What is Wisconsin’s Implied Consent Law

What is Wisconsin’s Implied Consent Law

All drivers in Wisconsin are subject to the state’s “implied consent” law. This law comes into play when the police pull you over on suspicion of driving under the influence (DUI); and if you violate the state’s implied consent law during your traffic stop, this can have serious consequences.

Not only can it have serious consequences in your DUI case, but you can also face charges under Wisconsin’s implied consent law. While Wisconsin’s DUI laws and the implied consent law go hand-in-hand, an implied consent violation is its own stand-alone offense. This means that even if you aren’t guilty of DUI, you can still be found guilty of an implied consent violation. As we discuss below, implied consent violations carry significant penalties—and, again, these penalties apply regardless of whether you are guilty of DUI.

What is Wisconsin’s Implied Consent Law

Wisconsin’s Implied Consent Law: An Overview

The first step toward understanding Wisconsin’s implied consent law is understanding what is meant by “implied consent.” Section 343.305(2) of the Wisconsin Statutes defines this term as follows:

“Any person who . . . operates a motor vehicle upon the public highways of this state. . . 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, controlled substances, . . . or other drugs . . . when requested to do so by a law enforcement officer [] or when required to do so under [Wisconsin’s DUI laws].”

In short, the act of driving on Wisconsin’s public roads acts as your voluntary consent (or implied consent) to a breath, blood, or urine test when the police pull you over on suspicion of DUI. If you refuse to take a breath, blood, or urine test when requested to do so, this can be prosecuted as an implied consent violation. However, there are conditions on your obligation to submit to testing (most often a breath test conducted using a breathalyzer device); and, if the police officer who pulls you over does not satisfy all of these conditions, then you may be within your right to refuse to provide a sample.

For example, Section 343.305(4) of the Wisconsin Statute states that the officer must provide the following information when requesting a breath, blood, or urine test:

  • “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.
  • “If you take all the requested tests, you may choose to take further tests. You may take the alternative test that this law enforcement agency provides free of charge. You also may have a test conducted by a qualified person of your choice at your expense. You, however, will have to make your own arrangements for that test.
  • “If you have a commercial driver’s license or were operating a commercial motor vehicle, other consequences may result from positive test results or from refusing testing, such as being placed out of service or disqualified.”

Wisconsin’s implied consent law includes specific testing requirements as well. These requirements range from specific procedures for breath tests and blood draws to certification requirements for individuals who conduct breath, blood, and urine analyses. Failure to comply with the applicable requirements can render the test results invalid or unreliable—and raising questions about the validity or reliability of a breath, blood, or urine test can be a key defense strategy in many DUI cases.

Consequences of Violating Wisconsin’s Implied Consent Law

As mentioned above, if you violate Wisconsin’s implied consent law by refusing to submit to testing (when the police have met all applicable requirements), you can face significant penalties regardless of whether you are ultimately found guilty of DUI. In Wisconsin, the penalties for implied consent violations can include:

  • Driver’s license suspension (12 months)
  • Mandatory installation of an ignition interlock device (IID)
  • Alcohol assessment and treatment

If sentenced to an IID or alcohol assessment and treatment, you will be required to comply at your expense; and, if you lose your driver’s license, you will have to pay to get your license reinstated when the suspension ends.

Even more importantly, if you unlawfully refuse a breath, blood, or urine test, prosecutors can use your refusal against you in your DUI case. Essentially, they can say that the fact that you refused testing shows that you knew you were too drunk to drive. Of course, this isn’t necessarily the case, and most Wisconsin residents aren’t familiar with the implied consent law’s requirements. This is a fact (among many others) that an experienced defense lawyer may be able to use in your favor. With substantial fines, surcharges, and possibly even jail time on the table, you will need to work with an experienced defense lawyer to fight your DUI (and your implied consent violation) by all means available.

Discuss Your Case with an Experienced DUI Defense Lawyer in Madison, WI

If you are facing the consequences of refusing a breath, blood, or urine test during a DUI stop in Wisconsin, we encourage you to contact us promptly for more information. Call 608-257-0440 or request a free consultation online to speak with an experienced DUI defense lawyer in Madison, WI as soon as possible. 

