(concurring in part; dissenting in part). I agree with the majority's resolution of Jackson's challenge to the admissibility of the urine sample test results. I disagree, however, with the majority's decision upholding the trial court's denial of Jackson's motion to suppress his confession.1
• Jackson's appeal presents a narrow issue of great significance: whether a person in custody, who initially *346invokes the right to counsel, voluntarily waives counsel by resuming communication with police and explicitly waiving counsel, when the resumption and waiver are based on inaccurate information from police regarding the availability of counsel. I conclude that, under such circumstances, the right to counsel has not been "scrupulously honored" as required under Miranda v. Arizona, 384 U.S. 436, 479 (1966).
The majority opinion neglects to include the critical portion of the Miranda-Goodchild hearing that is central to Jackson's claim. Responding to the prosecutor's questions, Milwaukee Police Detective James Guzinski, who "interrogated [Jackson] as to the extent and nature of his arrest," testified:
Q: Describe what conversation took place in regards to his constitutional rights.
A: I had given him the standard Miranda warning; and, after so doing, he asked if I could arrange to have a lawyer. At that point I told him I could not do that, and that I was going to end my interview with him. He stated he wanted to talk to me now. I stated that he would have to waive his right to an attorney and he would have to be very clear about that which he stated yes, he did want to do that because he wanted to cooperate in giving a statement and answering my questions.
Q: When he told you that — asked you if you could get him a lawyer, did he at any time say he did not want to make a statement to you?
A: No, on the contrary, he actually wanted to give me a statement then, but his indication was he did not want to see himself get into any further trouble as a result of this and only wanted to have a lawyer by him for such constitutional purposes.
*347(Emphases added.) Under cross examination, Detective Guzinski further testified:
Q: Detective, I want to try to understand the exact sequence. After you read him his rights and asked him if he wanted to make a statement, what exact words do you recall him speaking to you?
A: He asked me if he could have a lawyer right now.
Q: Is that basically what he said?
A: Those words exactly at this point in time, but what he wanted was me to obtain a lawyer right now.
Q: Do you agree with the wording on your report, ["H]e then asked me if I could get him a lawyer[."]?
A: That may very well have been. I wrote that right after that occurred.
Q: Was your sense of that whether you personally could get him a lawyer — you were physically able to go and summon a lawyer for him, or was he asking that someone bring him a lawyer?
A: His intent to me was to have a lawyer present there, then and there, right now, and if I could arrange for that.
Q: And you said no, I can't, basically?
A: That's correct.
Q: Okay. And then you went on to talk about when charges were issued a Public Defender would be assigned, is that true?
A: I explained to him how the process would work with — a lawyer would be given to him as per the Public Defender's Office.
*348Q: Okay. Could you as a matter of actual fact have gotten on the phone at that moment and tried to summon an attorney from the Public Defender's or somewhere else?
A: No.
Q: Why not?
A: I had no phone. I'm in a locked room. I have no access to any of these things.
Q: You were at the Criminal Justice Facility?
A: That is correct.
Q: And you had no access to a phone to call anyone?
A: I had no access to leave the room.
Q: You had no way to get him a lawyer at that point?
A: No.
Q: In your mind the words you said about having a Public Defender appointed once the District Attorney decided on charges, did you give Mr. Jackson any time[ ]frame in which that would happen?
A: As to minutes and hours?
Q: Or days.
A: I told him that the case would be reviewed and then when that — once charges were established the Public Defender's Office would step in for his defense.
Q: And then Mr. Jackson replied to that statement that he would feel better having an attorney. Those are the words in your report. Are those correct words?
A: You are reading my report, I'm not.
*349(Emphases added.)
Jackson's testimony essentially confirmed Detective Guzinski's account. On direct examination, Jackson testified:
Q: And after reciting your Miranda rights to you, were you asked by Detective Guzinski if you were willing to answer questions?
A: Yes.
Q: And what was — as you recall, your exact response?
A: I told the detective that I wanted to speak to him but I would want — wouldn't want to get myself into any further trouble so I would like to have an attorney present.
Q: And what was the officer — the detective's response to that?
A: The officer said — the detective said to me that if I should respond to him without a lawyer, that it would show I'm not a hardened criminal and it would look good for the D.A.[ ]
Q: And how did you respond to that?
