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.

What are the DUI penalties in Wisconsin?

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

In Wisconsin, driving under the influence (DUI) is a serious criminal offense. Technically referred to as operating while intoxicated (OWI) in Wisconsin, a drunk driving charge carries severe penalties, with the specific penalties that are on the table being determined based upon the defendant’s criminal history and other factors. If you are facing a DUI (or OWI) charge in Wisconsin, it is important that you know what is at risk. Here is an overview of the DUI penalties in Wisconsin, followed by a brief discussion of the “collateral consequences” of a DUI conviction:

Overview of Wisconsin’s DUI Penalties

Wisconsin law imposes different penalties for first-time and repeat DUI offenders. In fact, the penalties for repeat offenders increase all the way up through a tenth offense. Here is an overview of the statutory penalties that apply in “standard” DUI cases (those that do not involve an accident or other aggravating factors) for first, second, and third-time offenders:

First-Time DUI Offenders

If this is your first time being charged with a DUI, you are facing financial penalties and a driver’s license suspension. If your blood alcohol concentration (BAC) was 0.15 or above, you may also be required to install an ignition interlock device (IID) in your vehicle or participate in a 24/7 sobriety program. The penalties for a first-time DUI offense in Wisconsin are:

$150 to $300 in fines
$435 OWI surcharge
Six to nine month driver’s license suspension
IID installation or 24/7 sobriety program for 12 months (if your BAC was 0.15 or above)

Second-Time DUI Offenders

If this is your second time being charged with a DUI, the penalties you are facing depend on whether (i) you received your prior DUI conviction within the past 10 years, and (ii) your prior conviction involved great bodily harm or death. If your prior DUI conviction is more than 10 years old and did not involve great bodily harm or death, the penalties you are facing include:

$150 to $300 in fines
$435 OWI surcharge
Six to nine month driver’s license suspension
IID installation or 24/7 sobriety program for 12 months (if your BAC was 0.15 or above)

If your prior DUI is less than 10 years old or involved great bodily harm or death, the penalties you are facing include:

$350 to $1,100 in fines
$435 OWI surcharge
Five days to six months in jail
12 to 18 month driver’s license suspension
IID installation or 24/7 sobriety program for 12 to 18 months

Third-Time DUI Offenders

Once you get to a third-time DUI offense in Wisconsin, the penalties begin to increase dramatically. For a third offense (regardless of the specifics of your prior convictions), you will face penalties including:

$600 to $2,000 in fines
$435 OWI surcharge
45 days to one year in jail
24 to 36 month driver’s license suspension
IID installation or 24/7 sobriety program for 12 to 36 months

Certain factors can increase the penalties that are on the table. For example, if you were arrested for DUI with a minor in your vehicle, or if you caused an accident resulting in injury or death, you could be at risk for penalties including:

Minor Passenger Under Age 16 – For a first-time offense, a DUI with a minor passenger carries up to a $1,100 fine, five days to six months in jail, driver’s license suspension of six to nine months, and 12 to 18 months of IID use or 24/7 sobriety program participation (penalties increase for repeat offenders).
Accident Resulting in Injury – With no prior offense or breath test refusal, causing an accident while driving under the influence carries up to a $2,000 fine, 30 days to 12 months in jail, driver’s license suspension of 12 to 24 months, and up to 24 months of IID use or 24/7 sobriety program participation. With a prior offense or breath test refusal, the penalties increase to a $10,000 fine, up to six years in prison, driver’s license suspension of 12 to 24 months, and up to 24 months of IID use or 24/7 sobriety program participation.
Accident Resulting in Great Bodily Harm – If you cause an accident that results in great bodily harm while driving under the influence, you can face up to a $25,000 fine and 12.5 years in prison, plus a 24-month driver’s license suspension and 24 months of IID use or 24/7 sobriety program participation after your release.
Accident Resulting in Death – Causing an accident while driving under the influence is prosecuted as the crime of “homicide while OWI” in Wisconsin. If convicted, you can face up to a $100,000 fine and 25 years in prison (increased to 40 years if you have a prior DUI conviction), plus a five-year driver’s license suspension and five years of IID use or 24/7 sobriety program participation after your release.

Understanding the Collateral Consequences of a DUI Conviction

In addition to the penalties imposed by the Wisconsin Statutes, individuals who are convicted of DUI (or OWI) in Wisconsin can face various collateral consequences as well. These are consequences outside of your sentence that can impact virtually all aspects of your life. For example, having a DUI conviction on your criminal record in Wisconsin can lead to:

Suspension or expulsion from school (or difficulty getting into college)
Loss of your current job
Difficulty finding a job (since many companies are hesitant to hire individuals with criminal records)
Difficulty finding housing (since many landlords and lenders conduct criminal background checks as well)
Increased car insurance rates
Professional discipline or loss of your professional license
Challenges related to child custody, eligibility for government assistance, immigration status, and other issues

Schedule a Free Consultation with a Wisconsin DUI Defense Lawyer

Are you facing a DUI (or OWI) charge in Wisconsin? If so, you must speak with a Middleton DUI lawyer about your case. To learn about the defenses you may be able to use to fight your DUI, call Mays Law Office at 608-257-0440 or request a free consultation online today.