The number one question asked of our attorneys in social settings is “Should I blow or not blow if stopped by the police?”  The cheap and easy response is blow if you know you will pass.  However, it’s more complicated than that in understanding your rights and the risks.

When pulled over under suspicion of operating while intoxicated (OWI) in Wisconsin, you might be faced with a crucial decision: whether or not to submit to an evidentiary chemical test of your blood, breath or urine. This decision can significantly impact your legal situation, and understanding both the legal and practical implications is essential.

Understanding the Legal Context

Wisconsin, like all states, has an Implied Consent Law. This means that by driving on public roads, you have implicitly consented to chemical testing (breath, blood, or urine) if an officer has probable cause to believe you are under the influence of alcohol, drugs or a combination thereof. Refusing to take an Implied Consent test has both immediate and long-term consequences.

Immediate Consequences of Refusing

1. Automatic License Revocation: In Wisconsin, refusing to take an Implied Consent test results in the issuance of a Notice of Intent to Revoke Operating Privilege form which law enforcement will file with the applicable court. If you fail to request a hearing to contest the refusal allegation within 10 business days, adverse judgment will be entered against you and your license will be revoked commencing 30 days from the date of notice. For a first offense, the revocation period is one year with a 30-day wait period before you would be eligible for even an occupational license. For a second offense, the revocation period is two years with a 90-day wait period before you would be eligible for an occupational license. For a third offense or greater, the revocation period is three years with a 120-day wait period before you would be eligible for an occupational license. In all cases the court will order that any vehicle owned or operated by you be equipped with an Ignition Interlock Device (IID). The court will additionally order that you complete an Alcohol and Other Drug Abuse (AODA) assessment and complete any recommended education or counselling. Failure to do so will result in a separate non-compliance revocation and render you ineligible for an occupational license. This revocation is separate from any criminal charges or penalties that may arise from the underlying OWI arrest itself.
2. Potential for a Search Warrant: If you refuse any Implied Consent test, the arresting officer may, and in most cases will, obtain a search warrant to compel a blood test. This can lead to further complications and delays, and a blood test may be more incriminating if it shows a higher blood alcohol concentration (BAC) than what might have been indicated by a breath or urine test, in the event that one of those methods was what was originally requested. More importantly, if a compelled blood draw is performed, you will potentially have incurred the penalties for refusing in vain.
3. Evidentiary Concerns and Potentially Increased Penalties: Even if a compelled blood draw is not performed, the refusal itself can be used as evidence of guilt in court. Prosecutors may argue that your refusal indicates a consciousness of guilt. In other words, a judge or jury may presume that the reason you refused an implied consent test is that you knew that it would likely be incriminating. Recent U.S. Supreme Court rulings have held that an individual has a protected constitutional right to refuse a blood draw and cannot be criminally punished for exercising such a protected right. That said, the reality is that a sentencing judge will be aware of your lack of cooperation and while no express punishment is permissible, it is likely to influence his or her sentencing decision. And there is no such prohibition on increased penalties if a breath or urine test is originally requested.
4. Long-Term Considerations
   1. Impact on Legal Strategy: If you refuse an Implied Consent test, your defense attorney may have fewer options to challenge the evidence against you. For example, the burden of proof in a refusal hearing is significantly lower than the burden of proof in the underlying OWI.  This is particularly problematic in a first offense OWI, where the penalties for the refusal are more onerous than those of the underlying OWI. In other words, even if you have a winning strategy for a defense to the OWI, you may end up in a worse position if you are convicted of the refusal but avoid the OWI. On the other hand, if you agree to the test and your BAC is above the legal limit, the evidence against you is straightforward, but there might still be avenues to contest the legality of the stop, arrest or the administration of the test.
   2. Insurance and Driving Record: An OWI conviction, combined with a license revocation, can impact your driving record and insurance rates for years to come. A refusal can exacerbate these issues, leading to increased insurance premiums and potential difficulties in getting coverage.

When Might Refusal be Considered?

Refusing an Implied Consent test might be considered if you believe the test could lead to an inaccurate result, particularly if you have concerns about the test’s reliability or the potential for a false positive. Additionally, if you are aware that your BAC is significantly over the legal limit, some might argue that refusing the test could be a strategic move to avoid more compelling evidence of intoxication. However, as stated above, law enforcement will almost certainly obtain a search warrant for a compelled blood draw rendering the refusal futile. The reality is that refusing an Implied Consent test is a mistake in nearly every situation.

Consulting a Legal Professional

Given the complexities of OWI cases, consulting a DUI lawyer who specializes in Wisconsin law is crucial if you’ve been charged with a refusal and underlying OWI. Here at Mays Law Office, LLC, our experienced drunk driving attorneys can provide personalized advice based on your case specifics, help you understand the potential outcomes, guide you through the legal process, and develop and execute winning defense strategies.

If you have been arrested for drunk driving in Wisconsin, it will be important for you to quickly familiarize yourself with Wisconsin’s drunk driving laws. Drunk driving convictions can have serious consequences; and, while you might have options for avoiding a conviction, leveraging these options requires a clear understanding of the law and how it applies to your specific circumstances.

