State v. Gary F. Lemberger

2017 WI 39

SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1452-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Gary F. Lemberger,
Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 369 Wis. 2d 224, 880 N.W.2d 183
(Ct. App. 2016 – Unpublished)

OPINION FILED: April 20, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 17, 2017

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: William E. Hanrahan

JUSTICES:
CONCURRED: ABRAHAMSON, J. concurs, joined by BRADLEY, A.
W., J. and KELLY, J. (opinion filed).
KELLY, J. concurs (opinion filed).
DISSENTED:
NOT PARTICIPATING:

ATTORNEYS:
For the defendant-appellant-petitioner, there was a brief
by Robert J. Eddington and Eddington Law Office LLC., Milwaukee,
and oral argument by Robert J. Eddington.

For the plaintiff-respondent the cause was argued by
Michael C. Sanders, assistant attorney general, with whom on the
brief was Brad D. Schimel, attorney general.
 2017 WI 39
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP1452-CR
(L.C. No. 2014CT463)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent,
FILED
v. APR 20, 2017

Gary F. Lemberger, Diane M. Fremgen
Clerk of Supreme Court

Defendant-Appellant-Petitioner.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an

unpublished decision of the court of appeals, State v.

Lemberger, No. 2015AP1452-CR, unpublished slip op. (Wis. Ct.
App. Apr. 14, 2016), which affirmed the Dane County circuit

court's1 judgment of conviction of defendant Gary Lemberger

("Lemberger") and order denying Lemberger's motion for

postconviction relief.

1
The Honorable William E. Hanrahan presided.
 No. 2015AP1452-CR

¶2 In 2014 Lemberger was convicted of the crime of

operating a motor vehicle while intoxicated——4th offense2

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.

¶3 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

2
See Wis. Stat. §§ 346.63(1)(a); 346.65(2)(am)4.;
343.307(1) (2013-14). All subsequent references to the
Wisconsin Statutes are to the 2013-14 version unless otherwise
indicated.

2
 No. 2015AP1452-CR

postconviction motion without a hearing. We affirm the decision

of the court of appeals.

I. FACTUAL BACKGROUND

¶4 On April 5, 2014, at about 4:50 p.m., Officer Andrew

Naylor ("Officer Naylor") of the City of Madison Police

Department responded to multiple reports of an "erratic driver"

on a highway in Dane County, "somebody who was yelling and

swerving." Officer Naylor located the vehicle that had been

described to him and followed it for about two minutes, but did

not observe any unusual behavior other than the fact that "the

driver had his hand out the window" and the hand "seemed to be

moving in a waving manner." Officer Naylor activated his

emergency lights and both vehicles pulled to the side of the

road.

¶5 When Officer Naylor spoke with the vehicle's driver,

Lemberger, he "immediately noticed a strong odor of intoxicants

coming from [Lemberger's] breath," "saw that [Lemberger] had

bloodshot as well as glassy eyes," and observed that Lemberger
"was speaking with a slurred speech and speaking slowly."

Additionally, Lemberger was "belligerent to a certain extent"

when speaking about a driver on the road and exhibited a

"pattern of up and down, from agitated to compliant one minute

to the next minute," a pattern Officer Naylor "experience[d]

with intoxicated people in general." Lemberger performed field

sobriety tests in Officer Naylor's presence.

¶6 Officer Naylor then concluded on the evidence before
him that Lemberger was operating a vehicle while impaired. He
3
 No. 2015AP1452-CR

arrested Lemberger, placed him in the back of Officer Naylor's

vehicle, and read him the Informing the Accused form.3 "[W]hen

asked to submit to a chemical test," Lemberger responded

"[Y]ep." Officer Naylor took Lemberger to "the intoximeter

room" at the West District of the City of Madison Police

Department. In the intoximeter room, Officer Naylor

"conduct[ed] [a] 20-minute observation." He perceived that

Lemberger "still had a strong odor of intoxicants coming from

his breath" and that Lemberger's speech was slurred. Lemberger

stated, contrary to his earlier representation, that "he was not

going to submit to a breath test." After the 20-minute

observation was complete, Officer Naylor read the Informing the

Accused form to Lemberger a second time. Lemberger refused to

submit to a breathalyzer test.

