DUI Defense Archives - Mays Law Office

10 Mistakes to Avoid After a DUI Arrest in Wisconsin

by Mays Law Office | Feb 1, 2023 | DUI Defense

When you are facing a DUI charge in Wisconsin, mistakes can be costly. Some mistakes can lead to unnecessary penalties, and others can result in a guilty verdict when you are entitled to walk free. As a result, you need to be very careful, and you need to know what not to do while your case is pending.

What are the mistakes you need to avoid after getting arrested for driving under the influence (DUI) in Wisconsin? Here are 10 things you should not do in order to give yourself the best chance of asserting a successful defense:

Mistake #1: Assume You Will Be Found Guilty

No matter what happened, you should never assume that you will be found guilty of DUI. Even if you were driving drunk, you could still have several defenses available. Prosecutors might not have the evidence they need to prove your guilt beyond a reasonable doubt; or, even if they have the evidence they need, it might not be admissible in court. If prosecutors can’t use their evidence against you, it doesn’t matter if you were drunk behind the wheel—the law says that you are entitled to walk free.

Mistake #2: Assume You Will Be Able to Talk Your Way Out of a Conviction

While you should not assume that you will be found guilty, you also should not assume that you will be able to talk your way out of a conviction. Facing a DUI charge is a serious matter. It is the prosecutor’s job to convict you, and it is the judge’s job to impose a sentence in accordance with Wisconsin law. If your plan is to walk into court and then walk out a free person, your case is not going to go how you want it to go.

Mistake #3: Ignore Relevant Facts

In a DUI case, all of the facts surrounding your arrest could be relevant to your defense. This includes not only what you were doing before the police stopped you, but what happened during (and even after) your DUI stop as well. With this in mind, when you are preparing to meet with a defense lawyer, it is a good idea to take detailed notes. Write down everything you remember from the night in question—from where the police started following you to what the arresting officer said to you on the side of the road.

Mistake #4: Focus on Facts that Aren’t Relevant

While you need to avoid ignoring relevant facts, you also need to avoid focusing on facts that aren’t relevant to your defense. For example, if your Uber didn’t show up or your designated driver left without you, this does not justify driving under the influence. Likewise, even if you didn’t think you were too drunk to drive, if you were too drunk to drive, it doesn’t matter that you made an honest mistake.

Mistake #5: Get Another DUI

When you are awaiting trial on a DUI charge in Wisconsin, it is very important that you do not get arrested for DUI again. You want to be able to show the judge that you made a one-time mistake, and that you are remorseful about what happened. If you get another DUI, this could make it much more difficult to assert a successful defense—and it will also increase the penalties you are facing in your second DUI case.

Mistake #6: Get Stopped or Arrested for Anything Else

Just as you need to avoid getting another DUI, you also need to avoid getting stopped or arrested for anything else. When you have a DUI charge pending, any type of interaction with law enforcement can increase the risks involved. To protect yourself, avoid alcohol and drugs, carefully follow Wisconsin’s traffic laws, and avoid spending time with anyone who might get you into trouble.

Mistake #7: Overlook Potential Defenses

In addition to making sure you consider all of the facts that are relevant to your DUI case, you also need to make sure you consider all of the defenses you have available. There are a variety of potential defenses to DUI charges in Wisconsin—including defenses you can assert regardless of your BAC (or any other evidence of impairment). If you overlook defenses that you have available, you could end up getting convicted even though you are entitled to an acquittal.

Mistake #8: Ignore Options for Favorably Resolving Your DUI Case

Along with asserting defenses that can protect you against a conviction in court, you may also have other options for favorably resolving your DUI case in Wisconsin. This is true even if you were driving drunk. For example, an experienced defense lawyer may be able to help you secure a plea deal that minimizes the consequences of your DUI arrest, or you may qualify for a diversion program that allows you to avoid trial.

Mistake #9: Miss a Court Date

Regardless of the options you have available, you can lose these options if you disrespect the judicial process. This includes missing a court date. When you are facing a DUI charge, you need to make plans to be in court on time, and you should plan to be there with your defense lawyer.

Mistake #10: Try to Handle Your DUI Case on Your Own

This brings us to our last mistake: trying to handle your DUI case on your own. Due to the challenges and risks involved, you need to have an experienced defense lawyer on your side. An experienced defense lawyer can help with all aspects of your case, and hiring a defense lawyer to protect you can be the least expensive way to handle your DUI.

