10-Day OWI Deadline: What You Need to Know to Keep Your License
Did you know that your driver's license may be suspended or revoked if you receive a Notice of Intent and fail to request an administrative hearing within 10 days?
Many people in Wisconsin are unaware of this law. As a result, they lose their ability to drive before they even have a scheduled court hearing about their operating while intoxicated (OWI) charges.
Many clients come to our Wisconsin OWI/DUI defense law offices asking about getting their licenses back and their driving privileges restored. I'd like to review some of the basics about this 10-day OWI administrative hearing deadline and some related challenges that drivers could experience when facing intoxicated driving charges.
There are two kinds of 10-day notices:
- Administrative Suspension: If you are accused of submitting a breath or blood sample that is over the legal limit, the police may issue a Notice of Intent to Suspend . This starts an administrative procedure with the DMV.
- Refusal Revocation: If you are accused of failing to consent to a breath or blood test, the state may issue a Notice of Intent to Revoke . This starts a procedure in the same court as the OWI/DUI case.
Notices of Intent: What You Need to Know
Both kinds of notices have a 10-day time limit to request a hearing.
Let's go over the differences between the two notices and why you may receive one.
Administrative Suspension: Notice of Intent to Suspend
A Notice of Intent to Suspend Operating Privileges is issued to drivers who have breath or blood tests showing a blood alcohol content (BAC) above the legal limit.
This is called an administrative suspension. It is for six months. The time is credited toward any revocation on the same case, and you will usually be eligible for an occupational permit immediately.
You will receive a Notice of Intent to Suspend Operating Privileges for a first offense, second offense, and third offense OWI/DUI if your BAC exceeds 0.08. For the fourth offense and subsequent OWI/DUI offenses, the BAC is reduced to 0.02.
What Happens During an Administrative Review Hearing
If you request an administrative hearing within the 10-day time limit, the matter will be set for a hearing within 30 days of your arrest. The hearing takes place before a hearing examiner with the DMV. Administrative review hearings can be conducted with you in person, over the phone, or in writing. Your attorney will help you choose the best path for you.
The hearing examiner will review how the law enforcement officer handled the OWI/DUI arrest concerning the following eight issues:
- Was the driver correctly identified?
- Did the officer read the Informing the Accused statement before any kind of BAC testing?
- Did you have a "Prohibited Alcohol Concentration (PAC)" at the time of the alleged offense?
- Were one or more tests administered in accordance with Wisconsin state law?
- Did the results of the chemical tests reveal a BAC over the legal limit or the presence of a controlled substance?
- Was the accused operating a commercial motor vehicle at the time of their arrest?
- If the tests revealed the presence of methamphetamine or related drugs, did the accused have a valid prescription for the substance at the time of the alleged offense?
- Did the law enforcement officer have probable cause to conduct a traffic stop?
The administrative review decision will be mailed to you. If the examiner finds that the law enforcement officer properly adhered to the process, the suspension will be upheld.
Appealing the Administrative Hearing Decision
If you disagree with the examiner's conclusion, it is possible to appeal their decision. The decision letter will include instructions on how to request a judicial review. The judicial review request is also subject to a strict 20-day time limit. If a review is requested, the court may “stay” the suspension pending the review. If the court does not stay the suspension, the court has 60 days to conduct both a trial on the OWI/DUI case and the judicial review.
This suspension period starts on the 31st day after the notice was issued.
Refusal Revocation: Notice of Intent to Revoke
If you are arrested for OWI/DUI, the police are likely to read a form to you called “Informing the Accused.” This form will ask you to submit to an “evidentiary chemical test” of your breath, blood, or urine. The police officer will choose which type of test is requested.
If and only if you submit to the test requested by the police officer, you may request an additional test from the police or arrange for your own test.
If you do not consent to the test requested by the police, they will commence a Refusal proceeding. In many cases, the police will quickly obtain a search warrant and take your blood anyway, without consent.
The police start a refusal proceeding by issuing a Notice of Intent to Revoke. This 10-day notice starts a proceeding in the same court as the OWI/DUI. The 10-day time limit is enforced very strictly.
We often see people who respond to the request for a test by asking for a lawyer, asking questions, asking to speak to parents, etc. Often, the police will consider these responses as refusal and start the refusal proceeding.
Refusal revocations for a Wisconsin driver are usually longer than the revocations for the underlying OWI/DUI case, with long waiting periods for an occupational permit.
What Happens During a Refusal Hearing
If you request a refusal hearing within the 10-day time limit, the matter will be put on the calendar before the same judge as the OWI/DUI. Scheduling these kinds of hearings varies widely from county to county and judge to judge. Some courts will hold refusal hearings very quickly. Other courts will let the refusal “tag along” with the OWI/DUI.
Refusal hearings are held before the judge without a jury. Even in a criminal OWI/DUI case, the refusal hearings are civil, so the burden of proof is lower.
In a refusal hearing the judge will consider:
- Whether the officer had probable cause to believe the person was driving or operating a motor vehicle while under the influence.
- Whether the person was lawfully placed under arrest.
- Whether the officer properly read the Informing the Accused form.
- Whether the person refused to permit the test.
There are many potential defenses to a refusal charge. Your lawyer should be familiar with them in detail. We are Wisconsin’s leading experts on refusal cases.
Can I Still Drive If My License Was Suspended or Revoked?
Surprisingly, it may be possible to keep your driving privileges in some situations.
If you are administratively suspended, you may get an occupational permit.
If you suffer a refusal revocation there will be a waiting period, but you will probably still be able to get an occupational permit. In a refusal case, in some situations, you may appeal your case to the court of appeals, and drive while the appeal is pending.
As part of the consultation process, you can tell us about your unique circumstances, and we can determine what steps we can take to restore your ability to drive.
How an OWI Defense Lawyer Can Help You
We are Wisconsin’s top-rated OWI/DUI defense lawyers. As Wisconsin’s true board-certified specialists in OWI/DUI defense with over four decades in practice, we focus on listening to you, hearing what happened, and finding a compelling story that appeals to a judge and jury's values.
We are Wisconsin masters at the science and law of OWI/DUI cases. More importantly, we focus on you. Your case is more than a puzzle; it is a story of your life, your family, your career, and your future. We will listen to you and tell your story in a way that is compelling.
Tell Us Your Story: Contact Our Law Offices Today
To set up a free consultation, contact our law firm today. We have four locations in the state of Wisconsin: Oshkosh, Waukesha, Milwaukee, and West Bend.
About Andrew Mishlove
A board-certified OWI defense specialist, Andrew Mishlove has practiced law in Wisconsin since 1981. He is a nationally recognized figure when it comes to drunk and intoxicated driving defense. Mr. Mishlove is the author of Wisconsin OWI Defense: The Law and Practice and is on the Board of Regents of the National College for DUI Defense (NCDD).
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