Are field sobriety tests mandatory in Wisconsin?

You are not required to answer potentially incriminating questions. Politely say, “I would like to speak with an attorney before I answer any questions.” This is an appropriate reply, although you are not entitled to counsel during a roadside stop unless you are in custody and questioned. Saying that you had one or two beers is not incriminating, is not sufficient to cause intoxication, and may explain the odor of alcohol on the breath.

There are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus, alphabet recital, modified position of attention (Rhomberg), fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three to five such tests.

Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FSTs. The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence that the suspect inevitably “fails.” Politely refuse to do any and all FSTs.

In Wisconsin, the police want you to submit to FSTs for two reasons. First, by submitting to the tests you are giving the officers facts to support a legal basis for arrest. This legal standard is probable cause. Secondly, the FSTs are used as evidence to prove the OWI charge. A chemical test result is not necessary to prove the elements of the OWI offense. That is why politely refusing all FSTs and not blowing into a handheld breath testing device in the field called a preliminary breath test or PBT is your best initial defense.

The law varies on this issue from state to state. In Wisconsin, there is no right to an attorney until you have submitted to (or refused) blood, breath, or urine testing once you are in custody and subject to questioning.

You are not legally required to submit to Field Sobriety Tests (FSTs) and it is not in your best interest to do so. Your license cannot be revoked nor can you be cited for a refusal if you politely refuse to do FSTs.

The traditional symptoms of intoxication taught at the police academy are:

Flushed face; red, watery, glassy, and/or bloodshot eyes; odor of alcohol on breath; slurred speech; fumbling with wallet trying to get license; failure to comprehend the officer’s questions; staggering when exiting vehicle; swaying/instability on feet; leaning on car for support; combative, argumentative, jovial or otherwise “inappropriate” attitude; soiled, rumpled, disorderly clothing; stumbling while walking; disorientation as to time and place; inability to follow directions.

This is the “horizontal gaze nystagmus” test, a relatively recent development in OWI investigation. The officer attempts to estimate the angle at which the eye begins to jerk. “Nystagmus” is medical jargon for a distinctive eye movement or oscillation. If this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eye’s tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.

This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer’s ability to recognize nystagmus and estimate the angle of onset. Because the medical community does not accept the test, it is not admissible as evidence in many states; it continues, however, to be widely used by law enforcement. It is admissible in Wisconsin and is subject to the weight the fact finder is willing to give it subject to cross-examination.

The following is a list of things officers consider when searching for drunk driving, in order of probability that the driver is intoxicated. This list is based upon research conducted by the National Highway Traffic Safety Administration.

• Turning with a wide radius
• Straddling center of lane marker
• “Appearing to be drunk”
• Almost striking object or vehicle
• Weaving, swerving or drifting
• Driving on other than designated highway
• Speed more than 10 mph below limit
• Stopping without cause in traffic lane
• Following too closely
• Tires on center or lane marker
• Braking erratically
• Driving into opposing or crossing traffic
• Signaling inconsistent with driving actions
• Slow response to traffic signals
• Stopping inappropriately (other than in lane)
• Turning abruptly or illegally
• Accelerating or decelerating rapidly
• Headlights off

The consequences of refusing to submit to a blood, breath or urine test varies according to the state. In Wisconsin, there are three adverse consequences:

Your driver’s license will be revoked for at least one year and up to two years depending on whether you have any prior convictions. A refusal violation, at this time, is a civil proceeding and is not a crime. Thus you cannot be sent to jail for a refusal. However, a refusal can be counted as a prior conviction for purposes of charging you with a subsequent enhanced offense. For example, if you had a refusal violation in 1995 and are cited for an OWI or PAC violation in 2004, it will be charged as a second offense, which is a crime.

Finally, the fact of refusal may be introduced into evidence at trial on the OWI charge as “consciousness of guilt.” Of course, the defense is free to offer other reasons for the refusal. Thus, the decision is one of weighing the likelihood of a high blood-alcohol reading against the consequences for refusing.

In Wisconsin, you do not have a choice of a blood, breath, or urine test. Rather, the arresting agency determines what their primary test will be—blood or breath. While the law allows for urine tests, due to their unreliability, they are not used in Wisconsin. Since you don’t have a choice of tests, the question becomes the chance of registering a high BAC-Blood/Breath Alcohol Concentration against the consequences for refusing. If you submit to the primary test offered by the arresting agency, you have the absolute right to the alternative test free of charge. The officer cannot interfere with your right to that alternative test or it can lead to suppression of the test results. You should always request the alternative test.

No. The officer is supposed to give a 5th Amendment warning once you are in custody and questioned. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest in its case at trial.

Of much greater consequence is the failure to advise you of the standard “implied consent” law – that is, your legal obligation to take a chemical test and the results if you refuse. In Wisconsin this information is contained on a pink sheet which is called “The Informing the Accused.” This can affect the suspension and revocation of your license.

In Wisconsin, the traditional offense is “operating under the influence of an intoxicant” (OWI). In recent years, however, 49 states have also enacted a second, so-called “per se” offense: driving with an excessive blood alcohol concentration (either .08%–as in Wisconsin–or .10% in some other states). In Wisconsin, BOTH offenses are charged unless a person refuses the chemical test; however, forcible blood draws are permissible under certain circumstances in Wisconsin and can still result in a PAC charge even if you initially refuse.

Agreed, it is blatantly unfair. But the law in most states (including Wisconsin) having a “per se” statute (see question above) provides for immediate suspension and confiscation of the license if the breath test result is above the legal limit (or, in the case of a blood test once the result shows a prohibited concentration).

