Do I have a right to refuse to submit to a sobriety test?
You can refuse to take a field sobriety test, but I wouldn't recommend it if you have a Wisconsin license and are stopped in Wisconsin. If you refuse to submit to a field sobriety test, that refusal alone is probable cause for an arrest for OWI - operating while under the influence.
Conversely, if you are an Illinois driver stopped by police on suspicion of drunk driving, you might want to refuse to test.
Field sobriety tests are tests conducted "in the field" after police stop a person whom they suspect of driving while under the influence. Typical field tests include standing on one foot, walking a straight line and turning around to walk back (walking heel-to-toe), touching a finger to your nose, and similar tests created by police over the years to "assumedly" test for sobriety.
chemical tests
Chemical testing, better known as blood draws or blood tests, are conducted at a hospital.
Breath tests, or tests conducted with an intoximeter (previously known as a breathalyzer) are conducted at a police station, as well as in the field with portable breath testing machines.
implied consent law
Wisconsin implied consent law requires a person to submit to a blood test. If a person refuses to submit to a blood test to determine whether or not they have a prohibited level of alcohol in their bloodstream, the refusal is probable cause for an arrest.
The implied consent laws apply to those tests which are specifically designated as valid tests to determine blood alcohol concentration levels.
forced blood draws
Can police force a person to have a blood draw to determine if they are drunk or sober? Police have in the past been able to get away with forcing a person to submit to a blood draw, and courts have not thrown out the evidence gathered from those forced tests on the basis that the tests were forced. However, that is not to say that police can do so at all times and get away with it; there are other factors to be considered in the case, such as if the stop was legal. If the stop is not legal, then the results of a forced blood draw - or any blood draw or other test - would also not be legal, but as with all facts in any case, the facts must be tried or used in plea negotiations.
to refuse, or not to refuse
People often ask if they should submit to a test or refuse to do so.
While Illinois drivers might always be encouraged to refuse to submit to a test, the opposite would be true for Wisconsin drivers.
If a person refuses to submit to a blood test, the actual "refusal" cannot be used against them at trial; however, the refusal is probable cause for police to arrest them.
refusal challenges
While there are many facts involved in any drunk driving arrest that can be challenged - the police stop lacking probable cause, faulty testing devices, blood evidence, and on and on - a refusal is much more difficult to beat than a a charge for operating while under the influence. For instance, the burden of proof required from the prosecution is much lower.
consequences of refusing a test
If a person refuses to submit to a blood test, they will receive a Notice of Intent to Revoke. However, if a demand is made for an administrative hearing within 10 (ten) business days, their driver's license (and driving privileges) will be intact for the remainder of the case.
The Notice of Intent to Revoke will serve as your temporary driving receipt for third (30) days from the Notice date. The form also contains additional information.
If you are convicted of the refusal, there is a mandatory minimum one (1) year revocation of your operating privileges.
owi-dui.com can help
OWI-DUI.com provides you with Wisconsin's Best Drunk Driving Defense Attorneys. If you refused to submit to a test, regardless of whether you were subsequently forced to submit to a test, it is imperative that you seek legal counsel as soon as possible. You have ten (10) days to take legal action that can make all the difference between you being able to drive in the future. To contact an attorney, please call 1-877-749-7858 or use the online form (usually faster).
attorney corey chirafisi
Wisconsin Super Lawyers Rising Star and former Wisconsin prosecutor, Attorney Corey Chirafisi defends people accused of drunk driving and related offenses. Corey defends people in both misdemeanor and felony drunk driving cases. Recently, he won a case involving a test refusal in which the court found his client not guilty of refusing to submit to a test. In another recent case in which his client was charged with felony drunk driving - fifth offense, he successfully challenged the prior convictions to reduce the OWI 5th to an OWI - 1st offense. Attorney Corey Chirafisi participates in the OWI-DUI.com Discount Program, and provides a Free Initial Consultation to people who have been charged with an OWI or related offense. To contact Attorney Chirafisi, please call 1-877-749-7858 (or 250-3500 in Madison) or use the online form.
