Author: David E. Saperstein

Phone: 608-257-0945

Email: dsaperstein@hbslawfirm.com

One of the more confusing aspects of a drunk driving (OWI) case involves the request for a breath, blood or urine test after arrest. You have already made the decision to either agree to the test or “refuse” when you consult with an attorney after an OWI arrest, and you might be asking, “Should I have refused?” or “Was it a good thing that I did refuse?” (depending on which decision you made during the encounter). Those questions require more than a simple “yes” or “no” answer.

Wisconsin, like most states, has an “Implied Consent” law (§ 343.305 of the Wisconsin Statutes). That law, in effect, states that anyone who applies for a Wisconsin driver’s license or who drives on Wisconsin roads has (by doing one or both of those things) already consented to provide breath, blood or urine when requested by law enforcement during a drunk driving arrest and investigation. The law also requires the investigating officer to read a form to the suspected drunk driver, informing him of the implied consent law and the consequences for refusing. That form is called “Informing the Accused.”

If you have never been investigated for OWI you probably have never heard of the implied consent law. In reality, the first time you learn of it may be on the roadside, in a squad car or in a police station after an OWI arrest. The question of whether consent actually (“voluntarily”) occurs when you apply for a license or drive on the road has been the subject of legal challenge, including by this law firm. That question involves the tension between the implied consent law and the U.S. Constitution’s Fourth Amendment, which generally requires an officer to get a warrant before executing a search; and the taking of your blood, breath or urine is a search of the most invasive kind. Although this issue is still evolving, courts have consistently upheld the constitutionality of implied consent.

The bottom line is that you have a “right” to refuse to give breath, blood or urine. You may suffer some potentially unpleasant consequences if you do refuse, but you absolutely have the right to refuse. If you refuse, the officer essentially is left with three options: (1) he can promptly get a warrant approved (typically over the phone) by a judge, court commissioner or “magistrate,” which will authorize taking your blood without your approval; (2) he can simply mark you down as a “refusal” and not get a sample from you; or, (3) he can come up with some other legal exception that allows law enforcement to take your blood without your consent (by force if necessary) and without a warrant.

Recent high court decisions have narrowed the possible exceptions to the warrant requirement. Essentially, there have to be unique circumstances that make getting a warrant impossible or very difficult, such as an accident with injuries that must be attended to, or “exigent” circumstances that justify expediting the taking of blood at the expense of your constitutional rights. If these circumstances are not present then the officer must either get a warrant or your consent, or otherwise forego a blood, breath or urine test.

If your refusal is deemed unjustified (i.e., if there was indeed probable cause to arrest and there are no medical issues that would justify the refusal) you will endure some onerous “administrative” penalties. Your driver’s license will be revoked for at least 12 months. You will be required to install an ignition interlock device (IID), which is a breath-testing device that is connected to a vehicle’s ignition system, and will disable the vehicle if alcohol is detected when you exhale. The Department of Motor Vehicles (DMV) also imposes a waiting period before the you are eligible to get a temporary occupational license, so you could be without any license at all for a period of time.

With a 1st offense OWI the refusal penalties can sometimes be harsher than if there was a blood, breath or urine test over the .079 legal limit. However, especially if you are an out of state driver, a refusal finding may be a better outcome (if you cannot beat the case entirely) than getting convicted of an OWI. In the case of a criminal OWI (2nd or subsequent offense, for example) a refusal, which could deprive the prosecution of their most important piece of evidence, may be a rational decision.

Because of the significant penalties associated with a refusal it is very important that the refusal is challenged immediately. This requires the filing of a “Refusal Hearing Demand” with the court that will ultimately hear your case. There is only a 10-day window to challenge the refusal, so it imperative that you seek the assistance of an attorney soon after an OWI arrest.