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.