Discuss Your Case with a DUI Defense Lawyer in Middleton for Free

Are you facing a DUI charge in Wisconsin? If so, we can help, but it is important that you contact us right away. To get started with a free and confidential consultation, call 608-257-0440 or tell us how we can reach you online now.

12 Common Issues with Field Sobriety Tests Wisconsin

by Mays Law Office | Jan 1, 2022 | DUI Defense

There are two important facts you need to know about taking the field sobriety tests (FSTs) in Wisconsin. First, taking the FSTs is not mandatory. You have the right to refuse the field sobriety tests during your DUI stop, and prosecutors cannot secure a conviction based on the fact that you chose not to voluntarily submit to the FSTs.

Second, if you take the field sobriety tests, your test results will only be used against you. Prosecutors will use your “failure” as evidence of guilt; and, if you do not dispute this evidence successfully, your decision to take the FSTs could lead to a conviction at trial.

Ways a Madison DUI Lawyer May Be Able to Challenge Your Field Sobriety Test Results

But, while failing the field sobriety tests can have severe negative repercussions, it is possible to challenge poor performance on the FSTs in many cases. Here are 12 examples of ways a Madison DUI lawyer may be able to challenge your field sobriety test results in court:

1. Failure to Provide Adequate Instructions

Before administering the field sobriety tests, the police must provide adequate instructions in the language you can understand. If your arresting officer failed to provide you with appropriate instructions, this means that you had virtually no way of passing the FSTs.

2. Failure to Administer the Standardized Tests

There are three “standardized” field sobriety tests that police in Wisconsin are supposed to use: (i) the walk-and-turn test, (ii) the one-leg stand test, and (iii) the horizontal gaze nystagmus test. If your arresting officer administered any other type of test (i.e. asking you to outstretch your arm then put your finger to your nose), your performance on this test shouldn’t be used against you.

The police are supposed to use the standardized FSTs because these tests have proven to be the most reliable (when they are administered appropriately). However, studies have shown that even these tests only provide an accurate assessment of a driver’s impairment level around 80% to 90% of the time.

3. Improper Administration of the Standardized Tests

When administering the standardized field sobriety tests, the police must follow a rigid set of protocols. If they don’t (or if prosecutors cannot prove that they did), this can entitle a driver to have his or her FST results kept out of court.

4. Uneven or Unstable Ground

The standardized field sobriety tests are designed to be performed on flat ground with no hazards or obstructions. If the police had you perform the field sobriety tests on a sloped shoulder, if the ground was muddy or slick, or if there were rocks or debris on the ground, these are all factors that could invalidate the results of your FSTs.

5. Poor Weather or Lighting Conditions

The standardized field sobriety tests are also designed to be performed in good weather and lighting conditions. If it was raining or snowing when you got pulled over, or if it was dark or dimly lit, these factors could have negatively impacted your performance on the FSTs. Puddles, ice or snow on the ground, and being blinded by passing cars’ headlights are also common factors that can cause failure regardless of a driver’s level of intoxication.

6. Testing Your Physical Agility

While the field sobriety tests are intended to test a driver’s level of intoxication, what they often test is a driver’s physical agility. Even when they are not under the influence of alcohol, many people struggle to stand on one leg for an extended period of time or walk heel-to-toe without losing their balance. If you lacked the physical agility required to pass the field sobriety tests, then your test results in no way suggest that you are guilty of DUI.

7. Testing Your Ability to Follow Instructions

Many people fail the standardized field sobriety tests because they have difficulty following the arresting officer’s instructions. If you were unable to follow along, this does not necessarily mean that you were drunk. It could simply mean that you had trouble remembering everything the officer told you or that you misinterpreted the instructions in some way.

8. Testing Your Ability to Focus Under Stress

There is no denying that getting pulled over is stressful. It gets even more stressful when the officer asks if you have been drinking and then asks you to step out of the car. If you, like many people, find it difficult to focus when you are under stress, you could very easily fail the FSTs even if you are completely sober.