II. PROCEDURAL BACKGROUND

¶7 On May 6, 2014, a criminal complaint was filed against

Lemberger in Dane County circuit court charging him with

operating a motor vehicle while intoxicated——4th offense,
contrary to Wis. Stat. §§ 346.63(1)(a). On November 5, 2014, a

refusal hearing occurred. At the end of the hearing, the

circuit court concluded as follows:

I find that the officer had probable cause to
arrest the defendant and to request submission to the
primary method by which this type of evidence is
gathered: the breath test. The officer read the

3
See, e.g., State v. Luedtke, 2015 WI 42, ¶11 & n.11, 362
Wis. 2d 1, 863 N.W.2d 592.

4
 No. 2015AP1452-CR

Informing the Accused . . . in the police squad car.
The defendant answered in the affirmative that he
would take the test. However, after he was
transported to the district station, he had a change
of heart after the Informing the Accused was read
verbatim a second time . . . .

I find that under those circumstances the officer
complied with what's required, that the refusal to
take the test offered by the officer was improper, and
the State may comment upon that during the course of
trial.
¶8 Immediately following the refusal hearing, Lemberger's

case was tried before a jury. During the trial the State

repeatedly informed the jury that Lemberger had refused to take

a breath test, arguing that Lemberger's refusal stemmed from "a

guilty conscience" and constituted "proof positive that he knew

he had been drinking." The circuit court also instructed the

jury as to how it should consider Lemberger's refusal:

Testimony has been received that the defendant
refused to furnish a breath sample for chemical
analysis. You should consider this evidence along with
all other evidence in this case, giving to it the
weight you decide that it's entitled to receive.4
The jury ultimately rendered a guilty verdict later that day.
Lemberger's sentence included 12 months in jail, a 36-month

revocation period, a fine, and costs. On November 6, 2014, a

judgment of conviction was entered.5

¶9 On June 5, 2015, Lemberger filed a postconviction

motion for a new trial. Lemberger contended that the State

4
See also Wis JI——Criminal 2663B.
5
On February 11, 2015, an amended judgment of conviction
was entered.

5
 No. 2015AP1452-CR

"violated [his] constitutional rights at trial by seeking an

inference of guilt on an element of the offense charged based on

[his] exercise of his constitutional right to refuse a

warrantless search in the form of a breathalyzer test" and that

Lemberger "received ineffective assistance of counsel, as

evident from trial counsel's failure to object to the State's

comments and arguments on [his] refusal."

¶10 On June 26, 2015, the circuit court denied Lemberger's

motion without a hearing, characterizing Lemberger's claim that

the State had violated Lemberger's constitutional rights as

"wholly unsupported by Wisconsin law." With regard to the

postconviction motion itself, the circuit court added that

defense counsel's "fail[ure] to address controlling legal

authority" on the issue presented was "[b]reathtaking[]." On

July 16, 2015, Lemberger filed a notice of appeal. On April 14,

2016, the court of appeals affirmed. Lemberger, unpublished

slip op. at ¶1. The court of appeals noted that "this time,

unlike in the circuit court, Lemberger briefly addresse[d] the
authority identified by the circuit court as controlling on the

breathalyzer issue." Id., ¶5. Nevertheless, the court of

appeals concluded that Lemberger had forfeited these arguments

6
 No. 2015AP1452-CR

"by failing to preserve them before the circuit court." Id.,

¶6.6

¶11 On May 16, 2016, Lemberger filed a petition for review

in this court. On October 11, 2016, we granted the petition.

III. STANDARD OF REVIEW

¶12 This case involves a circuit court's denial, without a

hearing, of a defendant's postconviction motion asserting an

ineffective assistance of counsel claim. Lemberger asks this

court to reverse the decision of the court of appeals and remand

the case to the circuit court for a Machner hearing.7

¶13 "[I]f the record conclusively demonstrates that the

defendant is not entitled to relief, the circuit court has the

discretion to grant or deny a hearing." State v. Allen, 2004 WI

106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433. Whether the record

conclusively demonstrates that the defendant is not entitled to

relief is a question of law for our independent review. State

v. Sulla, 2016 WI 46, ¶23, 369 Wis. 2d 225, 880 N.W.2d 659. But

"[w]e review a circuit court's discretionary decisions under the

6
The court of appeals also remarked that it likely would
have affirmed even if it had addressed the merits of Lemberger's
contentions because it "lack[ed] authority to apply
interpretations that would appear to conflict with" controlling
case law which Lemberger had failed otherwise to rebut. State
v. Lemberger, No. 2015AP1452-CR, unpublished slip op. at ¶¶10-11
(Wis. Ct. App. Apr. 14, 2016) (citing Cook v. Cook, 208
Wis. 2d 166, 189, 560 N.W.2d 246 (1997)).
7
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct.
App. 1979).