A: On that note we commenced speaking. He decided to ask me some questions, and I remember 7 asked him again could I get a lawyer, and he said well, not right then, and the interview continued.
Q: Did you ask him if he personally would get you a lawyer?
A: I didn't really ask the question could I be accommodated with a lawyer.
Q: And did you at another point make a statement that you would feel better having a lawyer with you?
*350A: Yes, I did.
Q: And at what point did the detective tell you or make this reference to you — not appearing to be a hardened criminal if you spoke with him without an attorney present?
A: This happened during the course of, you know, my insisting that I wanted an attorney and he trying to show me the benefit. Because I remember feeling that I wanted to cooperate, and that was essentially what I wanted to do with the protection of ■ the lawyer.
So I continued to tell him that, that I wanted to help the process but I wanted the attorney. And it was like we were arguing back and forth at that point, and he said: Well, Mr. Jackson, the D.A. is in the process of preparing charges. And I'm saying something is — generally to the effect that, you know, it would look good that you're not a hardened criminal if you would proceed to make a statement without the lawyer, because at that point what he was saying to me, that, you know, if I was really going, to come clean like that why am I hiding behind the attorney. That was the general impression that I get, and I wanted the attorney because I didn't want to believe it.
(Emphases added.) On cross-examination, Jackson further testified:
Q: So it didn't really surprise you when Detective Guzinski told you you couldn't have a lawyer right then, it would be later on that the Public Defender would appoint one, is that correct?
A: No. I expected to get a lawyer before we proceeded at that point.
(Emphases added.)
*351Jackson argues that his confession was involuntary because his waiver of his right to an attorney was based on inaccurate information received from Detective Guzinski — that an attorney could not be provided at the interrogation. The State first responds with two frivolous arguments: first, that Jackson's invocation of his right to counsel was insufficiently clear; and second, that Jackson's counsel ultimately withdrew the motion to suppress by, in effect, acquiescing to the trial court's refusal to suppress the statement. The record provides no support for either argument and, quite appropriately, the majority relies on neither theory.
The State next offers a more substantial response: that Jackson's resumption of communication and waiver of counsel trumped his earlier invocation of his right to counsel. The State would be correct but for the complicating factor: Jackson's decision to resume the interview without counsel was based, at least in part, on the inaccurate information he received from Detective Guzinski about whether counsel could be provided at the interrogation.
As the State explains, in Duckworth v. Eagan, 492 U.S. 195 (1989), the Supreme Court concluded that an officer's advice "that a lawyer would be appointed 'if and when you go to court' " did not undermine the protection of a defendant's right to counsel because "Miranda does not require that attorneys be producible on call, but only that the suspect be informed . . . that he has the right to an attorney before and during questioning, and that an attorney would be appointed for him if he could not afford one." Duckworth, 492 U.S. at 197, 204. Indeed, as Duckworth went on to explain, "Miranda emphasized that it was not suggesting that 'each police station must have a "station house lawyer" present at all times to advise prisoners.'" Id. at 204. *352And, as the majority points out, Duckworth explains that "if 'the police cannot provide appointed counsel, Miranda requires only that the police not question a suspect unless he waives his right to counsel.'" Majority at 337 (quoting Duckworth, 492 U.S. at 204).
But there’s the rub: "if the police cannot provide appointed counsel." And, in Duckworth, under the law of Indiana, the police could not do so. See Duckworth, 492 U.S. at 204 ("[T]his [.Miranda warning] instruction accurately described the procedure for the appointment of counsel in Indiana."). In Wisconsin, however, the police could have provided Jackson with a lawyer. See § 977.05(6)(c), Stats, (specifying the circumstances under which "[t]he state public defender may not provide legal services or assign counsel for an adult in a criminal case"); see also Wis. Adm. Code §§ PD 2.01(1) (defining " '[e]mergency assignment'" as "assignment of counsel outside of normal business hours or when regular assignment will not provide both effective and early representation"); PD 2.02(1) (regarding "[e]mergency assignment procedure" and requiring evaluation "for indigency as soon as possible"); PD 2.03(1-4) (regarding the "[r]egular assignment procedure" including that for assignment of counsel "to any individual held in custody").