Success of the Criminal Defense Side in 2022

Success of the Criminal Defense Side in 2022

Reflecting back on 2022, the criminal defense side of Mays Law Office, LLC had some very interesting cases with some spectacular results.  A few highlights from Attorneys Stephen Mays and John Orth warrant mention:

Client N.J. avoided a felony conviction (fourth offense Operating While Intoxicated), which would have sent him to Federal Prison due to him being on Federal Probation at the time.  (New felony conviction = revocation of federal probation).  While driving at a time the State was unable to establish, Client N.J. went off the road and hit a barn on someone’s property.  After the accident, Client N.J. went home and consumed alcohol.  There were witnesses to this after-driving alcohol consumption.  The arresting agency arrived at the scene of the accident approximately five (5) hours after the accident took place.  They concluded that N.J. was the driver, went to his residence, and arrested him for a fourth offense operating while intoxicated (OWI).  Client N.J. originally admitted driving, but no time was established, and he told the police he drank quite a bit after arriving home.  Client N.J. originally retained Mays Law Office, LLC, thinking this was his third offense OWI.  Client N.J. had a blood alcohol content (BAC) level of .074 at the time he was arrested – which made Client N.J. under the legal limit for driving on a 3rd offense (.08).  The State later discovered the existence of a third prior OWI conviction – making this current allegation a 4th Offense, where his legal limit now would be .02.  Attorney Steve Mays was able to convince the State that they could not establish the time of driving, thereby making the BAC test of .074 not legally relevant or admissible in the case as not having been taken within three (3) hours of any time of driving.  Additionally, Attorney Mays also convinced the State that they could not establish that Client N.J. was intoxicated before the accident occurred, rather than having gotten to the .074 level after arriving home following the accident.  In conclusion, the State agreed it could not prove Client N.J. was either intoxicated or had a prohibited alcohol concentration in going off the road and hitting the barn.  Thus, and because Client N.J. had admitted to driving the vehicle which hit the barn, the State agreed to amend the felony fourth offense OWI to a misdemeanor charge of Negligent Operation of a Vehicle off the Highway.  A huge victory for Client N.J. as he avoided the possibility of going to prison and a lifetime driver’s license revocation on the original OWI 4th charge, as well as having his Federal Probation revoked and sent back to Federal Prison for close to three (3) years.

Client B.M. avoided a hefty prison sentence that a sixth offense operating while intoxicated (OWI) carries by the proactiveness and tenacity demonstrated by Attorney John Orth in this case.  Client B.M. was seen in his vehicle by an officer parked at a closed gas station in the early hours of the morning.  The officer ran the registration and determined that it was valid and that the registered owner possessed a valid driver license.  Client B.M. exited the parking lot and the officer continued patrolling the area.  Approximately 20 minutes later, the same officer saw Client B.M. again parked at a different closed gas station.  The officer stated in his narrative report that this was “suspicious in nature” due to recent calls of burglaries and catalytic converter thefts in the area and he therefore initiated a traffic stop of Client B.M.  Attorney Orth took the position that, while perhaps somewhat unusual, there was nothing inherently “suspicious” about Client B.M.’s behavior, nor could any logical connection be made between the observed conduct and burglary or auto parts theft.  However, perhaps realizing that the grounds upon which he had detained Client B.M. were shaky, the officer conveniently added to his report that Client B.M.’s license plate was obstructed by its frame and therefore the stop could be justified based on an equipment violation.  Client B.M., knowing his plate was not obstructed, took a picture of it immediately upon his release on bail and sent it to Mays Law Office.  But as anyone familiar with the justice system will attest, in these situations, nine times out of ten the officer will simply claim, “That’s not how it was the night of the stop”, and nine times out of ten judges will accept this explanation.  Unfortunately, the officer’s squad video was insufficiently clear to establish the condition of the plate.  However, a careful review of a backup officer’s body cam revealed a split-second window of time in which the plate could clearly be seen.  It was not obstructed and was in precisely the condition depicted in Client B.M.’s photograph.  Armed with a screen capture, Attorney Orth was able to definitively disprove the officer’s claim.  In a motion to suppress any evidence obtained as a result of the unlawful stop of Client B.M., Attorney Orth argued that the officer was simply and impermissibly acting on a hunch rather than legitimate reasonable suspicion of criminal activity in violation of Client B.M.’s 4th Amendment right to be free of unreasonable searches and seizures and that the alleged equipment violation was an outright fabrication.  When the time came for the Court to hear the defense’s suppression motion, rather than allowing his officer to be humiliated on the stand, the prosecuting attorney released the officer from his subpoena and directed him to leave, conceded that the stop was unlawful and moved to dismiss the case in its entirety.  Client B.M. walked out of the courthouse vindicated and no longer facing a prison sentence of up to ten (10) years.