9. No Quantitative Scoring System

Unlike the breathalyzer, which measures your blood alcohol concentration (BAC), the field sobriety tests do not have a quantitative scoring system. Instead, your “failure” is based on the arresting officer’s subjective interpretation of your performance. Even if you make one minor mistake during one field sobriety test, this can be enough for an officer to arrest you for being drunk behind the wheel.

10. Improper Interpretation of Your Performance

It is not at all uncommon for the police to misinterpret drivers’ performance on the field sobriety tests. From failing to observe the entire test to not having a clear understanding of a test’s parameters, there are a variety of issues that can lead to an improper interpretation of a driver’s performance.

11. No Second Chance

Typically, once you make a mistake on a field sobriety test, that’s it. You don’t get a second chance. Even if you are fully capable of passing the tests, you won’t get the opportunity to do so.

12. Alternate Explanations for a “Failed” Test

From physical injuries to unstable shoes, and from health conditions to baggy clothes, there are numerous issues that can explain a “failed” field sobriety test. If there is any alternate explanation for your failure, an experienced Madison DUI lawyer should be able to use this to help protect you.

Discuss Your Case with a Madison DUI Lawyer in Confidence

Did you fail the field sobriety tests during your DUI stop in Madison? If so, we encourage you to contact us promptly for more information. While it may be possible to challenge your FST results, it may be necessary to assert other defenses as well. To discuss your case with an experienced Madison DUI lawyer in confidence, call 608-257-0440 or tell us how we can reach you online now.

Here’s What You Need to Know if You Get a DUI in Wisconsin During the Holidays

by Mays Law Office | Dec 1, 2021 | DUI Defense

Police departments in Wisconsin ramp up their DUI enforcement efforts during the holiday season. This is traditionally a time when more people drink and drive, and the night before Thanksgiving (often referred to as “Blackout Wednesday” and “Drinksgiving”) and New Year’s Eve are among the most dangerous nights of the year to drive.

If you get a DUI in Wisconsin during the holidays, you need to make smart decisions and be very careful to avoid unnecessary consequences. Here are ten important facts you need to know about facing a DUI charge in Wisconsin:

1. You Should Not Try to Handle Your Situation on Your Own

Facing a DUI charge is a challenging and high-risk situation—and it is not a situation you should try to handle on your own. Mistakes can be incredibly costly, and you could very easily get convicted even if you have defenses available. Rather than risking your finances, your reputation, your job, and even your freedom if you caused an accident or are a repeat offender, you should seek help from an experienced Madison DUI defense lawyer.

2. You Aren’t Guilty Until You Plead Guilty or Get Proven Guilty in Court

While defending against a DUI charge in Wisconsin is not easy, it is important to keep in mind that the government has the burden of proof. This means that you aren’t guilty until either: (i) you plead guilty or (ii) you are found guilty in court. If the government’s attorneys cannot prove that you were driving under the influence (or “operating while intoxicated”), then you cannot be convicted.

3. There are Several Defenses to a Wisconsin DUI Charge

There are several potential ways to defend against a Wisconsin DUI charge. One option is to argue that the government cannot meet its burden of proof. If the judge or jury is not convinced that the government has met its burden, the judge or jury cannot render a verdict in the government’s favor.

Other options for fighting your DUI charge include asserting defenses such as:

Challenging your field sobriety test results
Challenging your breathalyzer test result
The “rising BAC” defense
Providing an alternate explanation for your appearance or driving behavior
Asserting your right to remain silent

4. Even if You Were Driving Drunk, You Could Have Defenses Available

While defending against a DUI charge may involve challenging the government’s evidence that you were drunk, there are also defenses that you may be able to assert even if you were drunk behind the wheel. For example, suppose the police did not have “reasonable suspicion” to pull you over or “probable cause” to arrest you. In that case, all of the government’s evidence against you may be inadmissible in court.

5. Defending Against a Wisconsin DUI Charge is Not Easy

To reiterate, while there are several potential defenses to a Wisconsin DUI charge, defending against a DUI charge is not easy. You need to know which defenses to assert, and you need to know how to assert them effectively. It would help if you were careful to avoid miscues throughout your case. As a result, it is extremely important to have an experienced Madison DUI defense lawyer on your side.

