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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                   This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
January 19, 2005
A party may file with the Supreme Court a
                                                                  Cornelia G. Clark                                  petition to review an adverse decision by the
                                                                  Clerk of Court of Appeals                          Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                     and RULE 809.62.
                                                                                                                     Cir. Ct. No.   04TR003917
Appeal No.                                                        04-2005
STATE OF WISCONSIN                                                                                                   IN COURT OF APPEALS
                                                                                                                     DISTRICT II
IN THE MATTER OF THE REFUSAL OF MICHAEL A.
CURRY:
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
MICHAEL A. CURRY,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Winnebago County:
SCOTT C. WOLDT, Judge.  Affirmed.




No.   04-2005
¶1                                                                                                BROWN, J.1       Michael A. Curry appeals an order finding that he
improperly refused to take a blood alcohol test pursuant to our implied consent
law, WIS. STAT. § 343.305.   His claim is that he was subjectively confused about
whether he had a right to consult with an attorney before submitting to the test.
He submits that because he exhibited this confusion to the officer, the officer had
an affirmative duty to advise him that the right to counsel does not attach to the
implied consent statute pursuant to State v. Reitter, 227 Wis. 2d 213, 231, 595
N.W.2d 646 (1999).   We reject his argument for two reasons:   First, he did not
exhibit confusion to the officer.   Second, even if he had, Reitter cannot be read to
impose any duty upon the officer.   We affirm.
¶2                                                                                                We start with Reitter.   This district of the court of appeals certified
Reitter because of our concern that while many of our citizens are aware of the
right to consult an attorney once arrested, the law does not allow a citizen arrested
for driving while intoxicated to insist on consulting an attorney before deciding
whether to submit to a blood alcohol test.   We thought the supreme court should
speak to the issue of whether the officer should inform an arrested driver that there
is no right to counsel in the context of the implied consent law.
¶3                                                                                                The supreme court granted certification and did speak to the issue.
The court held:
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
1  This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2003-04).
All subsequent references to the Wisconsin Statutes are to the 2003-04 version unless otherwise
noted.
2




No.   04-2005
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.
Id. at 217-18.
¶4                                                                                                       Curry seizes on the  “where a defendant expresses no confusion”
language to launch his attack.   He argues that he was confused about whether he
had a right to consult with an attorney and that, under this scenario, Reitter must
be read to impose a duty on the officer to inform Curry that he had no right to
counsel before taking the test.
¶5                                                                                                       There are two problems with Curry’s argument.   First, the record
shows no confusion on Curry’s part.   Curry was arrested for operating a vehicle
while intoxicated and was transported to the sheriff’s office.   In the sally port, the
officer explained how the process works for taking a breathalyzer test.    Curry
responded that he had already submitted to a Preliminary Breath Test and that was
the  only test  he  was  going  to  do  without  a  lawyer.    Subsequently,  after  the
arresting officer read him the Informing the Accused form and asked Curry to
submit to the test, he refused.   Curry informed the officer that he was not going to
perform the test without a lawyer or without speaking to a lawyer.2
¶6                                                                                                       Nothing in the facts at bar show Curry alerting the officer that he
thought he had a constitutional right to an attorney before taking the test.   Nor is
there anything in the facts that shows how he expressed confusion about the lack
2  Curry claims that the factual findings include his testimony that when told by the
officer that he would be marked as a refusal, he replied to the officer, “I don’t refuse to take it at
all.”   But the trial court did not mention this statement in its factual determination, and we will
not consider it.  Even if we did, the statement would have no relevance to our holding.
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No.   04-2005
of information concerning his right to counsel in the Informing the Accused form.
In truth, the facts elicited here are not even as close as the facts in the Reitter case.
There, after reading the Informing the Accused form, Reitter repeatedly stated that
he wished to call an attorney.   Id. at 220.   The deputy in that case did not respond
directly to Reitter’s requests, but informed Reitter about the nature of the implied
consent law and the consequences of refusal.   Id.   The supreme court concluded
that                                                                                        “[t]he  record  does  not  suggest  Reitter  was  confused  by Deputy Sipher’s
reading of the ‘Informing the Accused’ Form.”   Id. at 221.   The supreme court
arrived at this conclusion even in the face of evidence that Reitter had vocalized
how “his rights were [being] violated.”   Id.
¶7                                                                                          Here, by contrast, Curry never vocalized how he thought he had a
“right” to an attorney.   Moreover, Curry never even questioned the officer about
his right to counsel after the Informing the Accused form was read to him.   We
hold that Curry has failed to distinguish his situation from Reitter’s.
¶8                                                                                          Second, even if Curry had expressed to the officer some confusion
about whether he had a right to counsel, Reitter does not establish that the officer
then has a corresponding duty to tell the arrested driver that there is no right to
counsel prior to taking the blood alcohol test.   The Reitter court point blank said
that “our courts do not recognize ‘subjective confusion’ as a defense.”   Id. at 229.
It cited County of Ozaukee v. Quelle, 198 Wis. 2d 269, 280, 542 N.W.2d 196 (Ct.
App. 1995), as authority for that proposition.   Reitter, 227 Wis. 2d at 229.   The
court  explained  that  the  officer’s  only  duty  under  these  circumstances  is  to
administer the information contained in the Informing the Accused form.   Id. at
230.   This was done here.
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No.   04-2005
¶9                                                                                         True, the supreme court left the door open for the possibility of a
situation where the evidence showed the arrested driver to be confused about the
right to counsel vis-à-vis the Informing the Accused form.   But the court tellingly
hypothesized the circumstances under which this situation would occur.    If an
arrested driver were to have claimed to the officer that his or her insistence for a
lawyer “fell under the shadow of Miranda warning, [Reitter]   might have made an
argument  for  obligating  the  [officer]  to  clarify any resulting  right  to  counsel
confusion.   Instead, Reitter offers little that would tempt us toward embarking
down the tangled O’Connell path.”3   Reitter, 227 Wis. 2d at 230.   Like Reitter
before him, Curry offers nothing that would likewise tempt this court toward
taking the road he wants us to pursue.
By the Court.—Order affirmed.
                                                                                           This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                                  (b)4.
3  Case references in the quoted portion are to Miranda v. Arizona, 384 U.S. 436 (1966),
and Commonwealth v. O’Connell, 555 A.2d 873 (Pa. 1989).
5

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