Should you refuse a breathalyzer?

The Wisconsin Implied Consent Law allows a police officer to ask for a sample of your breath, blood or urine if they have probable cause to believe that you are operating while under the influence of alcohol or some other drug. Should you refuse a breathalyzer test?

The law requires that they read you a warning before you consent or refuse to provide the sample. The warning states, among other things, that if you refuse, your license will be revoked for a period of one year, and that your refusal can be used against you in court.

Refusing is also considered to be an “aggravating factor.” If you are facing jail time because you have a prior OWI on your record, the refusal may cause the court to give a significantly longer jail sentence. For example, on a third-offense OWI, a guideline sentence of 90 days will be increased to 360 days based upon the presence of a refusal.

Does it make sense to refuse?

No. There is nothing to be gained under the current state of the law by refusing.

If you refuse a breathalyzer, you make the situation much worse, and the police officer will simply get a search warrant and take the sample by force. In that case, you have created an “aggravating factor,” and the police still get the evidence. You come up on the short end of the stick.

Even if you beat the OWI case, the refusal will stay on your record. It will also serve as a “prior conviction” should you get another OWI.

If you did refuse, you have the right to contest the refusal allegation.

If you can demonstrate that police did not have probable cause to arrest you, or that they failed to comply with the warning requirements, you may be able to get the refusal allegation dismissed. You have 10 days from the date of the refusal to request a hearing. If you do not request a hearing, you cannot challenge it. 

If you have an OWI case and you refused, contact Racine OWI attorney Robert W. Keller for a free consultation.

Contact Robert W. Keller for a Free Consultation

Mr. Keller helped me get a 15 day sentence for my second OWI with a .21 BAC. After serving 48 hrs, I was released for the remainder of the sentence on the electronic monitoring program. Needless to say, I was very fortunate to have Mr. Keller as my attorney. He told me exactly what to expect and helped me prepare for sentencing, which explains the relatively short sentence.

— Anonymous

Robert Keller is an excellent, intelligent, lawyer who fought on my behalf and was very professional. He is at your service and will answer all questions and was confident and honest with what he felt the outcome would be. I wouldn’t suggest anyone else.

— Anonymous

Robert Keller truly is a trustworthy lawyer in the Racine area. He is well respected in the courtroom and does a fantastic job throughtout the whole courtroom process. There is not enough I can say to anyone in need of a great counselor other than Robert Keller is the lawyer I would turn to.

— Anonymous