What to Know About Refusing a Breathalyzer Test in Wisconsin

 Posted on January 16, 2023 in DUI/OWI

It is a nightmare scenario for most people: getting pulled over after having several drinks. Suddenly, you see the flashing lights in your rearview mirror, and your stomach drops. You think, “What should I do if the police officer asks me if I have been drinking? Or worse, to take a breathalyzer test?” There are essential things to know if you are ever in this situation.

You may be surprised to learn that you have more rights than you think. However, you will need to proceed with caution because anything you say or do could be used in building a DUI case against you. So let us look at some of the relevant details before you decide whether to take or refuse a breathalyzer test. 

What Does the Law Say?

In Wisconsin, there is something called “implied consent” to testing for blood-alcohol-concentration (BAC) for simply driving a car on a highway or street in Wisconsin. Accordingly, you consent to chemical testing when an officer in a particular situation requests you or when you are required to do so.

According to the law, a police officer can request a breath, blood, or urine test if they have detected the presence of drugs or alcohol. This includes the smell of alcohol or if the police officer has a reason to think you are impaired. Notably, BAC testing is required if you were involved in an accident that resulted in severe bodily injury or death and the responding police officer has cause to believe you broke the law or were impaired when you crashed.

What to Know About Requested vs. Required 

If a police officer requests you submit to BAC testing, and you decide to refuse, you could face penalties. In addition, you may face criminal penalties resulting from your being arrested and your subsequent prosecution. Specifically, your driver’s license will be revoked for one year, and you will have an ignition interlock device installed in your vehicle for a year. Furthermore, penalties will increase if you have been convicted of an OUI in the past or have refused a BAC test in the past. 

If you are involved in an accident requiring you to take a BAC test, you may be arrested for OWI because you refused to submit to a test. However, testing will proceed anyway if you are unconscious after the accident.

What to Know About Roadside Testing

This is where things get interesting. There is a significant caveat within Wisconsin’s implied consent laws. These laws only apply to tests performed after an arrest on charges related to impaired driving. Such tests are generally conducted at a police station or another type of facility approved by the state. Portable breathalyzer devices that are used for roadside use are not included. Therefore, if a police officer asks you to take a breathalyzer test during a traffic stop, you can refuse without being subjected to legal penalties. That being said, your refusal may result in the police officer looking for other reasons to arrest you for OWI or to request testing be done back at the police station.

Contact a Waukesha OWI Defense Attorney

If you are facing legal penalties because you refused a BAC test, consider consulting with an experienced Jefferson County drunk driving defense lawyer at Bucher Law Group, LLC as soon as possible. Call 262-303-4916 for a free consultation.

Source:

https://docs.legis.wisconsin.gov/statutes/statutes/343/iii/305