Wisconsin’s Implied Consent Laws and Refusals

Wisconsin enacted the Implied Consent provision of the state statutes in 1970 and now all 50 states employ Implied Consent Laws.  The purpose of the Implied Consent Law is to help the identification of drunk drivers and their removal from public roads.  Choosing not to cooperate with law enforcement by withdrawing consent to evidentiary chemical testing is considered a refusal which is in violation of Wisconsin’s Implied Consent Law.

What is Implied Consent?

Implied consent is consent or permission that is not expressly granted by an individual; rather, it is implied by the individuals actions. In regards to Drunk Driving Tests, anyone driving on public highways has given their implied consent to chemical testing of his or her blood/breath/urine by law enforcement officers.  These tests are required to determine if alcohol and/or drugs impaired your driving.

Who is subject to Implied Consent Laws?

All individuals applying for a Wisconsin driver license at the Department of Motor Vehicles agree (regardless of whether they realize it or not) to Wisconsin’s Implied Consent Law in exchange for the privilege of driving on Wisconsin public highways.  Those with a different state’s drivers license are also deemed to have given implied consent when driving on Wisconsin’s public roadways.  Consequently, law enforcement officers have the implied consent of all motorists to perform chemical testing for the purpose of determining the presence or quantity of alcohol or drugs.

What types of evidentiary tests are allowed?

The three types of testing that may be administered under the authority of the Implied Consent Law are blood, breath, and urine.  The breath test is usually the first test DUI suspects are asked to perform.  The breath test does not detect the presence of controlled substances.  If drug use is suspected, the arresting officers will request a blood test.  When blood or urine testing is employed, the specimens are sent to a Wisconsin licensed laboratory.  Urine testing is least utilized test because of it unreliability.

What is a Refusal?

Choosing to refrain from evidentiary testing constitutes a refusal. When a motorist is arrested for DUI and refuses to submit to an evidentiary test, the officer is required to take immediate possession of the arrested person’s license.  The accused will receive a notice of intent to revoke the person’s operating privileges.  Wis. Stat. §343.305(9)(a). When a law enforcement officer has reason to believe a motorist has been drinking, they may conduct field sobriety testing and request the driver perform a roadside breath test otherwise known as a Preliminary Breath Test (PBT).

Note: Taking a roadside breath test or PBT is not an evidentiary test.  This means that a motorist can refuse the roadside PBT without penalty, but cannot refuse the subsequent evidentiary blood/breath/urine tests without penalty.

What are the consequences of a Refusal?

Wisconsin has strict penalties for refusals because the State relies on chemical testing to prove the DUI defendant’s guilt.  When a motorist refuses, the prosecutor will typically attempt to introduce evidence of that refusal and attempt to induce the judge or jury to conclude that the Defendant knew or thought that he would fail the test and thus is guilty. Even if a motorist is not charged with a DUI, or is charged but then later acquitted, refusal to take an evidentiary test can result in revocation or suspension of driver license.

In Wisconsin, refusing on a first DUI offense will result in a one-year license revocation, a 30-day waiting period for an occupational license, and installation of an Ignition Interlock Device.  Whereas when a motorist submits to chemical testing and is subsequently convicted on a first DUI, the penalty will only result in a 6 to 9 month license suspension and no waiting period for an occupational license.  Unless hindered by a physical disability or disease that is unrelated to illegal drugs or alcohol, there is no valid legal reason to refuse testing.  Despite a motorist’s right to an attorney upon arrest for DUI, they do not have a right to contact an attorney prior to deciding whether or not to submit to a chemical test.

Can motorists have a second test performed?

Under Wisconsin’s Implied Consent Law, the arresting law enforcement agency has the right to choose which evidentiary chemical testing to administer.  If the motorist submits to the requested testing, they then can request an alternative test offered by the law enforcement agency at the driver’s expense.  However, alternative independent testing of the motorist’s choice is unavailable when they do not consent to the primary test.

Other Questions Relating to Implied Consent Laws or Refusal?

Contact your Milwaukee DUI Attorney at Vanden Heuvel & Dineen, S.C. if you have any further questions regarding Refusing Drunk Driving Tests and Wisconsin’s Implied Consent Law.