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Refusal to Take Breathalyzer Should you blow? Here are the laws in Wisconsin

The penalties for refusing a breathalyzer in Wisconsin include driver's license revocation for 1 year and a legally mandatory IID installation. These consequences can be worse than a first offense OWI: 6-9 months driver's license revocation and IID installation only over .15 BAC. Refusal can also be used as evidence against you as evidence that you were intoxicated. Take the breathalyzer.

Tom Grieve

OWI & Criminal Defense Attorney

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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, Madison, Waukesha, and throughout Wisconsin.

Should you refuse a breathalyzer in Wisconsin?

Refusing the chemical test will add charges to your case and law enforcement may obtain your blood via a warrant after a refusal.  Additionally, most of the defenses to the refusal charge are also defenses to an OWI arrest itself, meaning: if you can beat the refusal there is a good chance that you can beat the OWI, but not necessarily vice versa. Most of our attorneys agree: consenting to the chemical test, while not always the best choice, is always the safe choice.

Should you refuse a breathalyzer test in Wisconsin

What happens if you refuse a breathalyzer in Wisconsin?

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. 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.

Given the significant consequences of an implied consent refusal in Wisconsin, it is important to hire an experienced OWI lawyer to protect your rights.

If you refuse to take a breathalyzer test in Wisconsin, how long is your license suspended?

First offense breathalyzer refusal is a 1-year revocation. 2nd offense breathalyzer refusal is 2 years if you have priors within the last 10 years, else 1 year. 

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.

What are the penalties for 1st Offense 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 an 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 in Wisconsin is only required if the person’s BAC is over 0.15. Furthermore, there is no waiting period to apply for an occupational license.

What are the penalties for 2nd Offense Refusing a Field Sobriety Test or Chemical Test?

OWI 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 the 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 an 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 the vehicle at the time of blood test or field sobriety test refusal

What are the penalties for 3rd Offense for refusing a Field Sobriety Test or Chemical Test? *includes higher than 3rd

  • Driver’s license revoked for 3 years
  • IID must be installed for up to 3 years
  • 120 day waiting period to apply for an 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.

Can you refuse a breathalyzer in Wisconsin? Is it illegal?

You have the right to refuse (or say no to) providing a sample, but if you do, you could suffer additional penalties for not consenting.

.08 is not always .08

The breathalyzer you take next to your car on 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 OWI penalties in Wisconsin:

Criminal Defense Attorneys for Drunk Driving Offenses

Being arrested is a scary experience. You won’t be given the opportunity to talk to 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. Think you were pulled over unlawfully? Learn more about Wisconsin pullover laws

 You Are Only Guilty If You Are Convicted®

Contact the Wisconsin breathalyzer refusal lawyers with a reputation for getting charges reduced or dropped.

In Wisconsin, how long does an OWI Breathalyzer Refusal charge stay on your record?

In Wisconsin, refusal to take a breathalyzer, whether you would have had a BAC of .02 or .12, could add to possible OWI charges, which could remain on your record for life.

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