Wisconsin DUI: Refusal to Take a Blood, Breath, or Urine Test

In Wisconsin, if you get pulled over for a DUI (driving under the influence) and the officer asks you to take a blood, breath, or urine test, do you have to take one? What happens if you refuse?

Implied Consent

Wisconsin law requires you to take a blood, breath, or urine test if you are arrested for a DUI. Wisconsin’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence, then you consent to taking one or more chemical tests of your blood, breath, or urine for the purpose of determining your blood alcohol content (BAC).  The test or tests must be taken as soon as possible from when you were last driving and you cannot refuse without penalty. The officer gets to choose how many and which tests you take.

This law also applies even if you are not actually driving a car. In Wisconsin, you could be arrested and asked to take a chemical test if you are operating a vehicle while intoxicated (OWI). Generally, operating a vehicle means that the driver has the power to make the car move. For example, a driver realizes he has had too much to drink so he pulls over to sleep it off, but he leaves the motor running and heater on. The officer finds him, wakes him up, smells alcohol on his breath, and arrests him. Although the car was not moving, the law still punishes this behavior because the driver could have woken up and driven away while still drunk. To read more about this, see the case Milwaukee County v. Proegler, 291 N.W. 2d 608 1980.

You could be asked to take a preliminary breath test even before you have been arrested. This works like a field sobriety test. The officer will use the results to establish probable cause that you were driving under the influence. You do not have to take this preliminary test. Refusing it, however, probably won’t work in your favor if the officer has some other reason to think you had been drinking. Based on that other reason, the officer could still arrest you and then you will be required to take a test under the law described above.

You can read Wisconsin’s implied consent law in the Wisconsin Statutes Annotated 343.305.

Refusing to Take the Test

 

1st Offense

2nd Offense

3rd Offense

Refusal to take test

1 year license revocation

2 year license revocation (offenses must be within 10 years of each other)

3 year license revocation (offenses must be within 10 years of each other)

Once you are arrested, the officer must tell you that if you refuse to take a chemical test, then your license will be suspended and evidence of your refusal can be used against you in court. The officer must also warn you that if you choose to take a test and your results are at or above the legal limit, your license will be suspended and you face other penalties once you are convicted of a DUI or OWI. After you submit to the officer’s test, you have the right to additional tests taken by a medical professional of your choice.

The penalties for refusal begin with a one-year suspension of your license. After 30 days, however, you could apply for an occupational license that allows you to drive with some restrictions. For your second refusal within ten years, the suspension lasts for two years and you can request an occupational license after 90 days. For your third or any subsequent refusal, the suspension lasts for three years and you can request an occupational license after 120 days. If you had a minor as a passenger in the car when you were arrested, then the penalty for your refusal is doubled.

The consequences of refusal are found in the Wisconsin Statutes Annotated 343.305.

Should You Refuse to Take a Mandatory DUI Test in Wisconsin?

It usually does not help you to refuse to take a blood, breath, or urine test when you are arrested. For a first DUI in Wisconsin, you will have to pay a fine up to $300. Your license could also be suspended from six to nine months if your BAC is .15% or higher. This is milder than a year-long suspension for refusal. Still, refusing the test does not guarantee that you won’t be convicted – you could be found guilty of a DUI even if your refusal means that the state does not have proof that your BAC was over.08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DUI.

Get Help With Your DUI

If you have been arrested on a DUI charge in Wisconsin or any other state, get help from an experienced DUI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DUI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DUI. To avoid or reduce the consequences, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court.

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