State v. Gary F. Lemberger, 893 N.W.2d 232

Background

On April 5, 2014, Gary Lemberger was arrested for OWI (4th offense) after officer observed signs of intoxication and administered field sobriety tests; Lemberger initially agreed to a chemical test but later refused a breathalyzer at the station after a 20-minute observation and being read the Informing the Accused form twice.
At a pretrial refusal hearing the circuit court found the refusal was improper, ruled the State could comment on the refusal, and so instructed the jury at trial; the prosecutor repeatedly urged the jury to infer guilt from the refusal.
A jury convicted Lemberger; he was sentenced and entered judgment of conviction in November 2014 (amended Feb 2015).
Lemberger moved for postconviction relief claiming ineffective assistance of counsel for failure to object to prosecutorial comments that the refusal implied guilt, arguing the refusal was a constitutional right against warrantless testing; the circuit court denied the motion without a Machner hearing and the court of appeals affirmed.
The Wisconsin Supreme Court granted review and affirmed: it held counsel was not ineffective because, at the time of trial, controlling precedent established that drivers lawfully arrested for drunk driving had no constitutional or statutory right to refuse a breath test and the State could use refusal evidence at trial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prosecutor may comment that defendant's refusal to submit to a warrantless breath test supports an inference of guilt	Lemberger: refusal was an exercise of a constitutional right; use of refusal to infer guilt violated self-incrimination and due process	State: implied-consent regime and controlling precedent permit admission/comment of refusal; no constitutional right to refuse without consequence	Held: State may comment; law at trial time allowed inference from refusal
Whether Lemberger received ineffective assistance of counsel for not objecting to such comments	Lemberger: counsel was deficient for failing to object to unconstitutional comments	State: counsel’s failure was not deficient because prevailing law clearly allowed comment on refusals; issue was not clearly required to be raised	Held: No ineffective assistance; failure to raise unsettled or contrary claim was not unreasonable
Whether controlling Wisconsin precedent had been effectively overruled by later cases or developments	Lemberger: subsequent court of appeals decisions and developments undermined prior Supreme Court precedent, entitling him to refuse	State: no controlling Supreme Court or statutory change overruled prior decisions; court of appeals cannot overrule Supreme Court	Held: Prior Supreme Court and Wisconsin precedent remained controlling at trial time; later appellate decisions did not compel overruling
Whether postconviction motion required a Machner hearing	Lemberger: factual/legal dispute warranted a hearing	State: record conclusively showed no entitlement to relief	Held: No Machner hearing required because record conclusively demonstrated counsel was not ineffective

Key Cases Cited

State v. Albright, 98 Wis. 2d 663, 298 N.W.2d 196 (Ct. App. 1980) (refusal evidence may show consciousness of guilt; no constitutional right to refuse breathalyzer under Wisconsin law)
South Dakota v. Neville, 459 U.S. 553 (U.S. 1983) (admission of refusal to submit to BAC test does not violate Fifth Amendment self-incrimination or federal due process)
State v. Bolstad, 124 Wis. 2d 576, 370 N.W.2d 257 (Wis. 1985) (refusal evidence is relevant and may be admissible to show consciousness of guilt)
State v. Crandall, 133 Wis. 2d 251, 394 N.W.2d 905 (Wis. 1986) (Wisconsin Constitution does not require additional warnings; implied consent statute does not create a constitutional right to refuse)
Missouri v. McNeely, 569 U.S. 141 (U.S. 2013) (exigent-circumstances analysis for warrantless blood draws; noted implied-consent laws permit penalties and evidentiary use of refusals)
Birchfield v. North Dakota, 136 S. Ct. 2160 (U.S. 2016) (Fourth Amendment permits warrantless breath tests incident to arrest for drunk driving; distinguishes breath tests from blood tests)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong ineffective-assistance standard: deficient performance and prejudice)