If a cop stops you because she believes you have been drinking and are now driving, they are going to ask you to submit to a breathalyzer or a blood test. You can choose the breathalyzer or choose not to, so maybe you should understand the consequences of your choice. That’s why Paul Ksicinski wanted to discuss if you should agree to a breathalyzer.
In Wisconsin many motorists get the idea from TV or friends that refusing a breathalyzer or chemical test allows them to avoid a DUI charge. Drivers mistakenly believe that denying an officer breathalyzer results will prevent them from being charged with a DUI. False. Sometimes refusing a breathalyzer or chemical test can result in additional charges and penalties. Refusing the test does not guarantee that you won’t be convicted – you could be found guilty of a DUI even if your refusal means that the state does not have proof that your BAC was over.08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DUI.
Incidentally, Wisconsin’s legal limit is .08 for first, second, and third offense OWI. The legal limit will remain .02 on fourth and subsequent offenses. A .02 level is the functional equivalent of absolute sobriety. This essentially means that on a fourth offense, a person weighing less than 190 pounds, cannot legally drive after having one drink. A drink is equivalent to a 12-ounce bottle of beer, a 5-ounce glass of wine, or 1.5 ounces (a standard shot) of 80-proof liquor.
Wisconsin law, Wisconsin Statutes Annotated 343.305, requires you to take a blood, breath, or urine test if you are arrested for a DUI. Wisconsin’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence, then you consent to taking one or more chemical tests of your blood, breath, or urine for the purpose of determining your blood alcohol content (BAC). The test or tests must be taken as soon as possible from when you were last driving and you cannot refuse without penalty. The officer gets to choose how many and which tests you take. Implied consent laws require motorists to participate in breathalyzer tests if asked by an officer, or their license will be automatically suspended for one year. You must wait 30 days before applying for an occupational license.
Once you are arrested, the officer must tell you that if you refuse to take a chemical test, then your license will be suspended and evidence of your refusal can be used against you in court. The officer must also warn you that if you choose to take a test and your results are at or above the legal limit, your license will be suspended and you face other penalties once you are convicted of a DUI or OWI. After you submit to the officer’s test, you have the right to additional tests taken by a medical professional of your choice.
This law also applies even if you are not actually driving a car. In Wisconsin, you could be arrested and asked to take a chemical test if you are operating a vehicle while intoxicated (OWI). Generally, operating a vehicle means that the driver has the power to make the car move. For example, a driver realizes he has had too much to drink so he pulls over to sleep it off, but he leaves the motor running and heater on. The officer finds him, wakes him up, smells alcohol on his breath, and arrests him. Although the car was not moving, the law still punishes this behavior because the driver could have woken up and driven away while still drunk. To read more about this, see the case Milwaukee County v. Proegler, 291 N.W. 2d 608 1980.
In this respect, the law does not specifically prohibit driving “drunk”; but more accurately prohibits driving under the influence, which is commonly referred to as “OWI” for operating while impaired or operating while intoxicated. Note that it is not necessary for an officer to actually see a person driving to being able to stop him or her for OWI. It is enough that a person has either turned on the ignition or has left the motor running while the vehicle is in the park position. In fact, the statutory definition of operation is “the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.” Further, the fact that a vehicle may be immobile due to engine problems or being stuck on a mound of dirt with the wheels spinning does not preclude an officer from arresting the driver for OWI.
You could be asked to take a preliminary breath test even before you have been arrested. This works like a field sobriety test. The officer will use the results to establish probable cause that you were driving under the influence. You do not have to take this preliminary test. Refusing it, however, probably won’t work in your favor if the officer has some other reason to think you had been drinking. Based on that other reason, the officer could still arrest you and then you will be required to take a test under the law described above.
Paul A. Ksicinski can work for you to get the penalties for your OWI conviction in Wisconsin dismissed or lowered.
Unfortunately, when you are sitting on the side of the road, you have to make a split decision about agreeing to a breathalyzer. It’s a hard decision to make and one that depends on several factors. For instance, if your blood alcohol concentration is high; you may be better off with an implied consent charge as opposed to an aggravated DUI depending on your blood alcohol level.
Under some circumstances, it is better to be charged with refusing sobriety tests than to be accused of a DUI. For instance, if you have a very high blood alcohol concentration, you may be better off with an implied consent violation than with a DUI charge. On the other hand, if our BAC was borderline and you could avoid a conviction with a solid defense, you may fare better submitting to a breathalyzer.