State v. LembergerAnnotate this Case
After a jury trial, Defendant was convicted of the crime of operating a motor vehicle while intoxicated - fourth offense. Defendant requested a new trial, arguing that his trial attorney provided ineffective assistance by failing to object to the prosecutor’s statements that Defendant had refused to submit to a breathalyzer test following his arrest for drunk driving. Specifically, Defendant claimed that he 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, and therefore, his trial attorney should have objected to the prosecutor’s statements. The circuit court denied the postconviction motion with a hearing. The court of appeals affirmed. The Supreme Court affirmed, holding (1) upon Defendant’s arrest for drunk driving he had no constitutional or statutory right to refuse to take the breathalyzer test; (2) therefore, the State could comment at trial on Defendant's improper refusal to take the test; and (3) accordingly, Defendant’s attorney did not render ineffective assistance of counsel in failing to argue contrary to controlling precedent.