Wisconsin DUI / OWI and the Fourth Amendment: What You Need to Know

If you've ever been pulled over for a OWI / DUI or drunk driving in Wisconsin or have worried about what to do if you are, you've probably wondered what rights you have. The Fourth Amendment to the U.S. Constitution is the foundation of those rights when it comes to police encounters, including OWI or DUI stops in Wisconsin. 

Here's a plain-language breakdown of how it works.

The Fourth Amendment protects people from unreasonable searches and seizures by the government. In the context of an OWI or DUI, this matters from the moment a police officer pulls you over to the moment your blood is drawn. The Fourth Amendment protects those pulled over from having their person or property searched without reason.

Not exactly. A traffic stop is itself a "seizure" under the Fourth Amendment, which means it has to be legally justified. Officers must have what's called reasonable suspicion: specific, articulable facts suggesting that a crime or traffic violation has occurred. A hunch isn't enough.

In practice, this threshold isn't particularly high. A broken taillight, expired license plate tabs, weaving within a lane, or even a wide turn can all give an officer the legal basis to initiate a stop. If an officer can point to specific observations that justify pulling you over, the stop is likely valid.

A second prosecution may be allowed under certain circumstances such as when a mistrial is declared that is not caused by the prosecutor; when the case has been appealed and remanded for a new trial; and when the subsequent charge is not the “same offense.”

Whether a subsequent charge is the “same offense” or not is often the source of litigation. Over the last several decades, the definition of “same offense” has become much harder to meet. There are two primary reasons.  

The first is the 1932 U.S. Supreme Court decision in Blockburger v. United States. This case redefined “same offense” from offenses arising from a common set of facts to a strict elements test. Even if two criminal offenses have nearly all the same facts in common, if one additional fact that must be proven on one charge differs from the other, then they are considered separate offenses, and an acquittal or conviction on one does not prevent a second prosecution on the other. There are exceptions to this, such as when one offense is a lesser included of another. For example, you cannot be convicted of both possession of marijuana and delivery of marijuana from the same incident, since you cannot deliver marijuana without possessing it. Lesser included offenses can also be defined by state statute. All homicides are statutorily deemed as lesser included offenses of each other, so you can’t be convicted of more than one homicide charge for the death of one person.  

The second is that at the time of the Blockburger decision, the impact of the new elements tests was much less pronounced because the number of criminal offenses on the books was far less. However, there are now exponentially more crimes. It’s common to see a single incident that used to be charged as a single robbery, for example, now charged as half-a-dozen offenses. Instead of a single robbery count, there may be firearm related charges; battery; endangering safety; false imprisonment; disorderly conduct, and so on. Even if you were acquitted of the robbery, the State may not be prevented from charging you again with some of these other offenses in a subsequent prosecution. A well-known example is the 1994 case of Chris Jacobs, who was acquitted of murdering five members of the Kunz family. After the verdict, the State filed new charges against Jacobs for kidnapping and falsely imprisoning one of the five victims, as there was evidence one of the victims had been moved. Jacob’s double jeopardy argument was rejected because at least one of the facts that had to be proven for kidnapping differed from those for homicide.  

Double jeopardy issues become even more complicated when dealing with on-going offenses such as embezzling, racketeering, and conspiracies.

This is a question that comes up often. In Wisconsin, field sobriety tests are not mandatory. There is no legal penalty in Wisconsin for declining to perform them. That said, refusing to do field sobriety tests may factor into an officer's decision to make an arrest, and it may come up later in legal proceedings.

Officers sometimes use a handheld breathalyzer called a Preliminary Breath Test (PBT) at the roadside. In Wisconsin, the PBT result itself is generally not admissible as evidence of guilt at trial, but it can be used to support probable cause for an arrest. There is no penalty for refusing a PBT, although there can be a penalty for refusing a breath or blood test after police have made an arrest.

Wisconsin operates under what's called an implied consent law. The law says that by choosing to drive on Wisconsin's public roads, every driver implicitly agrees to submit to chemical testing (blood, breath, or urine) if lawfully arrested for a drunk driving offense. It's considered part of the broader set of rules and responsibilities that come with having a driver's license.

This means that after a lawful OWI arrest, you don't have an unfettered right to refuse a chemical test the way you might refuse other things. The law says that by choosing to drive on public roads, consent has already been given if the arrest for OWI is lawful.

This is one of the most common questions people have — and one of the most important to understand before you're ever in that situation.

If you refuse a blood draw after an OWI arrest in Wisconsin, a few things are likely to happen. First, police will typically seek a search warrant to draw your blood anyway, especially if you already have a previous OWI conviction. Wisconsin courts have generally made this process fairly quick, and a refusal usually doesn't prevent the blood draw from happening — it just delays it.

Second, the refusal itself carries its own legal consequences under Wisconsin's implied consent law: if you refuse a blood or breath test after an arrest, police can issue a citation. If convicted, a refusal citation carries serious consequences: a one-year license revocation and a one-year ignition interlock device (IID) requirement. In addition, there is a strict deadline to respond to refusal citations. Once an officer gives you a citation for a refusal, you have just ten days to request a hearing. Failure to request a hearing within ten days results in a conviction, license revocation, and IID requirement.

You can request a hearing and argue that the refusal was reasonable, but be aware that the court will only consider whether:

• The officer had probably cause for the OWI arrest

• The officer read the Informing the Accused Form (the statutory notice explaining the consequences of refusing)

• You made a knowing and voluntary decision to refuse

The Fourth Amendment provides meaningful protections, but those protections have limits, and they interact with Wisconsin-specific laws like implied consent in ways that aren't always obvious. Knowing your rights in the abstract is useful; understanding how they may have been applied during your traffic stop or OWI arrest is something else entirely.

If you've been charged with OWI, DUI or drunk driving in Wisconsin, or you have questions about a recent police encounter, speaking with an attorney who handles these cases regularly is the best way to understand your specific situation.

Nelson Defense Group Attorneys have been handling Hudson, and Western Wisconsin OWI and drunk driving cases for decades, and have both the skill and experience to help protect you. For a free consultation, call our office at 715.386.2694.

Written by Mac Blessen, Attorney at Nelson Defense Group