Of course, you should also hire a drunk driving lawyer to represent you—and your lawyer will be able to explain everything you need to know. But, learning the basics before your free initial consultation will help ensure that you can work with your lawyer as effectively as possible.

What You Need to Know About Wisconsin’s Drunk Driving Laws

So, what do you need to know about Wisconsin’s drunk driving laws? Here are some of the basics:

OWI and PAC: Wisconsin’s Drunk Driving Offenses

While most states use the term driving under the influence (DUI), Wisconsin does not. Instead, Wisconsin’s drunk driving laws establish two different offenses: operating while intoxicated (OWI) and driving with a prohibited alcohol concentration (or PAC). Under Section 346.63(1) of the Wisconsin Statutes:

• Operating While Intoxicated (OWI) – “No person may drive or operate a motor vehicle while . . .[u]nder the influence of an intoxicant . . . to a degree which renders him or her incapable of safely driving.”
• Driving with a Prohibited Alcohol Concentration (PAC) – “No person may drive or operate a motor vehicle while . . . [t]he person has a prohibited alcohol concentration.” A “prohibited alcohol concentration” is 0.08 percent in most cases, though it is possible to face a PAC charge with a blood alcohol concentration (BAC) of just 0.02 percent in certain circumstances.

As you can see, under Wisconsin’s OWI statute, prosecutors do not need evidence of your BAC to secure a conviction. This means that you can be convicted of OWI even if you refuse the breath test or are unable to register a BAC reading. Generally speaking, OWI and PAC charges carry the same penalties under Wisconsin law, though having a significantly elevated BAC (0.15 percent or above) can enhance the penalties that are on the table in a PAC case.

Wisconsin’s Implied Consent Law

Another factor that can enhance the penalties you are facing is a violation of Wisconsin’s implied consent law. In fact, if you violate Wisconsin’s implied consent law, you can face penalties regardless of whether you are guilty of OWI or PAC. Wisconsin’s implied consent law states:

“Any person who . . . operates a motor vehicle upon the public highways of [Wisconsin]. . . is deemed to have given consent to one or more tests of his or her breath, blood or urine, for the purpose of determining the presence or quantity in his or her blood or breath, of alcohol . . . .”

Basically, if you drive on Wisconsin’s public roads, you give your implied consent to a BAC test if the police pull you over on suspicion of drunk driving. If you revise to take a BAC test, you can be charged with an implied consent violation, which can carry penalties including:

• A 12-month driver’s license suspension
• Mandatory ignition interlock device (IID) installation
• Mandatory alcohol assessment and treatment

But, while Wisconsin drivers need to comply with the state’s implied consent law, the police need to comply with the law as well. If the police did not fully comply with the law during your drunk driving stop, this could provide a defense in your case.

Wisconsin’s Drunk Driving Penalties

Regardless of whether you are facing an OWI charge or a PAC charge, you are facing steep penalties under Wisconsin’s drunk driving laws. Depending on the circumstances of your case, if convicted, you could face penalties including:

• Fines
• Surcharges
• Driver’s license suspension
• Mandatory IID installation or 24/7 sobriety program
• Jail time

Various factors can increase the penalties for OWI and PAC charges in Wisconsin as well. For example, if you caused an accident or had a minor under age 16 in your vehicle at the time of your arrest, this could increase the risks of your drunk driving case significantly.

Wisconsin’s Ignition Interlock Law

As discussed above, mandatory IID installation is a potential penalty for both implied consent violations and OWI/PAC charges. Under Wisconsin law, mandatory IID installation is required in some cases. Specifically, the judge must order mandatory IID installation if either: (i) your BAC was 0.15 percent or above; (ii) you have a qualifying prior drunk driving conviction; or, (iii) you refused to provide a BAC sample during your traffic stop.

Plea Bargaining in Wisconsin Drunk Driving Cases

While some states prohibit plea bargaining in drunk driving cases, Wisconsin does not. If you are facing an OWI or PAC charge and do not have a strong defense available (and do not qualify for diversion), then negotiating a plea bargain could be the best option for minimizing the consequences of your arrest. Before you seek a plea bargain, however, there are several important factors to consider, and you will want to ensure that you are making an informed decision based on the advice of an experienced drunk-driving lawyer.

Diversion Programs in Wisconsin Drunk Driving Cases

One reason why you might not want to negotiate a plea bargain is that your case could qualify for diversion. Entering into a diversion program allows you to avoid a conviction entirely—provided that you complete the program successfully. While Wisconsin’s drunk driving laws allow diversion in most first-time OWI and PAC cases, they also impose stringent requirements for defendants who choose to participate. Even so, participating can still be worth the time and effort involved.

Schedule a Free Consultation with a Drunk Driving Lawyer in Madison, WI

Do you need to know more about Wisconsin’s drunk driving laws? If so, we encourage you to contact us promptly. To schedule a free consultation with a drunk driving lawyer at Mays Law Office in Madison, please call 608-257-0440 or tell us how we can help online today.