6. The Penalties for a DUI Conviction are Significant

A first-time DUI conviction carries hundreds of dollars in fines and fees in Wisconsin and a six or nine-month driver’s license suspension. If your blood alcohol concentration (BAC) were 0.15% or above, you would also be subject to mandatory installation of an ignition interlock device or participation in a 24/7 sobriety program for 12 months. If you are being charged as a repeat offender, you may be facing enhanced penalties.

7. A DUI Conviction Can Impact Your Life in Many Ways

In addition to statutory penalties, a DUI conviction can have a variety of other consequences. Your insurance rates will go up, you may find it difficult to land a job (or you may lose your current job), and you may face various other practical impacts as well. Over time, the total costs of a DUI conviction can easily climb into the thousands – or even tens of thousands – of dollars.

8. You Should Not Make Any Assumptions about Your DUI Case

Given what you have at stake and the defenses you may have available, you should not make any assumptions about your DUI case. You need to make sound decisions based on strategic legal advice, and you need to focus on doing everything you can to avoid a conviction if at all possible.

9. You May Be Eligible to Participate in a Diversion Program

Depending on the circumstances of your Wisconsin DUI case, you may be eligible to participate in one of the state’s diversion programs. If you are able to participate in (and successfully complete) one of these programs, you can avoid having a DUI conviction on your record. While completing a diversion program requires effort, the effort will be well worth it if it helps keep your record clean.

10. You Won’t Get a Free Pass Because It’s the Holiday Season

Finally, you cannot expect a free pass because it is the holiday season. Prosecutors and judges take DUI cases very seriously, and they will not simply let you walk away. While you might be tempted to ignore your situation until the holidays are over, this is a mistake you cannot afford to make. You need to take several steps to protect yourself, and this starts with talking to a lawyer about your case right away.

Get a Free Consultation with a Madison DUI Defense Lawyer 24/7

Did you get a DUI in Wisconsin during the holiday season? We can help, but you must contact us promptly. To schedule a free and confidential consultation with a Madison DUI defense lawyer as soon as possible, call 608-257-0440 or tell us how we can reach you online now.

Can You Beat a Drunk Driving (DUI or OWI) Case in Wisconsin?

by Mays Law Office | Oct 1, 2021 | DUI Defense

You got arrested for drunk driving. You are facing a DUI charge (technically, an operating while intoxicated (OWI) charge in Wisconsin), and you are facing all of the various penalties that go along with it. So, you need to know: Can you beat a Wisconsin drunk driving case? Or, is it time to accept the consequences of your arrest?

There are several potential ways to beat a drunk driving case in Wisconsin. As a result, under no circumstances should you throw in the towel. Even if you were driving drunk, you may have defenses available. Additionally, even if you cannot avoid a conviction entirely, fighting your DUI charge could result in a reduced sentence—and this could significantly mitigate the costs and other consequences you incur.

10 Potential Ways to Fight a Wisconsin DUI or OWI Charge

Every drunk driving case is unique, and the defenses that are available to someone else might not be available to you. On the same token, you may be able to assert defenses that were not available to someone you know who got convicted of DUI.

To find out what defenses you can use to fight your DUI, you will need to discuss the details of your case with an attorney. With this in mind, here are 10 potential ways to fight a drunk driving charge in Wisconsin:

1. Challenging Your Traffic Stop

The police cannot pull you over just because they want to. In order to conduct a traffic stop, the police must have “reasonable suspicion” to believe that the driver (or a passenger) is engaged in (or has been engaged in) unlawful activity. If the police pulled you over without reasonable suspicion—including if they pulled you over based on your race, color, or ethnicity—then you may be entitled to have all of the government’s evidence excluded from your drunk driving case. Without evidence, the prosecution won’t be able to secure a conviction.

2. Challenging Your Arrest

In addition to challenging your traffic stop, it may also be possible to challenge your arrest. While a traffic stop requires reasonable suspicion, an arrest requires “probable cause.” If the police did not have reason to believe that you were driving drunk but arrested you anyway, this could also provide grounds for having the government’s evidence excluded from your case.

3. Challenging Your Field Sobriety Test Results

If you took the field sobriety tests (FSTs) during your drunk driving stop, the prosecution will almost certainly try to use your test results against you. However, it is possible to challenge field sobriety test results in various ways. Did the arresting officer carefully observe the entire test? Was the ground uneven or unsteady? Was the area where you performed the tests dimly lit? These are just a few examples of numerous potential issues that could call your FST results into question.

