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THE STANGL LAW BLOG

3 Steps To Take During A Traffic Stop To Avoid Self-Incrimination For OWI

Posted by Attorney Stangl on April 3, 2013

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If you believe you’ve been stopped for OWI, you can expect to be asked a number of questions regarding your current state of sobriety as well as any recent activities prior to using your vehicle.

Keep these three steps in mind during the traffic stop.

1. Prepare For The Officer’s Initial Questioning Upon Approaching Your Vehicle

To avoid self-incrimination if you believe you are over the legal limit, politely inform the officer that you do not wish to answer any questions before speaking with an experienced OWI attorney.

Although you are required to surrender your driver’s license and vehicle registration upon request, it is acceptable and most likely prudent to remain silent.

2. Refuse To Participate In The Field Sobriety Test (FST) And Preliminary Breath Test (PBT)

If you believe you may be over the legal limit, it is in your best interest to decline a FST.

Although you may feel physically capable of passing the test, you will most likely be subjected to assessments measuring involuntary actions out of conscious control. An examination of the eyes for horizontal gaze nystagmus, or the inability to smoothly follow a moving object while staring at it, is a common test of this kind.

Wisconsin law allows for the refusal of FSTs and PBTs without penalty of license revocation or citation for refusal. Although some tests are refuted as viable evidence by the medical community, they are admissible as evidence in Wisconsin courts.

3. Evaluate The Consequences Of Further Refusal

By refusing to answer questions and participate in both the FST and PBT, the officer will most likely be highly suspicious of intoxication beyond the legal limit and therefore continue with a chemical test. In Wisconsin, this comes in the form of either a breath or blood test. The person being tested does not have a choice of which test they will be given––this decision is made by the officer.

When deciding whether agreeing to the test is in your best interest or not, it’s necessary to weigh the automatic consequences of refusal by considering prior infractions versus the consequences of an OWI penalty.

If you have not received prior violations, refusal to participate in a chemical test is considered a civil proceeding and does not automatically lead to jail time. However, if you have received prior violations, the present violation will then count as a second offense, thus making it a crime.

If you have no prior infractions, refusing the test will result in license revocation for at least one year, as well as the possibility of your refusal being used in court as a “consciousness of guilt,” ultimately ending in a possible OWI conviction even without chemical testing.

If you accept the test and fail, Wisconsin law permits you to take the alternative test as well, which is highly advisable given the possibility for another result.

Be aware that Wisconsin Circuit Courts have held that forced blood draws can be conducted by police under certain circumstances. In the event that you fail a chemical test, you can be charged with a separate Prohibited Alcohol Content infraction.

Being aware of your rights during a traffic stop in conjunction with an understanding of the consequences your actions have on the situation’s outcome is perhaps the most useful knowledge to employ when faced with traffic stops of any kind.

To schedule a FREE consultation with experienced Madison OWI lawyer Attorney Patrick Stangl, click here now.

Topics: Drunk Driving Charges (OWI)

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