CAN YOU REFUSE A BREATH OR BLOOD TEST

If It's Your First DUI?

In 2016, the legislature gave judges the authority to issue warrants for forced blood draws even in first offense, civil OWI cases. While you cannot be criminally charged for refusing a test, it does carry more severe driver’s license penalties, and the police may take your blood with a warrant anyway.

It is important to note that refusals are often more difficult to fight than OWI/DUI violations. In fact, the penalties for a first offense refusal are actually more severe than those for a first offense OWI or PAC violation.

If this is your first offense OWI and you refused to submit to the chemical breath or blood test after being read the “Informing the Accused” form, law enforcement probably did not do a forced blood draw. You should have received a document titled “NOTICE OF INTENT TO REVOKE.”

You have ten days from the notice date on that document to request a Refusal Hearing before the Court. Failure to request the hearing in the appropriate time period will result in an automatic Refusal conviction and driver’s license revocation.

In 2013, the Wisconsin Supreme Court ruled that courts do not have authority to reopen these cases if a person does not make the request in the ten-day window. If a timely request is not made, you will have no recourse. If you miss the ten-day deadline or if the Court finds the Refusal to be “unreasonable,” you face a one-year revocation of your license.

For the first thirty days of that revocation, you are prohibited from driving at all. After thirty days, you may obtain an occupational license for the remainder of the revocation. You are also subject to the one-year IID requirement and alcohol and other drug assessment. There is no fine or forfeiture penalty for a refusal violation.

REMEMBER:

In Wisconsin, if you have “failed” a breath or a blood test, you may have only 10 days to request a hearing, or you will lose your license. You may still be eligible for an occupational license, but this restricts you to driving to and from work at designated times.

After an OWI, time is of the essence. If you submitted to a chemical breath or blood test other than the on-scene hand-held breath test device, you should have received a document titled “NOTICE OF INTENT TO SUSPEND” if your breath or blood test result was 0.08 or higher.

You have 10 days from the notice date to request an administrative hearing with the Wisconsin Department of Transportation. These hearings are limited in scope, but they are the only way to attempt to avoid a pre-conviction suspension. They can also play a huge role in your OWI case strategy.

Failing to request a hearing within the first 10 days will result in an automatic six-month suspension of your driving privileges, which begins thirty days from the notice date.

While requesting the hearing may not prevent a suspension, it does give you an opportunity down the road to request that the court stay your suspension—essentially putting it on pause—while the case is pending. If you drive for a living, or if you cannot afford to have any type of driving restriction on your record, it is imperative that we help you handle this hearing.