What Happens When You Refuse an Intoxilyzer or Blood Test in Wisconsin?

Getting pulled over because someone thinks you might be driving under the influence can be a stressful and frightening experience. Especially for first-time offenders, the confusion and panic during a drunk driving stop can make it difficult to make thoughtful choices. In those high-stakes moments, your decisions can carry serious consequences. Understanding what happens if you refuse a blood or breathalyzer test is critical to preserving your license and preparing your defense to any OWI charges that may result from the stop.

Many believe refusing the test might help avoid OWI charges. This is a common and frequently harmful misconception. In Wisconsin, refusing a chemical test can trigger swift and harsh penalties including the loss of your driving privileges or license. This article outlines what to expect, your rights, and how hiring the best criminal defense attorney in Wisconsin can help you avoid unecessary consequences.

Wisconsin has an Implied Consent Law. By operating a vehicle on public roads, the law states that you have agreed to chemical testing if lawfully arrested for Operating While Intoxicated (OWI). Chemical testing may include a test of a speciment of your breath, blood, or urine. While field sobriety tests and preliminary breath tests (PBTs) are voluntary, refusing the official chemical test requested by law enforcement triggers automatic penalties separate from the OWI charge involving the suspension or revocation of your license regardless of whether you are ever convicted of OWI.

What's the Difference Between an Intoxilyzer Test and a Preliminary Breath Test (PBT)?

An Intoxlizyer test is not the same as a Preliminary Breath Test (PBT) offered roadside.  An Intoxilyzer machine uses more sophisticated testing than the PBT and, if administered properly, can be used as evidence of your blood alcohol level in court.  The handheld PBT device is used to extablish probable cause, it cannot be used as evidence in court and can be refused with fewer consequences.  Refusing the official chemical test after arrest however, whether Intoxilyzer or blood draw, violates Wisconsin's Implied Consent law and can lead to serious penalties.  An officer must advise you of the potential consequences for refusing the test at the time the request is made.  If they fail to give the proper warnings when requesting a sample of your blood, breath or urine, there could be grounds to challenge the refusal.

Many people refuse to submit to a chemical test of their breath or blood because they hope it will make it more difficult to convict them of an OWI.  Unfortunately, this is not usually true.  Not only will law enforcement still likely get the sample, the refusal itself brings swift and severe consequences.    Regardless of whether you are convicted of the OWI, the refusal will still affect your license and your driving record.

For second and subsequent OWI arrest (2nd, 3rd, 4th etc.), law enforcement collects blood samples for testing.  If you refuse to give a sample of your blood, it is quite likely that law enforcement will apply for warrant to take it without your consent, get the sample and complete the testing.  They will still have the evidence and you will still be stuck with the consequences of the refusal.  The warrant application process may delay the collection but it is unlikely to stop it. 

For first offense OWI, because they are not criminal in Wisconsin, law enforcment usually requests you submit to a breath test using the Intoxilyzer or similar machine rather than the more invasive blood test.  If you refuse the breath test however, they may decide to apply for a warrant to collect your blood.  

The rules surrounding an OWI stop and arrest can be complicated and confusing.  A criminal defense attorney can look at every aspect of your case and help you determine a strategy for your defense regardless of what evidence is collected.  

Refusal triggers automatic civil penalties under Wisconsin law, including license revocation.  Once you refuse to sumit to a sample, you are given a Notice of Intent to Revoke your license.  From that time you will have ten days to request a refusal hearing.  If you do not request a hearing or are unsuccessful at the refusal hearing, your license will be revoked for a year or more.

Even if you are not convicted of an OWI, the refusal alone can lead to serious consequences for your license and driving privileges. If you have been arrested and refused a chemical test, a criminal defense lawyer can help you figure out what your options are to mitigate the consequnces of that decision.

Increasing Penalties for Each Refusal
The first refusal results in a one-year license revocation of your driving privileges. After the first 30 days of that revocation you can apply for an occupational license.  You'll be required to complete an alcohol and drug assessment and follow through with a driver safety plan. The court may also require you to install an IID, even without a conviction for the OWI. 

For subsequent refusals, the length of revocation and IID are increased,  the length of time before you can get an occupational license increases and you will again be ordered to obtain and alcohol or drug assessment and complete a drive safety plan.  

Losing driving privileges can be a significant challenge for anyone, making it difficult to perform many daily responsibilities like going to work, getting children to school and maintaining a household.  If you are dealing with a refusal it is important to have an attorney who can help you navigate all of the collateral consquences to set you up for future success and not make matters worse while your case is pending.

Field sobriety tests like the walk-and-turn, one leg stand, Horizontal Gaze Nystagmus (HGN) or a Preliminary Breath Test (PBT) are optional in Wisconsin. Refusing them won't automatically suspend your license. Still, police may see refusing field sobriety tests as suspicious and an indicator that you may be intoxicated. They'll document it, and prosecutors may argue you refused the tests because you're hiding something.

It's legal to say no to field sobriety tests, but it might still hurt your case unless a criminal defense lawyer is able to explain your actions to the court and/or jury.

Request a Refusal Hearing 

Even if you did refuse a chemical test, you have a short window in which to request a refusal hearing to determine whether the officer correctly followed procedure and whether a refusal actually occurred.  These hearings strictly adhere to a limited scope of inquiry and an attorney can ensure that you are challenging the refusal on the correct grounds and make any arguments that are legally available to you.

The Stop Was Unlawful
Police need a valid reason to stop you. If there was no valid basis for the stop, this may compromise everything that happened after that, including your arrest and refusal.   A skilled criminal defense lawyer will investigate every detail to determine whether there were problems with the stop to protect your rights and challenge their case.

No Probable Cause for Arrest
Even if the stop was valid, arresting you requires probable cause to believe you have violated the law. The best criminal defense attorneys will carefully review the evidence and challenge the arrest if probable cause did not exist.  If the arrest was not legal, there may be a basis to challenge the request for a chemical test and the subsequent refusal.

Nelson Defense Group is based in Hudson and helps clients all across Wisconsin. We focus on OWI defense, including refusal cases. Our attorneys have extensive experience and know how to defend your case effectively regardless of anything you did or did not do during the stop.We will get to know the unique details of your case and work with you to begin building your defense and protecting your future.

Refusing a blood or breath test in Wisconsin can lead to serious legal and personal consequences. License revocation, mandatory IID installation, and lasting effects on your record are all possible. Wisconsin's Implied Consent Law makes refusal a serious matter.

Whether you're dealing with your first OWI or a repeat charge, it is essential to act quickly. The window to request an adminitrative hearing for refusals or revocations is very small and the consequences serious.  Besides challenging the refusal itself, there may be issues with the stop, the arrest, or the way your rights were explained which could be useful to you in defending youself. But you need an experienced attorney to reiew the facts of your case and start building a defense right away.  

At Nelson Defense Group, we don't wait. We build your defense from day one. Contact Nelson Defense Group today to schedule your consultation. Let our experience protect your rights and your future.