Under Miranda, a police warning must "clearly inforfm]" a suspect in custody "that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Miranda, 384 U.S. at 471, 479 (emphases added). Under Edwards v. Arizona, 451 U.S. 477 (1981), "an accused,. . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, *353exchanges, or conversations with the police." Edwards, 451 U.S. at 484-85 (emphasis added). Moreover, as the Supreme Court explained:
[I]f a suspect believes that he is not capable of undergoing such questioning without advice of counsel, then it is presumed that any subsequent waiver that has come at the authorities' behest, and not at the suspect's own instigation, is itself the product of the "inherently compelling pressures" and not the purely voluntary choice of the suspect.
Arizona v. Roberson, 486 U.S. 675, 681 (1988). See also Michigan v. Harvey, 494 U.S. 344, 345 (1990) ("[0]nce a criminal defendant invokes his Sixth Amendment right to counsel, a subsequent waiver of that right — even if voluntary, knowing, and intelligent under traditional standards — is presumed invalid if secured pursuant to police-initiated conversation.").
Clearly, Jackson invoked his right to counsel. Clearly, according to both Jackson's and Detective Guzinski's testimony, Jackson did so precisely because he believed that he was, in the Supreme Court's words, "not capable of undergoing such questioning without advice of counsel." See Roberson, 486 U.S. at 681. Clearly, Jackson was misinformed about whether, at the interrogation, counsel could be "made available to him." See Edwards, 451 U.S. at 484-85. Clearly, Jackson's resumption of communication with Detective Guzinski was based, at least in part, on that misinformation.
Jackson requested a lawyer to assist him at the interrogation. He did so, according to Detective Guzin-ski, because "he did not want to see himself get into any further trouble as a result of this and only wanted to have a lawyer by him for such constitutional purposes." *354Responding to the request, Detective Guzinski misinformed Jackson. A lawyer could have been provided. And, obviously, Detective Guzinski could have stepped out of the interrogation room and used a telephone to call the State Public Defender (just as he could have called a private lawyer for a prisoner specifically requesting that he do so).
Thus, while at first glance Duckworth would seem to defeat Jackson's claim, a closer reading reveals that Duckworth is distinguishable in two important ways. As Jackson explains:
First, \Duckworth] involved a challenge to the adequacy of the Miranda warnings given to the defendant in that case, and did not involve an assertion of the right to counsel. Second, and more importantly, unlike the instant case, the content of the Miranda warnings given in Duckworth "accurately described the procedure for the appointment of counsel in Indiana." Thus, Duckworth is not controlling.
(Citation omitted.)
Detective Guzinski's inaccurate response to Jackson's request for counsel rendered Jackson's subsequent waiver of counsel involuntary.2 A simple *355proposition clarifies the point. If Detective Guzinski had misinformed Jackson, "You do not have the right to an attorney," and, as a result, Jackson confessed, we all would easily conclude that Jackson's waiver of counsel was neither knowing nor voluntary. Here, instead, Detective Guzinski misinformed Jackson by, in effect, conveying, "You do not have the right to an attorney at this interrogation because I cannot provide one for you.” Detective Guzinski was wrong on both points. Jackson did have the right to an attorney at the interrogation, and Detective Guzinski could have stepped outside the interrogation room to call the public defender or have another officer do so.
Thus, Detective Guzinski misinformed Jackson about his right to be represented by counsel at the interrogation. The result for Jackson, at the interrogation, was the same as it would have been had Detective Guzinski simply misinformed Jackson, "You do not have the right to an attorney." It is undisputed that, at least in part, as a result of being misinformed, Jackson surrendered exactly what he repeatedly declared he wanted to preserve: in Jackson's words, "the protection of the lawyer" and, in Detective Guzinski's words, the protection of a lawyer because "he did not want to see himself get into any further trouble as a result of this and only wanted to have a lawyer by him for such constitutional purposes." Under these circumstances, Jackson's right to counsel was not "scrupulously honored." See Miranda, 384 U.S. at 479.