7
 No. 2015AP1452-CR

deferential erroneous exercise of discretion standard." Allen,

274 Wis. 2d 568, ¶9.

¶14 "A claim of ineffective assistance of counsel is a

mixed question of fact and law. We will uphold the circuit

court's findings of fact unless they are clearly erroneous," but

"the ultimate determination of whether counsel's assistance was

ineffective is a question of law, which we review de novo."

State v. Carter, 2010 WI 40, ¶19, 324 Wis. 2d 640, 782

N.W.2d 695 (citations omitted).

¶15 Finally, we "review[] constitutional questions, both

state and federal, de novo." State v. Lagrone, 2016 WI 26, ¶18,

368 Wis. 2d 1, 878 N.W.2d 636 (quoting State v. Schaefer, 2008

WI 25, ¶17, 308 Wis. 2d 279, 746 N.W.2d 457).8

IV. ANALYSIS

¶16 "Under the Sixth and Fourteenth Amendments to the

United States Constitution, a criminal defendant is guaranteed

the right to effective assistance of counsel." State v.

Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334
(citing Strickland v. Washington, 466 U.S. 668, 686 (1984)).

8
The State "does not ask [us] to decide the case on the
forfeiture issue" pertaining to Lemberger's failure to cite
pertinent case law in his postconviction motion, and we do not
address the issue further. See Phelps v. Physicians Ins. Co. of
Wis. Inc., 2009 WI 74, ¶61 n.15, 319 Wis. 2d 1, 768 N.W.2d 615
("This court has the discretion to review an issue that has been
waived when it involves a question of law, has been briefed by
the opposing parties, and is of sufficient public interest to
merit a decision." (quoting Gumz v. N. States Power Co., 2007 WI
135, ¶73, 305 Wis. 2d 263, 742 N.W.2d 271)).

8
 No. 2015AP1452-CR

The same right is guaranteed under Article I, section 7 of the

Wisconsin Constitution. E.g., State v. Domke, 2011 WI 95, ¶34,

337 Wis. 2d 268, 805 N.W.2d 364. "Counsel will be said to have

provided constitutionally inadequate representation if the

defendant can show that counsel performed deficiently and that

such deficient performance prejudiced the defendant." Id.

(citing Strickland, 466 U.S. at 687). As will be explained

below, we conclude that Lemberger's attorney did not perform

deficiently; consequently, we need only address that prong of

the Strickland test in our analysis. See Strickland, 466 U.S.

at 697.

¶17 "The proper measure of attorney performance remains

simply reasonableness under prevailing professional norms." Id.

at 688. Our application of this standard "must be highly

deferential." Id. at 689. "[C]ounsel's performance need not be

perfect, nor even very good, to be constitutionally adequate."

State v. Shata, 2015 WI 74, ¶56, 364 Wis. 2d 63, 868 N.W.2d 93

(quoting Carter, 324 Wis. 2d 640, ¶22). Additionally, "[t]here
are countless ways to provide effective assistance in any given

case." Strickland, 466 U.S. at 689.

¶18 Particularly relevant to this case:

As a general matter, "[c]ounsel's failure to
raise [a] novel argument does not render his
performance constitutionally ineffective." Anderson
v. United States, 393 F.3d 749, 754 (8th Cir. 2005).
"While the Constitution guarantees criminal defendants
a competent attorney, it 'does not insure that defense
counsel will recognize and raise every conceivable
constitutional claim.'" Id. (quoting Engle v. Isaac,
456 U.S. 107, 134 (1982)). . . . "[F]ailure to raise

9
 No. 2015AP1452-CR

arguments that require the resolution of unsettled
legal questions generally does not render a lawyer's
services 'outside the wide range of professionally
competent assistance' sufficient to satisfy the Sixth
Amendment." New v. United States, 652 F.3d 949, 952
(8th Cir. 2011) (quoting Strickland, 466 U.S. at 690).
Basham v. United States, 811 F.3d 1026, 1029 (8th Cir. 2016).