4. Challenging Your Breathalyzer Test Result

Just as there are several possible ways to challenge FST results, there are several possible ways to challenge breathalyzer test results as well. Did the arresting officer provide all required information before administering the test? When was the last time the breathalyzer device was calibrated? Do you have a health or medical condition that could have impacted your blood alcohol concentration (BAC) reading? Again, these are just a few examples of numerous potential issues your lawyer may be able to raise in order to fight your DUI.

5. Asserting the “Rising BAC” Defense

When you consume alcohol, your BAC does not rise immediately. Rather, it rises gradually over time. Thus, if you drove shortly after drinking, it is possible that your BAC was below the legal limit when you were behind the wheel even though you registered 0.08% or above on the breathalyzer. This is known as the “rising BAC” defense, and it will prove effective for preventing the prosecution from meeting its burden of proof in many drunk driving cases.

6. Providing an Alternate Explanation for Your Appearance

In addition to FST and breathalyzer test results, police officers may consider various other factors when deciding whether to make a drunk driving arrest. This includes factors related to your appearance. However, while bloodshot eyes, a flushed face, and other appearances can be indicative of alcohol intoxication, they can have a variety of other explanations as well.

7. Providing an Alternate Explanation for Your Driving Behavior

Likewise, while drifting from your lane or slowing down unexpectedly can be signs of impairment, they can also have a variety of other explanations. Did you see something on the road? Was your mind wandering? Did your passenger interfere with your driving? Here too, there are multiple potential explanations besides being drunk behind the wheel.

8. Asserting Your Right to Remain Silent

One of the best ways to protect yourself after a drunk driving arrest is to assert your right to remain silent. It is true that anything you say can be used against you (although there are some exceptions), so staying silent will limit the prosecution’s options for securing a conviction.

9. Asserting Your Right to an Attorney

When you get arrested for drunk driving in Wisconsin, it is extremely important to assert your right to an attorney. Hiring an experienced attorney will give you the best chance to beat your DUI, and you should schedule a free consultation as soon as possible.

10. Raising Questions about the Prosecution’s Case

Finally, regardless of the circumstances involved in your case, the prosecution has the burden of proving your guilt beyond a reasonable doubt. If you can raise questions about the prosecution’s case (i.e. by questioning the validity of your BAC reading), this alone can be enough to avoid a finding of guilt.

Get a Free Consultation about Your Wisconsin Drunk Driving Case

Have you been arrested for drunk driving? If so, Madison DUI attorney Stephen Mays can help. To find out if you may be able to beat your Wisconsin drunk driving case, call 608-257-0440 or request a free consultation online now.

What Does it Take to Prove a DUI Charge in Wisconsin?

by Mays Law Office | Sep 1, 2021 | DUI Defense

Driving under the influence (DUI) is a crime under Wisconsin law. It carries steep penalties, and having a DUI conviction on your record can impact many aspects of your life.

But, if you are facing a DUI charge, this does not necessarily mean that you will be convicted. Prosecutors must prove that you are guilty—and they must do so “beyond a reasonable doubt.”

So, what does it take to prove a DUI charge in Wisconsin?

Understanding the “Elements” of a Wisconsin DUI

The crime of driving under the influence (technically, operating under the influence, or OUI, in Wisconsin) is defined in Section 346.63(1) of the Wisconsin statutes. This section of the law states:

“No person may drive or operate a motor vehicle while: (a) Under the influence of an intoxicant [or] controlled substance . . . to a degree which renders him or her incapable of safely driving . . . ; or (b) The person has a prohibited alcohol concentration.”

To see what prosecutors need to prove in order to secure a DUI conviction, we need to break Section 346.63(1) down into its “elements.” In Wisconsin, these are the elements of a DUI charge:

You were driving or operating a motor vehicle; and,
You either (a) were under the influence to a degree that renders you incapable of safely driving, or (b) had a “prohibited alcohol concentration.”

1. Driving or Operating a Motor Vehicle

Under Wisconsin law, you don’t actually have to be driving in order to be convicted of DUI. Wisconsin law allows prosecutors to pursue charges in cases in which someone is “driving” or “operating a motor vehicle.” So, what’s the difference?

