Refuse breath test? It can be used against you, agrees Wisconsin Supreme Court.
Prosecutors can tell juries about a suspected drunken driver’s refusal to take a breath test, the Wisconsin Supreme Court ruled Thursday in a rare case of agreement.
Gary Lemberger had argued that he had a constitutional right to refuse the test, and therefore a prosecutor couldn’t try to get the jury to infer guilt from that decision. He claimed his attorney should have objected and that Lemberger should get a new trial.
The judge, the Court of Appeals and the high court all disagreed. “Lemberger’s attorney did not render ineffective assistance of counsel in failing to argue contrary to controlling precedent,” Justice Annette Ziegler wrote for the majority.