¶19 These considerations resolve Lemberger's ineffective

assistance claim in the State's favor. Lemberger argues that

the State violated his constitutional right against self-

incrimination and his constitutional right to due process of law
"by repeatedly asking the jury during his trial for drunk

driving to infer guilt based on his refusal to submit to a

warrantless breathalyzer test." However, 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.

¶20 In State v. Albright, decided over three decades ago,

a defendant refused to take a breathalyzer test after he was

pulled over for drunk driving and informed of the implied

consent law. State v. Albright, 98 Wis. 2d 663, 667, 298

N.W.2d 196 (Ct. App. 1980). The court of appeals explained that

use of test refusal evidence for the purpose of
showing consciousness of guilt is constitutionally
permissible. The only rationale for a rule
prohibiting comment on a refusal would be that there
is a right to refuse the test. Wisconsin drivers have

10
 No. 2015AP1452-CR

no constitutional right to refuse to take the
breathalyzer.
Id. at 669 (footnote omitted).9

¶21 Albright was decided just a few years before the

Supreme Court's decision in South Dakota v. Neville, 459 U.S.

553 (1983). Neville involved a defendant's refusal to comply

with a blood-alcohol test under South Dakota's implied consent

law. Neville, 459 U.S. at 554-59. In Neville the Supreme Court

examined whether "admission into evidence of a defendant's

refusal to submit to [a blood-alcohol] test . . . offend[s] the

right against self incrimination." Id. at 554. It concluded

that it did not. Id. The Court also addressed whether

admission of such evidence violated the defendant's right to due

process of law because he "was not fully warned of the

consequences of refusal." Id. at 564. Again, the Court found

no constitutional violation, noting that the defendant's "right

to refuse the blood-alcohol test . . . is simply a matter of

grace bestowed by the South Dakota Legislature." Id. at 565.

¶22 Following on the heels of Neville were a series of
decisions by this court that addressed various questions related

to use of refusal evidence at trial. But each time, this court

approved the practice. In State v. Bolstad, for example, the

9
We observe that earlier in the year, the court of appeals
(indeed, the same three-judge panel of the court of appeals) had
stated in Milwaukee County v. Proegler that "the taking of a
breath sample is a search . . . within the meanings of the
United States and Wisconsin Constitutions." Milwaukee Cty. v.
Proegler, 95 Wis. 2d 614, 623, 291 N.W.2d 608 (Ct. App. 1980).

11
 No. 2015AP1452-CR

defendant argued that the trial court had erred in barring him

from offering evidence of his reasons for refusing to submit to

a blood test. State v. Bolstad, 124 Wis. 2d 576, 578, 370

N.W.2d 257 (1985). We agreed, but in so doing affirmed the

general use of refusal evidence at trial:

The state may submit the relevant and, hence,
admissible evidence that Bolstad refused the test for
blood alcohol content. That refusal evidence is
relevant, because it makes more probable the crucial
fact of intoxication, because, as State v. Albright,
[98 Wis. 2d] at 668, said, "A reasonable inference
from refusal to take a mandatory [blood alcohol] test
is consciousness of guilt." Thus, the inference to be
drawn is closely akin to an admission against
interest. The inference——if one is in fact drawn——
that a defendant was conscious of his guilt of
intoxication tends to make more probable a fact that
is of consequence in this criminal action, the fact of
intoxication. Unrebutted, it could be deemed,
inferentially at least, proof of intoxication.
Bolstad, 124 Wis. 2d at 578, 585.

¶23 Crandall involved a state constitutional challenge to

the admission of refusal evidence at trial. State v. Crandall,

133 Wis. 2d 251, 253, 394 N.W.2d 905 (1986). The defendant

contended that the due process clause of Article I, section 8 of

the Wisconsin Constitution "requires that a defendant accused of

operating a motor vehicle while intoxicated be warned that a

refusal to submit to a chemical breath test can be used against

her as evidence at trial." Id. at 252-53. In other words, the

defendant was relitigating, under the Wisconsin Constitution,

one of the questions presented in Neville. See id. at 254, 260.

