Ineffective Assistance of Counsel

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WI Supreme Court

Case Name: State of Wisconsin v. Gary F. Lemberger

Case No.: 2017 WI 39

Focus: Ineffective Assistance of Counsel

In 2014 Lemberger was convicted of the crime of operating a motor vehicle while intoxicated——4th offense following a jury trial during which the prosecutor repeatedly referenced the fact that Lemberger had refused to submit to a breathalyzer test following his arrest for drunk driving. Postconviction, Lemberger requested a new trial, arguing that his constitutional right to the effective assistance of counsel had been violated. Lemberger claimed his trial attorney should have objected to the prosecutor’s comments because Lemberger possessed a constitutional right to refuse to take a warrantless breathalyzer test such that the prosecutor was not permitted to seek an inference of guilt from the refusal. The circuit court rejected this argument and the court of appeals affirmed. We conclude that Lemberger did not receive ineffective assistance of counsel. 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. Lemberger’s attorney did not render ineffective assistance of counsel in failing to argue contrary to controlling precedent. Consequently, the circuit court did not erroneously exercise its discretion in denying Lemberger’s postconviction motion without a hearing. We affirm the decision of the court of appeals.

Concur: Abrahamson, Bradley, Kelly

Dissent:

Affirmed

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.