WI: State didn’t violate due process or fair trial by commenting on def’s refusal to submit to a breath test

It did not deny defendant a fair trial for the state to refer to defendant’s refusal to take a breath test. State v. Lemberger, 2017 WI 39, 2017 Wisc. LEXIS 227 (April 20, 2017):

[*P19] These considerations resolve Lemberger’s ineffective assistance claim in the State’s favor. Lemberger argues that the State violated his constitutional right against self-incrimination and his constitutional right to due process of law “by repeatedly asking the jury during his trial for drunk driving to infer guilt based on his refusal to submit to a warrantless breathalyzer test.” However, 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.

[*P20] In State v. Albright, decided over three decades ago, a defendant refused to take a breathalyzer test after he was pulled over for drunk driving and informed of the implied consent law. State v. Albright, 98 Wis. 2d 663, 667, 298 N.W.2d 196 (Ct. App. 1980). The court of appeals explained that

use of test refusal evidence for the purpose of showing consciousness of guilt is constitutionally permissible. The only rationale for a rule prohibiting comment on a refusal would be that there is a right to refuse the test. Wisconsin drivers have no constitutional right to refuse to take the breathalyzer.

Id. at 669 (footnote omitted).