¶24 In dismissing this argument and concluding that "the
necessity of due process and fairness under the Wisconsin

12
 No. 2015AP1452-CR

Constitution [does not] require[] more safeguards or warnings

than the United States Supreme Court required to satisfy federal

due process in South Dakota v. Neville," we emphasized that

"[i]n Wisconsin there is no constitutional or statutory right to

refuse a breathalyzer test. . . . The Wisconsin implied consent

statute . . . '[c]learly does not recognize a right to refuse

the test.'" Id. at 255, 257, 260 (quoting Albright, 98 Wis. 2d

at 671).

¶25 In Zielke we again recognized that "the fact of the

defendant's refusal to submit to a test may be introduced at

trial on the substantive drunk driving offense as a means of

showing consciousness of guilt." State v. Zielke, 137

Wis. 2d 39, 49, 403 N.W.2d 427 (1987). Our subsequent

discussion referenced Albright, Neville, Bolstad, and Crandall.

Id. at 49-51.

¶26 Our decision in State v. Reitter required this court

to determine "whether a police officer is required to advise a

custodial defendant, charged with operating a motor vehicle
while intoxicated, that the right to counsel does not apply to

the administration of a chemical test under Wisconsin's implied

consent statute" and "whether the due process clause of the

Wisconsin Constitution imposes an affirmative duty upon police

officers to advise defendants that the right to counsel does not

attach to the implied consent statute." State v. Reitter, 227

Wis. 2d 213, 217, 595 N.W.2d 646 (1999).

¶27 We concluded that "officers are under no affirmative
duty to advise custodial defendants about rights for which the
13
 No. 2015AP1452-CR

statute makes no provision." Id. at 218. We also concluded

that "because the implied consent law creates statutory

privileges, not constitutional rights, no due process violation

occurs when an officer does not inform a defendant that the

right to counsel does not attach to the stages preceding

administration of a chemical test." Id. Relevant here, we

observed with regard to the due process issue, "[T]he right of

refusal, if granted by the legislature, is a statutory

privilege, not a constitutional right. Unlike similar laws in

other states, the Wisconsin implied consent

statute . . . creates no such statutory privilege." Id. at 239

(citations omitted).10

¶28 More recently, in Missouri v. McNeely, a plurality of

the Supreme Court noted that:

States have a broad range of legal tools to enforce
their drunk-driving laws and to secure BAC [blood
alcohol concentration] evidence without undertaking
warrantless nonconsensual blood draws. For example,
all 50 States have adopted implied consent laws that
require motorists, as a condition of operating a motor
vehicle within the State, to consent to BAC testing if
they are arrested or otherwise detained on suspicion
of a drunk-driving offense. Such laws impose
significant consequences when a motorist withdraws
consent; typically the motorist's driver's license is
immediately suspended or revoked, and most States
allow the motorist's refusal to take a BAC test to be

10
State v. Albright, 98 Wis. 2d 663, 298 N.W.2d 196 (Ct.
App. 1980); State v. Bolstad, 124 Wis. 2d 576, 370 N.W.2d 257
(1985); State v. Crandall, 133 Wis. 2d 251, 394 N.W.2d 905
(1986); State v. Zielke, 137 Wis. 2d 39, 403 N.W.2d 427 (1987);
and State v. Reitter, 227 Wis. 2d 213, 595 N.W.2d 646 (1999),
were all decided unanimously, with no separate writings.

14
 No. 2015AP1452-CR

used as evidence against him in a subsequent criminal
prosecution.
Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552, 1566 (2013)

(plurality opinion) (emphasis added) (citations omitted). Also

instructive is the Supreme Court's decision in Birchfield v.

North Dakota, 579 U.S. ___, 136 S. Ct. 2160 (2016); though

decided after Lemberger's trial, it confirmed that McNeely and

Neville "referred approvingly to the general concept of implied-

consent laws that impose civil penalties and evidentiary

consequences on motorists who refuse to comply." Birchfield,

136 S. Ct. at 2185 (first citing McNeely, 133 S. Ct. at 1565-66

(plurality opinion); then citing Neville, 459 U.S. at 560).

¶29 Thus, 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. The jury

instructions used in Lemberger's case bear that conclusion out.

See Wis JI——Criminal 2663B ("Testimony has been received that
the defendant refused to furnish a (breath) . . . sample for

chemical analysis. . . . You should consider this evidence along

with all the other evidence in this case, giving to it the

weight you decide it is entitled to receive.").