Client F.C. needed Mays Law Office’s services when he was charged with a third offense Operating While Intoxicated (OWI).  Attorney Steve Mays had known Client F.C. personally prior to this incident.  When Client F.C. initially called Attorney Mays for help with his legal case, Attorney Mays spoke to him and, at Client F.C.’s request, he also spoke with Client F.C.’s brother, mother and other family members.  This was because Client F.C. was going to be entering an in-patient Alcohol and Other Drug Abuse (AODA) treatment facility.  Client F.C. wanted Attorney Mays to be able to be in contact with his family while he was in the treatment facility.  This ended up being one of the best things, and a big part of the success Client F.C. would end up having in his journey toward sobriety.  Attorney Mays joined forces with the family to be an ever-present source of support for Client F.C.  Throughout the case, Attorney Mays spoke with, or had some contact with, both Client F.C. or his family, at least once a week to stay apprised as to his well-being and status in the treatment facility.  While Client F.C. ultimately chose to accept full responsibility for his actions and plead guilty to the OWI charge, Client F.C. was able to take back control of his life by becoming sober.  He attributes this to his voluntary entry into the Sober Living House and the support of Attorney Mays and Client F.C.’s family unit – both of which continued to support him and his goal of changing his life.  In a recent conversation with Client F.C., he proudly relayed to Mays Law Office that as of that day he was 319 days sober and counting.  He is now dedicated to helping others who struggle with an alcohol addiction by being a sponsor to them and being there for them in their time of need.  Although this is not the classic “win” in the eyes of the law (i.e., we did not suppress evidence or get the ever-so-satisfying two word “Not Guilty” verdict), it was a win for Client F.C., his loved ones and Mays Law Office knowing he has taken charge of the direction he wants his life to go.  We could not be more proud of him and his dedication to a new lifestyle and complete sobriety and his dedication to assist others still struggling with addiction.

These cases are just a sampling of the results Attorneys Steve Mays and John Orth were able to achieve this past year, 2022.  Through constant communication with our clients we have proven to get outstanding results for them.  Steve and John always act with an eye for winning at any level, in any type of case.  No case is too difficult or intimidating for them.  They are not afraid to take on any prosecutor or advocate for their clients to any judge Statewide.  They have, just this past year, appeared in over 40 counties throughout Wisconsin.  And while they are tenacious litigators, they still view each case individually, and personally, and realize that every client who hires them is more than just a client – they are people.  They are always treated with the utmost respect and concern for each of their individual situations.  That’s why Mays Law Office gets the majority of its criminal and OWI clients from personal referrals from past and current clients.  These results are just the tip of the iceberg of the criminal defense/OWI success Mays Law Office, LLC experienced in 2022.  If you are in need of an experienced criminal defense and/or OWI attorney, call Mays Law Office, LLC today at (608) 257-0440.

Know the penalties for Wisconsin drug crimes

Know the penalties for Wisconsin drug crimes

Wisconsin drug possession penalties vary depending on the type of substance, the amount, prior convictions, and other factors. Before facing a court date for this type of charge, you should hire a criminal defense attorney who explains to you all the potential consequences of a conviction.

Learn more about the provisions of Wisconsin’s drug sentencing guidelines.

Types of controlled substances

Similar to federal law, Wisconsin law divides drugs into five schedules depending on their abuse potential and proven medical use. Schedule I substances include PCP, LCD and other hallucinogens, heroin and cannabis. Schedule II drugs include opium, codeine, cocaine, morphine, amphetamines, and methadone. Schedules III, IV, and V substances have less potential for abuse and widely accepted medical use. Examples include ketamine and Rohypnol.

Penalties for possession

Possession of PCP, LSD, methamphetamine, amphetamine, and psilocybin mushrooms carries up to $5,000 in fines and up to a year in jail for the first offense. Subsequent offenses are Class I felonies that result in fines of up to $10,000 and up to 3.5 years in jail. All narcotic drugs in Schedule I or II are also subject to these penalties. Cannabis is an exception that results in a fine of up to $1,000 and six months in jail for the first offense.

Types of possession

Law enforcement in Wisconsin can arrest you for either actual or constructive possession. Actual possession means that you are carrying the substance in your pocket or backpack or otherwise holding it on your person. Constructive possession means that you kept the drugs in your home or vehicle and planned to either distribute or use them.