Section 346.63(3)(a) of the Wisconsin Statutes defines “driving” as follows:

“‘Drive’ means the exercise of physical control over the speed and direction of a motor vehicle while it is in motion.”

Section 346.63(b) of the Wisconsin Statutes defines “operating” as follows:

“’ Operate’ means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.”

Basically, “driving” means what you think it means. If you are going somewhere in your car, truck or SUV and you are behind the wheel, then you are driving for purposes of Wisconsin’s DUI law.

However, you can also face a DUI charge for “operating” a motor vehicle. Using any of the controls of a motor vehicle constitutes operating for purposes of Wisconsin’s DUI statute. This includes putting the key in the ignition (or pushing the button on your dashboard or key fob). It also includes releasing the handbrake, shifting out of park, or even turning the wheel from the passenger seat. Thus, not only is it possible to get a DUI if you are parked, but it is also possible to get a DUI as a passenger.

The last definition we need to examine is the definition of a “motor vehicle.” This definition appears in Section 340.01(35). A motor vehicle includes any “device in, upon, or by which any person or property is or may be transported or drawn upon a highway” that is “self-propelled.” This includes pretty much anything you could possibly think of as a vehicle, although electric bicycles are specifically excluded.

2. Driving Under the Influence or With a “Prohibited Alcohol Concentration”

So, let’s assume you were driving or operating a motor vehicle. The next question is whether you were legally impaired. Wisconsin law gives prosecutors two ways to prove impairment—they can present evidence to show that you were “incapable of safely driving,” or they can present evidence of your “prohibited alcohol concentration.”

Driving Under the Influence To a Degree That Renders You Incapable of Safely Driving

In Wisconsin, prosecutors do not need to prove that your blood alcohol concentration (BAC) was above the legal limit to secure a conviction. While this is an option, it is not the only option prosecutors have available. Thus, while disputing the reliability of your BAC reading can be an effective defense strategy in some cases, it is important not to assume that you will be found not guilty if your breath or blood test result is unreliable.

Besides your BAC, there are a number of ways prosecutors may seek to prove that you were legally impaired. Some examples include:

The arresting officer’s testimony regarding your driving behavior
The arresting officer’s testimony regarding your speech, physical appearance, or unsteadiness
The arresting officer’s testimony regarding your performance on the field sobriety tests (FSTs)
Body camera or dash camera footage
Your statements during your traffic stop or after your arrest

Driving with a “Prohibited Alcohol Concentration”

Regardless of whether you were “incapable of safely driving,” prosecutors in Wisconsin can also secure a DUI conviction by proving that your BAC was over the legal limit. The Wisconsin Statutes refer to this as “prohibited alcohol concentration,” because different BAC limits apply under different scenarios. For example:

In most cases, adults over the age of 21 cannot drive with a BAC of 0.08% or above.
Adults over the age of 21 who have three or more prior DUI convictions cannot drive with a BAC of 0.02% or above.
Adults over the age of 21 who have previously refused a breath test or who have previously received a DUI with a BAC of 0.15% or above cannot drive with a BAC of 0.02% or above.

Even if you took a breath test and blew over the legal limit, it may still be possible to fight your DUI. There are several potential ways to challenge a BAC reading—and there are several other potential defenses to Wisconsin DUI charges as well. The key is to build a defense based on the particular facts of your case, and hiring an experienced defense lawyer will give you the best possible chance to avoid life-altering consequences.

Get a Free Wisconsin DUI Defense Consultation

Are you facing a DUI charge in Wisconsin? If so, we can help. To speak with an experienced Madison DUI lawyer in confidence, call 608-257-0440 or request a free consultation online now.

What Happens if You Refuse a Breathalyzer Test in Wisconsin?

by Mays Law Office | Jul 1, 2021 | DUI Defense

When the police pull you over and ask if you’ve been drinking, you need to make a lot of very important decisions in a very short period of time. One of these decisions is whether to take the breathalyzer test.

Wisconsin, like all other states, has an “implied consent” law. Under this law, you give your consent for the police to take a breath, blood, or urine sample when you get pulled over on suspicion of DUI. Typically, the police ask suspects to take a breath test, as this test can be performed quickly on the side of the road using a breathalyzer device.