¶30 Lemberger argues that Albright, Bolstad, and Crandall

"should be overruled and no longer followed" due to "subsequent

developments in the law." In particular, Lemberger claims that
decisions by the court of appeals in State v. Banks, 2010 WI App

15
 No. 2015AP1452-CR

107, 328 Wis. 2d 766, 790 N.W.2d 526; State v. Padley, 2014 WI

App 65, 354 Wis. 2d 545, 849 N.W.2d 867; and State v. Blackman,

2016 WI App 69, 371 Wis. 2d 635, 886 N.W.2d 94, petition for

rev. granted, 2016 WL 8230599 (table) (Dec. 19, 2016), have

undermined their authority, and that in the wake of Padley and

Blackman, Article I, section 11 of the Wisconsin Constitution,

Wisconsin's counterpart to the Fourth Amendment to the United

States Constitution, "entitled Lemberger to refuse to consent to

the breath test in this case."

¶31 In Padley and Blackman the court of appeals drew a

distinction between "implied consent" under the implied consent

law and "actual consent." E.g., Padley, 354 Wis. 2d 545, ¶37;

Blackman, 371 Wis. 2d 635, ¶10. In Banks the court of appeals

concluded that the defendant's attorney had performed

deficiently by failing to object when the State both "introduced

testimony regarding [the defendant's] refusal to voluntarily

submit a DNA sample" and "commented on [the defendant's] refusal

during closing, suggesting his refusal demonstrated
consciousness of guilt." Banks, 328 Wis. 2d 766, ¶25.

¶32 We need not address the merits of Lemberger's argument

that these three cases somehow affect the long line of decisions

of this court discussed above because the question before this

court is not the substantive validity of Lemberger's argument

but instead whether trial counsel was required to make it in

order for Lemberger to have received constitutionally effective

assistance of counsel.

16
 No. 2015AP1452-CR

¶33 The answer to this question is no. As an initial

matter, the court of appeals in Banks, Padley, and Blackman

would have had no authority to "overrule, modify or withdraw

language from a previous supreme court case." Cook v. Cook, 208

Wis. 2d 166, 189, 560 N.W.2d 246 (1997). Nor has Lemberger

demonstrated that controlling law——Supreme Court case law or a

statutory amendment, for example——overruled any of the cases

cited in this analysis.11 At the absolute best, then, Lemberger

was faced with an unsettled legal question at trial. "We think

ineffective assistance of counsel cases should be limited to

situations where the law or duty is clear such that reasonable

counsel should know enough to raise the issue." State v.

McMahon, 186 Wis. 2d 68, 85, 519 N.W.2d 621 (Ct. App. 1994). As

noted above, "failure to raise arguments that require the

resolution of unsettled legal questions generally does not

render a lawyer's services 'outside the wide range of

professionally competent assistance' sufficient to satisfy the

Sixth Amendment." Basham, 811 F.3d at 1029 (quoting New, 652
F.3d at 952).

11
Lemberger seems to suggest that Missouri v. McNeely, 569
U.S. ___, 133 S. Ct. 1552 (2013), affected the law cited in this
opinion. McNeely addressed only the exigent circumstances
exception to the warrant requirement, which is not at issue
here. See, e.g., Birchfield v. North Dakota, 579 U.S. ___, 136
S. Ct. 2160, 2174 (2016) (explaining that the McNeely Court
"pointedly did not address any potential justification for
warrantless testing of drunk-driving suspects except for the
exception 'at issue in th[e] case,' namely, the exception for
exigent circumstances" (quoting McNeely, 133 S. Ct. at 1558)).

17
 No. 2015AP1452-CR

¶34 We must add to what has already been discussed that,

in the time since Lemberger's trial, the Supreme Court has

clarified in Birchfield that "the Fourth Amendment permits

warrantless breath tests incident to arrests for drunk driving."