The circumstances of your case significantly influence the penalties that you may receive. For example, hiring or using a child younger than 17 to manufacture, sell or distribute drugs is a Class H felony that carries up to $10,000 in fines and up to six years in prison. All Wisconsin drug offenders may receive a license suspension for six months to five years.

Eyewitness lineups can lead to wrongful arrests

Eyewitness lineups can lead to wrongful arrests

A Wisconsin man was released from prison after spending 20 years behind bars for a crime he did not commit. Even after 16 alibi witnesses testified to having seen the man with his family close to the time the crime was committed, a jury found him guilty after the victim chose the innocent man out of a photo lineup.

Eyewitness misidentification is a huge issue for people in Wisconsin and throughout the nation. The multitude of factors that affect the accuracy of the ID makes it difficult to believe judges and jurors would convict based off this unreliable form of identification. Yet thousands of people are sent to prison based on eyewitness identifications alone. The Innocence Project has helped to exonerate more than 360 people, after extensive testing of DNA evidence showed they were actually innocent of committing a crime. Eyewitness misidentification was involved in at least 71% of these cases. Why is this identification method so unreliable?

Environmental factors at the scene of the crime can influence a witness’s ability to choose the perpetrator from a lineup. These include the following:

  • The amount of light present at the crime scene when the incident occurred
  • The distance the witness was standing from the actual incident
  • The amount of time that has lapsed from when the incident took place
  • Whether the perpetrator used any disguises
  • Whether the perpetrator’s race is different than the witness
  • Whether a weapon was used during the crime

It is essential that the lineup administrator does not know about the crime so he or she does not lead the witness in any way. Furthermore, the lineup should have more than one filler who matches the suspect’s description. Witnesses should never feel pressured to make a selection, and told that the suspect may not be present in the lineup at all. Finally, officers should tape the entire procedure so the judge and/or jurors have access to the process. If you or your someone beloved facing such type issues then contact our Madison, WI criminal defense attorney at Mays Law Office, LLC

What is a hung jury?

What is a hung jury?

As a criminal defense lawyer in Madison, Wisconsin, I want to inform you that, If you face criminal charges, you will have the option of selecting a jury trial. A group of your peers will then be the ones to decide your fate. To render a decision, the jury must reach an agreement. In some situations, every jury must agree to the same decision, and if they fail to do so, it may result in a hung jury.

The Fully Informed Jury Association explains a hung jury is the same as a deadlocked jury wherein they cannot come to an agreement to render a decision. If a jury comes into the court and declares it cannot make a ruling in the case, the judge may require them to try again to see if they can overcome the issues and make a decision.


If the jury cannot reach a decision according to the rules of the court, then the judge will declare a mistrial. This does not mean that you are free or that you are not guilty. It means that the prosecution will have to retry the case. Most of the time, the prosecutor will do so, and you will have to go through another trial.


You will likely face another trial, which can be a good thing because your defense team already knows what will happen. The prosecutor will have a more difficult time surprising your defense team with witnesses or other evidence. This enables your team to adjust its case and possibly make changes to strengthen it. For many people, having a hung jury is a blessing because it is a do-over where they can go through the trial again knowing what worked and did not work before.

Do I need to tell an employer about my criminal record?

Do I need to tell an employer about my criminal record?

Whether you have spent time in jail, completed a probation sentence or experienced some other consequences related to a criminal conviction, when the time comes for you to find a new job, you may feel like you are experiencing yet another penalty.

Background checks may well expose your criminal past to a potential employer. However, as a criminal defense lawyer, I want to tell you that, Glassdoor indicates that you do not need to let that stop you from getting a job that helps you move forward positively.

Choosing when to disclose a criminal history

Telling a potential employer that you have been arrested for or convicted of a criminal charge does not need to be done at the outset of your job search. Your application should focus on your qualifications for the job. These qualifications may include past work experience and any relevant education or training. An interview may also highlight these areas so the employer can best assess your fit for the role in a clear manner.

When you reach the stage in the hiring process where a background check may be requested, that may be the appropriate time to share your experiences with the company.

Choosing what to say about your criminal history

When telling a potential employer about a criminal experience, your conversation should provide minimal details about the event and instead direct the focus to how you may have changed or what you learned from the situation.

This information is not intended to provide legal advice but is instead meant to give people in Wisconsin some ideas about when and how to talk about a criminal record with a potential employer when applying for a new job.