When the police pull you over after a night out, you might wonder whether refusing a breath test is an option. The short answer is yes, but doing so significantly affects your defense in court. This blog explains what the consequences are and what happens next.
The role of Wisconsin’s implied consent law
The state operates as an implied consent state. This means that when an officer arrests you for Operating While Intoxicated (OWI), you automatically agree to submit to a chemical test. It is important to note that this requirement applies only after an arrest, though exceptions exist for serious accidents involving injury or death.
The difference between roadside and station tests
The following are the two types of tests you may encounter:
- The Preliminary Breath Test (PBT): You might recognize this as the roadside breath test. The officer mainly uses it to establish probable cause for arresting you.
- The Evidentiary Test: This is a test conducted after an arrest, usually at the station or a hospital. This test falls squarely under the implied consent law.
While the PBT is generally voluntary under Wisconsin law, refusing the evidentiary test triggers automatic penalties, including driver’s license revocation.
Officers must also read the “Informing the Accused” form, which explains the specific consequences of refusal before administering this mandatory evidentiary test.
The penalties you might face
You can expect the following if you refuse a chemical test:
- First refusal: One-year license revocation, mandatory ignition interlock device (IID) installation and a 30-day waiting period before applying for an occupational license.
- Second refusal: Two-year license revocation, IID requirement and a 90-day waiting period for an occupational license.
- Third or subsequent refusal: Three-year license revocation, IID requirement and a 120-day waiting period for an occupational license.
If you had a passenger under age 16 in the vehicle at the time of the incident, the length of the license revocation can double.
You also only have 10 days from the date you receive the Notice of Intent to Revoke, which is usually given to you during the arrest, to request a court hearing to contest these penalties.
It might not help your case if you refuse
Some drivers believe that refusing a breath test eliminates evidence and makes it harder for prosecutors to build a case. While this thinking may seem logical, it can backfire.
Prosecutors can use your refusal of the mandatory evidentiary test as evidence against you at trial. Courts often view this refusal as an indicator of consciousness of guilt, suggesting you declined because you knew you were intoxicated. This negative inference can be just as damaging to your defense as a failed test result.