Birchfield, 136 S. Ct. at 2184.12 That is, the Supreme Court has

explained that "the categorical search-incident-to-arrest

doctrine," whereby "the mere 'fact of the lawful arrest'

justifies 'a full search of the person,'" applies to the very

circumstances present in this case. Id. at 2176, 2180 (quoting

United States v. Robinson, 414 U.S. 218, 235 (1973)). Thus

Birchfield provides an additional reason why defendants lawfully

arrested for drunk driving have "no right to refuse" a breath

test. Id. at 2186.13

12
In contrast, the Court concluded that a blood test could
not "be administered as a search incident to a lawful arrest for
drunk driving." Birchfield, 136 S. Ct. at 2185.
13
Lemberger urges us to interpret Article I, section 11 of
the Wisconsin Constitution to "[p]rovide [b]roader [p]rotection"
than offered by the Fourth Amendment. "We generally interpret
the search and seizure provision of our state constitution
consistent with the United States Supreme Court's interpretation
of the Fourth Amendment. State v. Tullberg, 2014 WI 134, ¶29
n.17, 359 Wis. 2d 421, 857 N.W.2d 120 (citing State v. Robinson,
2010 WI 80, ¶24 n.11, 327 Wis. 2d 302, 786 N.W.2d 463). Given
that our task is "to say what the law is," Marbury v. Madison, 5
U.S. (1 Cranch) 137, 177 (1803), Lemberger must demonstrate that
the text of the Wisconsin Constitution dictates a different
result than would obtain under the United States Constitution.

(continued)
18
 No. 2015AP1452-CR

¶35 The bottom line is that although Lemberger's trial

counsel might have attempted to raise below the arguments

Lemberger now advances, his failure to do so was not

"[un]reasonable[] under prevailing professional norms" given the

current state of the law. Strickland, 466 U.S. at 688.

Lemberger did not receive ineffective assistance of counsel.

V. CONCLUSION

¶36 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

Lemberger's request rests largely on a handful of
generalized policy arguments (for example, that Officer Naylor
could have, and therefore should have, obtained a warrant, or
that using different legal analyses for breath and blood tests
would be confusing) that do not specifically grapple with the
text of the Wisconsin Constitution or the basic legal premises
supporting the search-incident-to-arrest doctrine and
Wisconsin's implied consent law. We decline specifically to
address and reject each of Lemberger's arguments here; suffice
it to say that Lemberger does not adequately establish that
Article I, section 11 possesses a different meaning than the
Fourth Amendment to the United States Constitution in this
context.

19
 No. 2015AP1452-CR

postconviction motion without a hearing. We affirm the decision

of the court of appeals.

By the Court.—The decision of the court of appeals is

affirmed.

20
 No. 2015AP1452-CR.ssa

¶37 SHIRLEY S. ABRAHAMSON, J. (concurring). The

defendant argues in the instant case that his constitutional

right against self-incrimination and his constitutional right to

due process of the law were violated by the prosecutor's

repeated comments to the jurors that they could infer the

defendant's guilt for drunk driving from his refusal to submit

to a warrantless breathalyzer test.

¶38 I agree with the majority opinion that the defendant's

constitutional rights were not violated by the prosecutor's

comments and that the defendant did not receive ineffective

assistance of counsel. I disagree with the defendant that long-

standing Wisconsin law permitting comment on the defendant's

refusal to submit to a breathalyzer test has been abrogated.

¶39 I write separately because the majority opinion's

refrain, repeated in the instant case five times and in other

decisions, that the defendant "had no constitutional or

statutory right to refuse to take the breathalyzer test" states

the law too broadly and veers toward being misleading. See,
e.g., majority op., ¶¶3, 19, 24, 29, 36.

¶40 A more correct statement of the law, in my opinion, is

that a driver who refuses to take a breath test that is lawfully

administered to the driver for a drunk driving offense may

suffer consequences for refusal.

¶41 With regard to constitutional rights pertaining to

drunk driving, namely an individual's Fourth Amendment right to

be secure against unreasonable search and seizure, a warrantless
breath test and a warrantless blood test are treated

1
 No. 2015AP1452-CR.ssa

differently. The instant case involves a breath test, not a

blood test.

¶42 The "Fourth Amendment permits warrantless breath tests

incident to arrests for drunk driving." Birchfield v. North

Dakota, 136 S. Ct. 2160, 2184 (2016). In contrast, as a general

rule, the Fourth Amendment does not permit warrantless blood

draws incident to lawful drunk driving arrests. Birchfield, 136

S. Ct. at 2185.

¶43 Numerous cases demonstrate that drivers can and do

refuse to take breath tests incident to arrest for drunk

driving, that law enforcement officers cannot and do not force a

driver to take a breath test,1 and that the driver may suffer

consequences (under state law) as a result of the refusal.

