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Implied Consent Case Analysis

The decision in this case is going to be very difficult to apply should facts similar to those in Goss occur, i.e., the officer permits a drunken driving suspect to call an attorney from the police station.

As noted, when discussing the application of Goss to Verkler’s case, the court stated, "the facts in Goss are not only inapposite to the facts in the case at bar, but Goss actually supports our position."

This statement implies that the court of appeals deems Goss to have been correctly decided and consistent with Wisconsin law, but that Verkler’s case is distinguishable from it.

Furthermore, on three separate occasions in the paragraph distinguishing Goss, the court used the expression, "real-time," to mark a difference between the consultation in Goss at the police station, and the consultation in the squad car at some point before reading the Informing the Accused form.

A reasonable interpretation of this portion of the court’s analysis is that, if a Wisconsin drunken driver were permitted to consult his attorney at the station, a subsequent refusal would not be a refusal under the implied consent law.

However reasonable that interpretation would be, given the court’s language, it is nevertheless incorrect. Were the court of appeals ever to be squarely presented with facts identical to those in Goss, the Wisconsin Supreme Court’s decision in Reitter would compel it to determine that Goss is not consistent with Wisconsin law, and decline to adopt the reasoning in Goss.

Describing the decision in Goss, the court stated, "The clear import of Goss is that if the officer expressly assures a right to consult about whether to take a breath test, then the officer must honor that allowance."

That is not what Goss holds, however. The officer in Goss came no closer to expressly assuring Goss he had a right to counsel than did the officer in Verkler’s case; on the contrary, he repeatedly denied it. After he finally relented, he terminated the consultation after only one minute.

Arguably, this could be construed as implying a right to counsel, but it falls miles short of the express assurance that the court of appeals called it in Verkler’s case.


Wisconsin Court of Appeals

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A Wisconsin court faced with facts identical to those in Goss could easily hold that the driver refused consent, and could do so in language tracking those the court of appeals used earlier to describe Verkler’s brief consultation verbatim:

"while the officer did allow a private chat …, he abruptly ended the chat moments later. … A reasonable person would come to the same conclusion that the trial court did. The officer allowed a short private conversation to take place between [Goss] and his [attorney] as a matter of courtesy and exercised control by ending it at his command. The officer’s action in ending the conversation is at odds with [Goss’s] view that the officer was honoring an attorney-client relationship."

By misconstruing Goss, and calling Goss "inapposite," rather than inconsistent with Wisconsin law, the court of appeals has rendered its decision difficult to apply should an officer ever permit a suspect to call his attorney from the police station.

The first half of the decision suggests that merely allowing a brief consultation is insufficient to imply that the suspect has a right to counsel; such an action is a courtesy, not an extension of a right.

The second half of the decision, however, by repeatedly using the term, "real-time," to describe Goss’s attorney consultation at the station, suggests otherwise.

– David Ziemer

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David Ziemer can be reached by email.

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