Understanding Your Right to Refuse Field Sobriety Tests in Wisconsin

"Relax."

That’s probably not your first thought when pulled over on suspicion of drunk driving or operating under the influence of drugs or alcohol in Wisconsin—but it’s exactly what you should do.

Your actions during a traffic stop can directly influence the outcome of the stop, the strength of your legal case, and potentially your freedom. Remaining calm, polite, and clear-headed allows you to protect your rights and avoid unnecessary complications.

In this very quick guide, you'll learn three crucial insights about OWI traffic stops in Wisconsin:

1. Why police choose to stop your vehicle.

2. The tools police use to gather OWI evidence against you.

3. Your important legal right during OWI stops that many overlook.

If you found this guide because you or a loved one was charged with OWI or a similar charge in Wisconsin, use the button below and elsewhere in this guide to contact Stangl Law Offices as soon as possible. The sooner an experienced OWI attorney is informed about your charges, the more likely it is that they can prepare for a successful outcome.

Answering Frequently Asked Questions About FSTs in Wisconsin

Before we dive in, we know most people find this guide because they have a specific question they want answered clearly. Here are the questions that bring people here the most, with concise answers to each.

• Are field sobriety tests mandatory in Wisconsin? No. For most drivers, field sobriety tests (the eye-movement, walk-and-turn, one-leg-stand, and roadside breath tests an officer may request before an arrest) are strictly voluntary. You may decline to perform them without incurring a separate penalty. The key exception is for commercial driver's license (CDL) holders, who are required to comply if an officer lawfully requests the tests.
• What exactly is a “field sobriety test”? Wisconsin police commonly use three standardized coordination tests—the Horizontal Gaze Nystagmus, Walk-and-Turn, and One-Leg Stand—plus a roadside preliminary breath test (PBT). Officers look for balance problems, eye “jerking,” and difficulty following instructions to decide whether there is probable cause for an OWI arrest.
• Why do officers ask drivers to perform these tests? Because they have not yet proven impairment. The roadside tests give police quick, visible clues—slurred speech, poor balance, failure to follow multi-step directions—that they can document and later use in court to justify the arrest and support an OWI charge.
• Can refusing a field sobriety test help my case? Often, yes. Field sobriety tests are imperfect and subjective. Uneven pavement, nerves, fatigue, or medical issues can make a sober driver “fail.” By politely refusing, you withhold that potentially damaging (and contestable) evidence. Remember that you will almost certainly be arrested anyway, but the officer must then rely on more objective chemical testing at the station.
• Will I still have to take a breath, blood, or urine test if I refuse the roadside tests? Yes. Wisconsin’s implied-consent law requires every driver, once lawfully arrested on suspicion of OWI, to submit to an evidentiary chemical test (breath, blood, or urine). Refusing that post-arrest test triggers automatic license revocation and other penalties, unlike refusing the pre-arrest field tests.
• What happens immediately after I refuse the field tests? The officer will usually arrest you and transport you for a chemical test. Although an arrest is stressful, the absence of roadside-test results can give your attorney more room to challenge the state’s evidence later.
• Does passing the field tests get me off the hook? Not necessarily. Even a “pass” does not prevent an officer from requesting a PBT or making an arrest if other clues (odor of alcohol, admission of drinking, erratic driving) point toward impairment. Once arrested, you are still subject to the mandatory chemical test.
  
• Are the penalties different for CDL holders? Yes. CDL drivers must submit to field sobriety and preliminary breath tests upon request, even when driving a personal vehicle. A refusal is considered a violation that can jeopardize commercial driving privileges.
• If I decline the tests, what should I say to the officer? Remain calm, be polite, and simply state: “Officer, on the advice of counsel, I respectfully decline to perform any field sobriety tests.” Avoid arguments or rude behavior; anything you say or do will be noted in the arrest report.
• When should I call an attorney? Immediately. OWI cases move quickly, and early legal guidance can protect your driving privileges and shape a stronger defense. Contact us for a free consultation.

Stay Focused and Aware

Traffic stops are stressful, but you have more control than you think.

Remember: at the moment you're pulled over, the police officer only suspects you're impaired—they haven't proven it.

However, officers will immediately start assessing your behavior, appearance, and responses to find evidence of impairment. Every question asked aims to confirm their suspicion and potentially prompt a self-incriminating statement.

Stay calm. You are not guilty of anything yet. By staying composed, you can maintain control and protect your rights.

Why Did the Police Pull Me Over?