Criminal Penalties for Violating Wisconsin’s Implied Consent Law

Just like any other law, you can break Wisconsin’s implied consent law. In other words, you can refuse to take a breathalyzer test during a DUI stop. However, just as there are consequences when you break any other law, there are consequences for breaking Wisconsin’s implied consent law as well.

These consequences can be substantial.

For a first-time offense, violating Wisconsin’s implied consent law carries the following penalties: (i) loss of your driver’s license for one year, (ii) mandatory installation of an ignition interlock device (IID) for one year; and, (iii) a 30-day waiting period before you can apply for an occupational license (a limited driver’s license that allows you to drive back and forth to your job). If you have a child under the age of 16 in your vehicle, these penalties double.

If you have a prior conviction on your record, you will face enhanced penalties as a repeat offender.

Crucially, you can be convicted of an implied consent violation and face penalties for refusing a breath test even if you were not driving under the influence. If the police lawfully stopped you and requested that you take the breathalyzer in accordance with Wisconsin’s implied consent law, you were required to comply. It doesn’t matter if you weren’t actually drunk behind the wheel.

Inference of Guilt for Refusing a Breathalyzer Test in Wisconsin

In addition to facing penalties under Wisconsin’s implied consent law, you can also face what is known as a “negative inference” in your DUI case. Basically, this means that prosecutors will be able to use your refusal of the breathalyzer test as evidence against you.

Does this mean that you stand no chance of avoiding a DUI conviction? Absolutely not. While prosecutors will assert that you refused to take a breath test because you knew you were drunk, your attorney can argue that this wasn’t actually the case. Maybe you weren’t aware of the implications of Wisconsin’s implied consent law. Or, maybe you refused the test because you didn’t want to risk a “false positive.” Or, maybe you were concerned about taking the test for other reasons. Whatever the case may be, a skilled attorney will be able to argue that the factfinder (i.e. the judge or jury) shouldn’t use your refusal against you.

How To Defend Against an Implied Consent Violation in Wisconsin

In order to protect your driver’s license and avoid installing an IID device in your vehicle (at your expense) as the result of refusing a breathalyzer test during a DUI stop, you must request a hearing within 10 days. You will want to have an attorney represent you at this hearing, as you need to present a sound defense strategy, and you need to do everything you can to avoid losing your driver’s license for a year (or longer if you are being charged as a repeat offender).

Some examples of potential defenses to implied consent violations in Wisconsin include:

Your DUI Stop was Unlawful – The police cannot stop you for any reason. In order to conduct a traffic stop, the police must have “reasonable suspicion” that you have committed or are in the process of committing a crime. If your traffic stop was unlawful (i.e. because the police racially profiled you), this could provide a justification for your breath test refusal.
The Officer Did Not Have Reason to Believe that You Were Driving Drunk – In order to validly request a breath test before arresting you, the arresting officer must “detect[] any presence of alcohol” on your person or have other “reason to believe” that you were driving drunk. If the arresting officer did not detect the presence of alcohol or have other reason to believe you were driving drunk, this may provide you with a defense.
The Officer Failed to Provide All Required Information – Prior to administering a breath test, an officer conducting a DUI stop must read the statement required under Section 343.305(4) of the Wisconsin Statutes. If the officer fails to provide any of the information required under Section 343.305(4), this may provide you with a defense as well.

These are not the only potential defenses to a breath test refusal in Wisconsin. An experienced DUI attorney will be able to thoroughly evaluate the circumstances of your case and identify all of the defenses you have available.

What to Do if You Refused a Breath Test During a DUI Stop in Wisconsin

Given the potential for severe consequences and the requirement to request a hearing within 10 days, what should you do if you refused a breath test during a DUI stop in Wisconsin?

At this point, you need to discuss your situation with an attorney. In addition to determining what defenses you have available, an experienced attorney can request a hearing on your behalf, begin building your defense strategy immediately, and begin working on your DUI defense. Don’t forget, fighting your refusal charge is just the first part of the process. You also need to fight your DUI—as DUI convictions carry substantial penalties in Wisconsin as well.

Schedule a Free Consultation with a Middleton, WI DUI Defense Attorney

Did you refuse a breath test during your DUI stop? If so, it is strongly in your best interests to speak with an attorney promptly. To schedule a free consultation with a Middleton DUI defense attorney at Mays Law Office, call 608-257-0440 or tell us how we can reach you online now.

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