argued by Susan M. Crawford, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
Witt, S.C., Jefferson and oral argument by Michael C. Witt.
This case is before the court on certification by the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (1995-96). 1 The issue is whether a police officer is required to advise a custodial defendant, charged with operating a motor vehicle while intoxicated, that the right to counsel does not apply to the administration of a chemical test under Wisconsin's implied consent statute, Wis. Stat. § 343.305. A related question, whether the due process clause of the Wisconsin Constitution imposes an affirmative duty upon police officers to advise defendants that the right to counsel does not attach to the implied consent statute, was not certified to this court but was raised by the defendant in his brief to the court of appeals.
¶2 The Racine County Circuit Court, Richard J. Kreul, Judge, ruled that because the right to counsel does not apply to the implied consent setting, the defendant, Dennis J. Reitter, unlawfully refused to submit to a chemical test. Reitter appealed the judgment, maintaining that the arresting deputy was obligated to advise him that no right to counsel exists under the implied consent statute, and arguing that requests for counsel should not be construed as a refusal to submit to a chemical test. The court of appeals certified the appeal to this court, concluding that the question raised statutory and constitutional issues meriting our review. Because this issue is one of first impression and because it impacts a subject vital to the public interest, we granted review.
¶3 Inasmuch as the implied consent law is a statutory creation, it is the legislature, not this court, which should impose duties upon officers in the implied consent setting; and until the legislature modifies the implied consent statute, officers are under no affirmative duty to advise custodial defendants about rights for which the statute makes no provision. We observe that where a defendant expresses no confusion about his or her understanding of the statute, a defendant constructively refuses to take a breathalyzer test when he or she repeatedly requests to speak with an attorney in lieu of submitting to the test. We also hold that because the implied consent law creates statutory privileges, not constitutional rights, no due process violation occurs when an officer does not inform a defendant that the right to counsel does not attach to the stages preceding administration of a chemical test. The State should not be bound by a defendant's mistaken assumptions about his or her constitutional rights. In this case, the arresting deputy advised the defendant five times about the consequences of failing to take the breathalyzer test, and the deputy warned the defendant that continued insistence to speak with an attorney would be deemed a refusal. Accordingly, we affirm the circuit court.
¶4 For purposes of this review the facts are not in dispute. On Wednesday afternoon, December 18, 1996, Racine County Deputy Sheriff Melvin Sipher (Deputy Sipher) arrested Dennis J. Reitter (Reitter) for operating a motor vehicle while intoxicated (OWI). Deputy Sipher handcuffed Reitter, advised him that he was under arrest, and transported Reitter to the sheriff's department patrol station for administration of an intoxilyzer test. Reitter explained he was "going through a divorce" and asked Deputy Sipher "to give ¶5 After issuing a citation, Deputy Sipher administered the "Informing the Accused" Form. The "Informing the Accused" Form, issued by the Department of Transportation, reads:
him a break and take him home." Reitter expressed concern that he would not be able to meet his son when the boy got off the bus at 4:00 p.m. The record does not indicate whether Deputy Sipher read Miranda rights to Reitter
When a Law Enforcement Officer requests that you submit to a chemical test, pursuant to Wisconsin's Implied Consent Law, the officer is required to inform you of the following:
(applies to everyone)
1. You are deemed under Wisconsin's Implied Consent Law to have consented to chemical testing of your breath, blood or urine at this Law Enforcement Agency's expense. The purpose of testing is to determine the presence or quantity of alcohol or other drugs in your blood or breath.
2. If you refuse to submit to any such tests, your operating privilege will be revoked.
3. After submitting to chemical testing, you may request the alternative test that this law enforcement agency is prepared to administer at its expense or you may request a reasonable opportunity to have any qualified person of your choice administer a chemical test at your expense.
4. If you take one or more chemical tests and the result of any test indicates you have a prohibited alcohol concentration, your operating privileges will be administratively suspended in addition to other penalties which may be imposed.
5. If you have a prohibited alcohol concentration or you refuse to submit to chemical testing and you have two or more prior suspensions, revocations or convictions within a 10 year period and after January 1, 1988, which would be counted under s.343.307(1) Wis. Stats., a motor vehicle owned by you may be equipped with an ignition interlock device, immobilized, or seized and forfeited. 2
As Deputy Sipher read the form, he paused periodically to verify that Reitter was listening, and he initialed the individual paragraphs of the form as he completed reciting them.
¶6 Reitter reacted to the reading of the "Informing the Accused" Form by stating repeatedly that he wished to call his attorney. Deputy Sipher did not respond directly to Reitter's request but instead explained that under the implied consent law, Reitter had agreed to submit to the test, and that a refusal to take the test would result in the revocation of driving privileges. In five exchanges, Reitter repeatedly insisted upon the right to counsel, and Deputy Sipher repeatedly warned him about the nature of the implied consent law and the consequences of refusal. In his written report, Deputy Sipher observed:
I explained to Reitter 5 times that I needed a yes or no answer to my question, will you submit to a test of your breath and Reitter responded, "I want to call my attorney." I made it very clear to Reitter that his answer could result in a refusal and his driving priviledge (sic) would be revoked. Regardless of how I repeatedly explained this to Reitter, he would not answer my questions.
Deputy Sipher also testified:
I repeated again that he's deemed by the Wisconsin Implied Consent law to The record does not suggest Reitter was confused by Deputy Sipher's reading of the "Informing the Accused" Form.
submit to a test that we're prepared to offer. I repeated this five times and continued to get the same response that he wanted to talk to his attorney. I also made it clear to him if he did refuse to take the test that he could have his driving privilege revoked.
¶7 During these exchanges, Sheriff's Deputy Roscizewski began to prepare the intoxilyzer test. Like Deputy Sipher, Deputy Roscizewski also urged Reitter to submit to the test and warned him that a refusal would result in license revocation. In his written report, Deputy Roscizewski noted "Reitter stated 'I'm not refusing, I just want to talk to my attorney.' " Although the record does not indicate whether Reitter communicated a verbal refusal to submit to the test, he became very uncooperative. He would not answer Deputy Sipher's questions. He grew belligerent. Reitter questioned Sipher's right to stop him and asked to see the printed OWI law. He stated that his rights were violated.
¶8 Deputy Sipher determined "that regardless of what I asked him and what I said to him he was not going to take the test." After informing Reitter that the repeated requests would be noted as a refusal, Deputy Sipher completed a Notice of Intent to Revoke Operating Privileges and issued a Notice of Intent to Suspend Reitter's driver's license. Reitter was transported to the Racine County Jail, where he was given the opportunity to consult with an attorney.
¶9 Reitter filed a request for a refusal hearing on December 30, 1996. Evidentiary hearings followed in July and August, 1997. On March 23, 1998, the circuit court issued a written decision, finding that the right to counsel does not apply to the implied consent setting. The circuit court also ruled that Deputy Sipher complied with the requirements of the implied consent statute, and it concluded that Reitter's repeated insistence on calling his attorney constituted an unlawful refusal. Reitter appealed, and the court of appeals certified the issue to this court.
¶10 In its analysis for certification, the court of appeals echoed the circuit court by expressing concern about a perceived tension between Wis. Stat. § 946.75, the statute creating a general right to counsel, and case law holding that under the implied consent statute, no right to counsel exists. Noting that no Wisconsin case law addresses an officer's duty to advise a custodial defendant that the right to counsel does not apply to the implied consent setting, and finding other jurisdictions divided, the court of appeals asked this court to clarify the issue.
¶11 The issue in this case, whether the implied consent statute obligates police officers to advise custodial defendants that the right to counsel does not apply to the pre-test setting, raises two questions...
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