Police can't instantly know if a driver is intoxicated, so they rely on observing suspicious driving behaviors, such as swerving or erratic speeds. Being pulled over doesn't mean you're guilty of OWI—it means the officer wants to investigate further.

If you’re pulled over:

• Pull over safely.

• Take a deep breath.

• Stay calm and polite.

Police will now seek evidence to justify an OWI arrest. They rely heavily on your cooperation to gather evidence against you. If you have been arrested for OWI or a repeat offense of driving under the influence in Wisconsin, contact an experienced and aggressive OWI attorney as soon as possible.

How Do Police Prove Drunk Driving in Wisconsin?

Police officers in Wisconsin often use special tests called field sobriety tests (FSTs). These tests help police see if someone has been drinking alcohol and might not be safe to drive.

Here are the most common tests they use:

1. Horizontal Gaze Nystagmus (HGN)

In this test, the police officer asks the driver to follow a pen or small light using only their eyes. The officer moves it slowly side to side. Normally, your eyes move smoothly. But if someone has been drinking alcohol, their eyes can shake or jerk a little bit. Police watch for this shaking, which could show the driver has been drinking.

2. Walk-and-Turn (WAT)

In this test, the police officer asks the driver to walk in a straight line, heel-to-toe, for nine steps. Then, they must turn around and walk nine steps back the same way. This tests whether the driver can keep their balance and follow simple instructions. People who are drunk often have trouble walking straight or remembering directions.

3. One-Leg Stand (OLS)

Here, the officer asks the driver to stand on one leg, with the other leg lifted about six inches off the ground. The driver must hold this position and count out loud for about 30 seconds. The officer checks if the driver can balance without wobbling or putting their foot down. If someone has had alcohol, they might lose balance or sway.

4. Preliminary Breath Test (Breathalyzer)

This test involves the driver blowing air into a small breathalyzer machine. The machine measures how much alcohol is in a person’s breath, which tells police how much alcohol is likely in their blood. If the number is high, it shows the driver has been drinking too much to drive safely.

Read more: Checklist: What to Do if You're Pulled Over for OWI in Wisconsin

Understanding Your Right to Refuse Field Sobriety Tests in Wisconsin

One of the most effective tools police use in building OWI cases is your voluntary participation in field sobriety tests.

Yet, most people don't realize they have the legal right to refuse field sobriety tests.

"Many people in Wisconsin, if they're pulled over for suspicion of operating while under the influence of an intoxicant don't realize that they are not legally required to do field sobriety tests." — Attorney Patrick Stangl

Because field sobriety tests' results are notoriously subjective and inaccurate, participating in them can worsen your legal case. If you are facing OWI charges in Wisconsin, you should consult with a knowledgeable and proven criminal defense attorney as soon as you are able.

If You Pass a Field Sobriety Test, Do You Have to Take a Breathalyzer?

Passing FSTs doesn't necessarily exempt you from a breathalyzer test. Wisconsin's implied consent laws require chemical testing (breath, blood, or urine) if police have probable cause to suspect OWI.

Key points to remember:

• Passing FSTs does not automatically mean you're clear from further testing.

• Refusing a breathalyzer post-arrest results in automatic penalties, including license suspension.

So, What Happens If You Refuse Field Sobriety Tests?

Field sobriety tests aren't scientifically precise and can produce inaccurate or misleading results due to various factors, such as uneven pavement, poor lighting, nerves, fatigue, or pre-existing medical conditions, which can cause even sober drivers to appear impaired.

If you choose to refuse FSTs, it's crucial to remain respectful and calm when doing so. Politely inform the officer that you're exercising your legal right not to participate. Remember that refusing these tests will likely lead to your immediate arrest—but importantly, cooperating and participating in the tests usually results in arrest anyway, only with additional subjective evidence stacked against you.

By refusing, you prevent potentially flawed evidence from being collected at the roadside. Instead, the officer will transport you to the police station, where you will undergo chemical testing (breath, blood, or urine). These chemical tests are far more scientifically reliable and objective than roadside assessments.

While refusing roadside sobriety tests might feel intimidating, you might actually place yourself in a better legal position by limiting evidence that could negatively impact your defense. Regardless, if arrested for OWI or DUI in Wisconsin, it's essential you contact an experienced OWI defense attorney immediately to protect your rights and build a strong defense.

FREE 10-Minute Consultation

Wisconsin Attorney Pat Stangl, with offices in Madison and Hayward, specializes in aggressive defense for clients charged with OWI, DUI, DWI, BAC, PAC, drug possession and other criminal offense charges. Click the link below to get a FREE 10-minute consultation with Attorney Stangl, at no obligation.