The stop may start with a few simple questions: Where was the driver coming from? How much had the driver had to drink? Then comes a more serious request: Take a breath test. For a driver who has never faced an OWI stop before, it may not be clear what that request means or what a refusal could mean for the driver’s license. Wisconsin’s implied consent law makes chemical testing different from an ordinary request during a traffic stop. Refusing a test can result in consequences that are separate from the OWI charge itself.
What does implied consent mean in Wisconsin?
Wisconsin uses the term operating while intoxicated, or OWI, rather than DUI. Under the state’s implied consent law, a person who drives or operates a motor vehicle on Wisconsin roads is considered to have consented to certain chemical tests for alcohol or drugs when an officer makes a lawful request. Depending on the circumstances, the requested test may involve breath, blood or urine.
A driver can refuse a requested test. However, that decision can trigger separate penalties under Wisconsin law. Those penalties may apply even if the driver does not ultimately face an OWI conviction. In other words, a refusal can create a driver’s license issue apart from the case involving the alleged impaired driving.
What penalties can follow a refusal?
A chemical test refusal can result in the revocation of driving privileges. The length of that revocation depends in part on the driver’s record and the circumstances surrounding the refusal.
For example, Wisconsin law provides for:
- First refusal: A one-year revocation of driving privileges
- Second refusal: A two-year revocation in certain circumstances
- Third or subsequent refusal: A three-year revocation
- Ignition interlock: Certain drivers may also face an ignition interlock requirement
These penalties are separate from those imposed after an OWI conviction. A driver may therefore face a license revocation for refusing a chemical test while the underlying OWI charge remains unresolved. That distinction can matter for drivers who depend on their licenses for work, school or other daily responsibilities.
Can a driver refuse a blood test?
A driver can refuse an officer’s request for a blood sample. However, refusal does not necessarily prevent law enforcement from obtaining the sample. Depending on the circumstances, an officer may seek a warrant authorizing a blood draw. If a judge grants the warrant, law enforcement can generally obtain the sample despite the driver’s refusal.
This creates an important distinction between refusing a test and preventing the collection of evidence. A refusal may lead to an implied consent revocation, while a valid warrant may still allow law enforcement to collect and test a blood sample.
The rules surrounding chemical testing can become difficult to navigate after an OWI arrest, particularly when a driver must consider both the immediate impact on driving privileges and the potential effect on the underlying case.
What should drivers do after an OWI refusal?
An OWI refusal can affect driving privileges and raise legal issues separate from the underlying charge, which can leave drivers unsure about what happens next. The consequences may depend on the type of test, the circumstances of the refusal and the driver’s prior record. Speaking with a Wisconsin OWI attorney can help clarify how the law applies to a particular case, what deadlines may matter and what options may be available.