Birchfield, 136 S. Ct. at 2168-69.2

¶44 With regard to statutory rights pertaining to drunk

driving, the Wisconsin legislature has regulated breath tests

for drunk drivers. See Wisconsin Implied Consent Law, Wis.

Stat. § 343.305.
¶45 The Wisconsin Implied Consent Law does not empower law

enforcement officers to take a sample of a driver's breath

forcibly (if that is even possible). To acquire a driver's

1
A breath test requires driver participation and
cooperation. Birchfield v. North Dakota, 136 S. Ct. 2160, 2168
(2016).
2
See, e.g., Birchfield, 136 S. Ct. at 2185 ("Our prior
opinions have referred approvingly to the general concept of
implied-consent laws that impose civil penalties and evidentiary
consequences on motorists who refuse to comply.").

2
 No. 2015AP1452-CR.ssa

participation and cooperation in the administration of a breath

test, the Implied Consent Law requires a law enforcement officer

to advise the driver that the officer is requesting a breath

test and that if the driver refuses to take the breath test,

there will be adverse consequences for the driver.

¶46 The Law sets forth an "Informing the Accused Form,"

which a law enforcement officer is required to read verbatim to

a driver. The Form is read "[a]t the time that a chemical test

specimen is requested" under the Wisconsin Implied Consent Law.

The text of the reading explicitly advises a driver that he or

she may refuse to give a breath sample but that a refusal has

consequences, including revocation of operating privileges and

use of the refusal against the driver in court:

You have either been arrested for an offense that
involves driving or operating a motor vehicle while
under the influence of alcohol or drugs, or both, or
you are the operator of a vehicle that was involved in
an accident that caused the death of, great bodily
harm to, or substantial bodily harm to a person, or
you are suspected of driving or being on duty time
with respect to a commercial motor vehicle after
consuming an intoxicating beverage.

This law enforcement agency now wants to test one or
more samples of your breath, blood or urine to
determine the concentration of alcohol or drugs in
your system. If any test shows more alcohol in your
system than the law permits while driving, your
operating privilege will be suspended. If you refuse
to take any test that this agency requests, your
operating privilege will be revoked and you will be
subject to other penalties. The test results or the
fact that you refused testing can be used against you
in court.

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 No. 2015AP1452-CR.ssa

Wis. Stat. § 343.305(4) (emphasis added).3

¶47 The State apparently agrees that under the Implied

Consent Law a driver may refuse to take a breath test but that

the driver suffers consequences. The State's brief explains:

"[T]here is no right to refuse a breath test under the implied

consent law without consequences."4

¶48 For the reasons set forth, I write separately.

¶49 I am authorized to state that Justices ANN WALSH

BRADLEY and DANIEL KELLY join this concurring opinion.

3
Other provisions of the Implied Consent Law also connote
that a driver has a choice to submit to or refuse to submit to a
test. See, e.g., Wis. Stat. § 343.305(5)(a) ("If the person
submits to a test under this section, the officer shall direct
the administering of the test."); § 343.305(9) (entitled
"Refusals; Notice and Court Hearing"; directing law enforcement
and judicial action when the driver refuses to take a breath
test).
4
See Brief of Plaintiff-Respondent (State of Wisconsin) at
24 (emphasis added).

The notion that a driver has a right to refuse to take a
breath test and face adverse consequences is similar to the
doctrine in contract law that a party to a contract has a right
to breach a contract and suffer the consequences. See, e.g.,
Stop-N-Go of Madison, Inc. v. Uno-Ven Co., 184 F.3d 672, 680
(7th Cir. 1999) (discussing efficient breaches of contract)
(citing E. Allen Farnsworth, Contracts § 12.8 at 194-95 (2d ed.
1990) ("Most courts have not infringed on the freedom to keep or
break a contract traditionally afforded a party by the common
law and endorsed by the notion of efficient breach.")).

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 No. 2015AP1452-CR.dk

¶50 DANIEL KELLY, J. (concurring). I join the mandate

of the court and the majority opinion to the extent it is not

inconsistent with Justice ABRAHAMSON's concurrence, and I also

join Justice ABRAHAMSON's concurrence.

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 No. 2015AP1452-CR.dk

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