Warning: Be aware of the 10-day deadline for requesting a hearing on the suspension. Once a prohibited concentration is registered, you should receive a yellow sheet of paper which needs to be filled out to request an administrative hearing. We may be able to get your license reinstated pending the resolution of the charges.

You can represent yourself, but it is not a good idea. Drunk driving is a very complex area of the law with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing, and administrative license issues.

What can a lawyer do? Nothing (or worse) if he is not qualified in this highly specialized field—no more than a family doctor could help with brain surgery. A qualified attorney, on the other hand, can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, and win trials and refusal hearings.

The best way to find a good DUI/DWI lawyer is by reputation. There are attorneys who have state and national reputations; these, of course, are expensive.

An excellent indication of quality and experience is membership in the National College for DUI Defense. Completion of that organization’s interactive three-day seminar presented at Harvard Law School every year is another clear sign of expertise.

When you meet with an attorney, make sure of three things:

• He or she has extensive experience in OWI and criminal litigation.
• He or she has a reputation for going to trial in appropriate cases and winning, rather than just “pleading out” his or her clients.
• The financial terms of representation are clear.

This varies, of course, by the reputation and experience of the lawyer and the geographic location. Generally, the more skilled the attorney and the larger the city, the higher the fee. A related factor is the amount of time a lawyer devotes to his cases: the better lawyers take few clients, spending more hours on each.

The range of fees is significant. An OWI specialist with a statewide reputation for winning may charge five to ten thousand dollars or more, depending on the facts. In addition, the fee may vary by other factors, including:

• Whether the crime is a misdemeanor or felony
• Whether prior convictions are alleged
• Whether there will be a trial or an appeal
• Administrative license suspension procedural costs
• Whether the lawyer charges a fixed flat fee or retainer in advance, to be applied against hourly charges
• Costs of expert witness fees, independent blood analysis, subpoena services, etc.

This varies according to the laws of the state and the customs of the local jurisdiction. In Wisconsin, a conviction for a first offense is a civil violation and involves a forfeiture, revocation, mandatory AODA Assessment, and perhaps attendance at a Victim Impact Panel.

For a second offense, the penalties upon conviction range from a minimum mandatory penalty of five days and up to six months in jail. Punishments include a fine range from a minimum $350.00 to $1,100.00, plus costs and administrative surcharges, as well as a mandatory AODA Assessment. Ignition interlock devices can also be ordered. The greater the number of prior convictions, the greater the jail and/or prison term that can be imposed.

In Wisconsin, for purposes of evaluating prior convictions, a ten-year window is used; however, this window will not extend before January 1, 1989 for second offenses. For purposes of evaluating prior convictions for a third or greater offense, the prosecution can go back throughout a lifetime.

If convicted of an OWI offense in Wisconsin, that conviction now remains on your driving record abstract for life.

Most states including Wisconsin increase the punishment in drunk driving cases if certain facts exist. The most common of these is an earlier conviction for the same or similar offense, usually within ten years for a second offense or lifetime for a third or greater offense. Other commonly encountered enhancements (which must usually be alleged in the complaint) include:

• A child under the age of 16 was in the car at the time
• The blood-alcohol concentration was over 20%.
• The defendant refused to submit to a chemical test
• There was property damage or bodily injury

It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of driving, not at the time of being tested. Since it takes between 30 minutes and 3 hours for alcohol to be absorbed into the system, an individual’s BAC may continue to rise for some time after he is stopped and arrested.

Commonly, it is an hour or more after the stop when the blood, breath, or urine test is given to the suspect. Assume that the result is .10%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .07%. In other words, the test shows a blood-alcohol concentration above the legal limit, when his actual BAC at the time of driving which is what must be proved was below the legal limit.

“Mouth alcohol” refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes the breath from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. This is known as a “portion ratio.” Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than the lungs can have a significant impact.

Mouth alcohol can be caused in many ways. Belching, burping, hiccupping, or vomiting within 20 minutes before taking the test can bring vapor from the alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine’s reading way up (such products as Bianca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood from the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic “reflux” condition from gastric distress or hiatal hernia can cause elevated BAC readings.

Potential defenses in any given drunk driving case are almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:

• Driving. Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of some accidents, there are no witnesses to his being the driver of the vehicle.
• Probable cause. Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain, or (c) arrest the person being charged. Sobriety roadblocks present particularly complex issues.
• Miranda. Incriminating statements may be suppressed if warnings were not given at the appropriate time.
• Implied consent warnings. If the officer did not properly advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, in some states (including Wisconsin) this may invalidate a DMV license suspension based upon a refusal to provide a breath/blood sample.
• “Under the influence.” The officer’s observations and opinions as to intoxication can be questioned. The circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as “failing” may be challenged. Also, witnesses can offer their opinion that you appeared to be sober.
• Blood-alcohol concentration. There exists a wide range of potential problems with blood, breath, or urine testing. For example, a non-specific analysis: most breath machines will register many chemical compounds found on the human breath as alcohol. Breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and with a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state’s expert witnesses and/or the defense can hire its own forensic chemist.
• Testing during the absorptive phase. The blood, breath, or urine tests can be unreliable if done while you are still actively absorbing alcohol (it takes 30 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking “one for the road” can cause inaccurate test results.
• Retrograde extrapolation. This refers to the requirement that the BAC be “related back” in time from the test to the actual driving. Again, a number of complex physiological problems are involved here.
• Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath, or urine test complied with state requirements as for calibration, maintenance, etc.
• License suspension hearings. A number of issues can be raised in the context of an administrative hearing before the state’s department of motor vehicles.