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Refusing a Breathalyzer Test During an OWI Stop in Wisconsin


After many depictions in shows and movies, you’re probably familiar with the use of breathalyzer devices in suspected drunk driving arrests. While familiar, the severity of real-life encounters with breathalyzers can be much more intimidating. The gravity of getting pulled over for a suspected OWI can cause you to lose composure and misremember your rights, the legal procedure around these police stops, and the law. Here are a couple tips if you are pulled over and an officer requests you perform a breathalyzer test.


Can you refuse a field sobriety test?

You are Not Required to Perform a Field Sobriety Test

Field sobriety tests are used to gauge a person’s spatial awareness, self control and dexterity skills. Alcohol decreases an individual’s aptitude in these areas, so a field sobriety test can help law enforcement determine if an individual has been drinking. Popular field sobriety tests include the walk-and-turn test, horizontal gaze nystagmus (a simple test that measures the smoothness of your eyes moving from left to right) and the one-leg stand test. A breathalyzer performed on the side of the road during a traffic stop can be part of a field sobriety test, however, non-commercial drivers license holders are not required by law to take a breathalyzer test when pulled over for suspicion of an OWI.


On the other hand, those with a commercial drivers license are required to participate in a field sobriety test. By law, commercial drivers license holders are held to a higher standard. Even if an individual with a commercial drivers license is not driving a commercial vehicle, the individual is still held to this higher standard and is required to perform a field sobriety test.

However, if you do not have a commercial drivers license and choose to refuse a field sobriety test, do not expect to get off scot-free.


What happens when you refuse a field sobriety test?

If You Refuse a Field Sobriety Test, Prepare to Be Placed Under Arrest

For law enforcement professionals, a field sobriety test can demonstrate that a driver is not intoxicated. If the driver refuses to participate in a field sobriety test, the law enforcement officer may not be able to determine the driver’s sobriety and therefore may place the driver under arrest. If this happens, it’s important for the driver to know that they have not been convicted of a crime and to stay calm.


Once in custody, you don’t have the right to refuse chemical testing

Although you are not required by law to participate in a breathalyzer or any other part of a field sobriety test while pulled over on a Wisconsin public roadway, once arrested, you are required to take a chemical test of your blood, breath, or urine. The law changes when on the road versus in the police station because of Wisconsin’s Implied Consent Law.


Wisconsin’s Implied Consent law, explained

When referring to alcohol concentration tests, the Implied Consent law refers to the important precedent that driving is not a right, but a privilege. Because driving is not considered a right, vehicle operators are considered to have “implied consent” and agreed to obey the rules of the road, at risk of that privilege being taken away. In Wisconsin, drivers are subject to breath, blood and urine tests to determine sobriety under the Implied Consent law.


What happens if I refuse testing when in custody?

Penalties for refusing to take a blood, breath, or urine test when in custody can be severe - sometimes more severe than a first-offense OWI. Penalties can include a one-year revocation of your driver’s license or the installation of an ignition interlock device in your vehicle, which measures your Blood Alcohol Concentration (BAC) levels before allowing you to start your vehicle. Additionally, refusal to take a breathalyzer test at the police station may be used as evidence against you by opposing counsel if the case goes to court.


Consult an Attorney

For all but the simplest OWI cases, consulting a lawyer can be a resource that provides you with guidance that can seriously affect the court proceedings, and as a result, your future. If you are facing an OWI or DUI charge, Everson Law has a wide breadth of experience and knowledge that you can take advantage of. Contact Everson Law today to schedule a consultation with one of the lawyers with OWI case experience.