Therefore, I conclude that Jackson's waiver of counsel was neither knowing nor voluntary. Thus, the *356trial court erred in denying Jackson's motion to suppress and, accordingly, I respectfully dissent.3
Further, as explained in footnote three, because of what Jackson alleges to be a connection between the alleged violation under County of Riverside v. McLaughlin, 500 U.S. 44 (1991), and his confession, I also depart from the majority's analysis of Jackson's claim that counsel was ineffective for failing to challenge the Riverside violation.
Needless to say, Detective Guzinski's inaccurate response also rendered Jackson's subsequent waiver unknowing. In this appeal, however, Jackson has framed his challenge in terms of voluntariness. Under Arizona v. Roberson, 486 U.S. 675 (1988), as previously quoted, that framework is appropriate:
[I]f a suspect believes that he is not capable of undergoing such questioning without advice of counsel, then it is presumed that any subsequent waiver that has come at the authorities' behest, and not at the suspect's own instigation, is itself the product of the "inherently compelling pressures" and not the purely voluntary choice of the suspect.
*355Roberson, 486 U.S. at 681 (emphasis added).
As Jackson notes, the trial court "did not ma[k]e any specific findings regarding the Edwards violation." (I would also note that the postconviction court, in its written decision, inexplicably stated only that it "will not revisit this issue.") Jackson contends, however, that "the undisputed facts show that [his] request for counsel was not 'scrupulously honored.'" I agree. As the quoted portions of the hearing clarify, the essential facts are undisputed and, therefore, without remanding for factual findings, we should conclude, as a matter of law, that the trial court erred in denying Jackson's suppression motion.
Jackson also argues that the postconviction court erred in not holding an evidentiary hearing on his claim that counsel was ineffective for failing to pursue a trial court challenge under Riverside. Denying his motion for a Riverside violation/ineffective assistance of counsel hearing, the postconviction court stated that even if counsel had brought the challenge, it "would not have been granted because there was no indication that the delay caused the defendant to give a statement." Jackson, however, contends that "the delay in bringing [him] before a judicial officer within forty-eight hours deprived [him] of an opportunity to make contact with a representative of the Public Defender's office, and allowed the state an opportunity to mislead Jackson into believing he could not get a lawyer before he talked to Detective Guzinski."
The State concedes that Jackson "perhaps made sufficient allegations to raise a question whether there was a Riverside violation here." The State also acknowledges that Jackson's "claim of deficient performance ultimately rests on the existence of a meritorious Riverside claim sufficient to warrant suppression of his statement." Still, the State argues that, because Jackson's arrest was followed by a trip to the hospital for emergency treatment, the "bona fide emergency" exception, recognized in Riverside, allowed for noncompliance with the forty-eight hour rule. The State adds that Jackson's motion offered "no allegation regarding the length of the . . . hospital *357stay that would permit the conclusion that it was not long enough to render reasonable the delay in making a probable cause determination." Without the hearing Jackson has requested, however, the record does not reveal the length of the hospital stay or the details surrounding the delay. Because Jackson established a prima facie Riverside violation by virtue of the delay between his arrest and initial appearance, the State, not Jackson, had the burden to establish that the delay was proper. See State v. Koch, 175 Wis. 2d 684, 697, 499 N.W.2d 152, 159 (1993) ("When an arrested individual does not receive a probable cause determination within 48 hours, the burden of proof shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance.").
Therefore, unquestionably, the trial court also erred in denying Jackson's request for an evidentiary hearing on the alleged Riverside violation. Thus, if my analysis of the Edwards violation is incorrect, a remand still would be required for a Riverside hearing and the determination of whether any Riverside violation resulted in Jackson's confession.
(The majority applies State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996) in what, I think, is a most hypertechnical manner, concluding that Jackson failed to sufficiently allege prejudice in his postconviction motion because he never claimed that, but for counsel's alleged ineffectiveness, he would not have pled guilty. The majority’s approach, however, fails to acknowledge the obvious — that with the confession suppressed, counsel never would have advised Jackson to plead guilty, and Jackson would not have pled guilty, because the charge no longer could have been proven. As the State concedes, the remaining evidence could not have established intent to deliver. See State v. Griffin, 220 Wis. 2d 371, 584 N.W.2d 127 (Ct. App. 1998) (presence of controlled substances in a person's urine or blood, standing alone, is not sufficient to prove simple possession).)