Refusal to Take Breathalyzer Laws in Wisconsin: Why You Should Probably NOT Refuse the Breath Test
The below is intended for informational use only and does not constitute legal advice or an attorney relationship. If you are facing a criminal charge in Wisconsin please contact a defense lawyer for a free consultation.
Penalties for Refusing a Breathalyzer
Wisconsin is an “implied consent” state. This means if you refuse chemical testing of your breath, blood, or urine, you can face additional consequences impacting your driving privileges. Although a chemical test refusal is not a criminal charge and does not carry the possibility of jail time or fines, it can nevertheless be a costly and burdensome ordeal. On a first offense OWI, the penalties for refusing to provide a sample to law enforcement can actually be more severe than the penalties for the OWI itself. The refusal penalties increase if you are facing a second OWI offense (or greater).
The Grieve Law firm handles cases for first time and repeat OWI offenders with or without refusal in Milwaukee, Waukesha and throughout Wisconsin.
Keep in mind if you chose to refuse the chemical test, law enforcement could attempt to obtain a warrant to take a sample of your blood anyway. You would still be subjected to the potential penalties for refusing to provide a sample.
Given the significant consequences of an implied consent refusal in Wisconsin, it is important to hire an experienced OWI lawyer to protect your rights.
Field Sobriety Test Refusal: Penalties in Wisconsin
The standard set of tests that all law enforcement officers are trained to administer is the horizontal gaze nystagmus test (HGN), the nine-step walk and turn, and the one leg standing test. Each test must be administered within a narrow set of rules, otherwise the results may be called into question and the test can be thrown out.
1st Offense for Refusing a Field Sobriety Test or Chemical Test:
- Driver’s license revoked for 1 year
- Ignition interlock device (IID) must be installed in your vehicle for 1 year
- 30 day waiting period to apply for Occupational License
- Penalties double if a child under the age of 16 is a passenger in your vehicle
By contrast, for an OWI 1st without refusal, the period of driver’s license revocation is 6-9 months, and an IID is only required if the person’s BAC is over 0.15. Furthermore, there is no waiting period to apply for an occupational license.
2nd Offense for Refusing a Field Sobriety Test or Chemical Test:
Penalties for chemical test refusal get even steeper on an OWI 2nd with refusal:
If no prior OWI convictions within past 10 years
- Driver’s license revoked for 1 year
- IID must be installed for 1 year
- 30 day waiting period to apply for Occupational License and must maintain absolute sobriety
- Penalties double with a passenger under the age of 16 in vehicle
If any prior OWI convictions within past 10 years
- Driver’s license revoked for 2 years
- IID installed for up to 2 years (beyond any jail time from related offenses)
- 90 day waiting period to apply for Occupational License
- 2 or more OWI offenses in past 5 years, must wait 1 year to apply for Occupational License and must maintain absolute sobriety
- Penalties double if a passenger under 16 years of age is in vehicle at the time of blood test or field sobriety test refusal
3+ Offense for Refusing a Field Sobriety Test or Chemical Test:
- Driver’s license revoked for 3 years
- IID must be installed for up to 3 years
- 120 day waiting period to apply for Occupational License
- 2 or more OWI offenses in the past 5 years, you must wait 1 year to apply for an Occupational License and you must maintain absolute sobriety
- Penalties double if a child under 16 is a passenger at the time of chemical test or field sobriety test refusal
You are only a criminal if you are convicted™
Breathalyzer Laws in Wisconsin - What Else You Need to Know
Drunk Driving and the Implied Consent Law in Wisconsin
Wisconsin’s Implied Consent Law states that, as a driver in the State of Wisconsin, you agree to submit to a chemical test of your breath, blood, or urine if law enforcement has probable cause to believe you are operating your vehicle while under the influence of an intoxicant. You have the right to refuse to provide a sample, but if you do, you could suffer additional penalties.
After you refuse a breathalyzer in Wisconsin you have 10 days before a refusal hearing. An experienced OWI attorney can sometimes get your charges dismissed at this time.
.08 is not always .08
The breathalyzer you take next to your car the side of the road is NOT the same as the chemical test you take back at the station. A chemical test, sometimes taken hours later, may have little or even nothing to do with your blood alcohol concentration at the time you were operating a motor vehicle. No doubt the officer told you something different. And the prosecutor will do the same.
That is why you will need an experienced, award-winning criminal defense team of attorneys to review your case and analyze whether or not a “curve” defense, otherwise known as retrograde extrapolation, would work in your situation. This means after you were pulled over, your blood alcohol levels continued to rise to an illegal level. Just because you were higher than .08% a few hours after the stop does not mean you were higher than .08% while you were driving. Sometimes a case can be made that you were .07% or .06%!
Learn about the penalties for DUI charges in Wisconsin:
- Penalties for 1st offense OWI in Wisconsin
- Penalties for 2nd offense OWI in Wisconsin
- Penalties for 3rd offense OWI in Wisconsin
- Penalties for 4th offense OWI in Wisconsin
- Penalties for 5th offense OWI in Wisconsin
Criminal Defense Attorneys for Drunk Driving Offenses
Being arrested is a scary experience. You won’t be given the opportunity to ask a lawyer before you make your decision. Know your options, and know your rights. Contact our team of award winning former prosecutors for a free consultation on your case.
You Are Only Guilty If You Are Convicted®