What is Implied Consent in Wisconsin?

Posted by Attorney Stangl on February 12, 2016


You've just been arrested for impaired or drunk driving in Wisconsin and are facing charges for operating while intoxicated (OWI). A lot has happened quickly and now you're left to choose your next step to help you defend against OWI charges. Stangl Law understands you have questions.

"What is 'Implied Consent?'"

"Will I go to jail for OWI?"

"What if I was driving under a suspended license?"

"How can I beat drunk driving charges?"

"How will an OWI offense impact my insurance?"

It's important to get answers to your questions right away from a knowledgeable attorney in order to start your defense against DUI, OWI, DWI, BAC and PAC charges in Wisconsin.

Let's focus on consent to testing for intoxication here.

Did I have to Perform Field Sobriety Tests in Wisconsin?

When law enforcement suspects a driver is intoxicated, they will pull that driver over to try to verify their suspicions.

As part of their process of trying to determine whether or not you are under the influence of alcohol or drugs, they may ask you to perform various tests, called Field Sobriety Tests (FST). These can include walking a straight line heel to toe, reciting the alphabet, touching your finger to your nose and many other exercises.

[15 Ways to Beat a Drunk Driving Case in Wisconsin]

What you may not know is that you are not required by law to perform any of these tests. You absolutely may refuse; it is your right. It is always in your best interest to be polite to the police, including when refusing FST.

(Please note, if you are a commercial driver and are pulled over while operating under your CDL, you are required to submit to this testing as part of the terms of your license.)

While drivers are not required by Wisconsin law to submit to Field Sobriety Tests, if you are arrested for OWI chemical testing will then be required and covered under Implied Consent.

If you were arrested for OWI and have charges pending against you in Wisconsin, you should contact an experienced attorney to help with your defense.

What is Implied Consent in Wisconsin?

Not all testing for intoxication is optional under Wisconsin law. If you're wondering, "Do I have to take a breathalyzer test," the answer is yes.

Every driver in Wisconsin who had been issued a driver's license is considered by state law to have already consented to chemical testing of their blood, breath or urine if arrested on suspicion of operating a motor vehicle under the influence of an intoxicant.

The Wisconsin State Statues clearly explain the concept of implied consent.  

Under Wisconsin Statute 334.305, Implied Consent gives law enforcement the right to test all licensed drivers for intoxicants:  

(2) Implied consent. Any person who is on duty time with respect to a commercial motor vehicle or drives or operates a motor vehicle upon the public highways of this state, or in those areas enumerated in s.346.61, is deemed to have given consent to one or more tests of his or her breath, blood or urine, for the purpose of determining the presence or quantity in his or her blood or breath, of alcohol, controlled substances, controlled substance analogs or other drugs, or any combination of alcohol, controlled substances, controlled substance analogs and other drugs, when requested to do so by a law enforcement officer under sub. (3) (a) or (am) or when required to do so under sub. (3) (ar) or (b). Any such tests shall be administered upon the request of a law enforcement officer. The law enforcement agency by which the officer is employed shall be prepared to administer, either at its agency or any other agency or facility, 2 of the 3 tests under sub. (3) (a), (am), or (ar), and may designate which of the tests shall be administered first.  

You will not have a right to contact an attorney before testing will be administered. Try to stay calm and be polite during this process, then request to contact a Wisconsin OWI attorney as soon as you are able.

What if I Refused Chemical Testing when I was Arrested for OWI in Wisconsin?

If you chose not to submit to blood testing, breath testing or urine testing after you were arrested, it is crucially important for you to contact a Wisconsin attorney specializing in OWI defense right away.

By refusing chemical testing, which Implied Consent gives law enforcement the right to administer with or without your consent, you have essentially added another charge of "Refusal" to your case, which can be more serious than a first offense OWI.

Refusal is also admissible against you in your case as proof of guilt.

Refusing testing covered under Implied Consent in Wisconsin will usually not help your case and can carry serious penalties.

For example, penalties for refusal to submit to chemical testing begin with suspension of your driver's license for up to a year for a first offense and get increasingly severe from there.

If you chose not to consent to testing after your OWI arrest, even if you changed your mind and later agreed to testing, you should consult with an experienced attorney immediately.

What Are Implied Consent Warnings?

While a police officer has the right to test your blood, breath or urine if you are a licensed driver in the state of Wisconsin, that officer is also required by state law to properly advise you of the consequences of refusing to take a chemical test.

The test also must be administered correctly. In Wisconsin and some other states, failure of the officer to give you proper notice or failure to correctly administer the testing may invalidate a driver's license suspension based upon a refusal to provide a sample for breath, blood or urine testing.

If you believe you did not receive proper notification concerning your chemical tests for BAC during your OWI arrest, or believe the test was not properly administered, it is in your best interest to contact an attorney specializing in OWI immediately.

Free Consultation with Madison OWI Attorney, Pat Stangl

If you're facing an OWI charge in Wisconsin, or have questions or concerns regarding another legal matter, it is important to contact an experienced attorney as soon as possible.

For a free 15 minute consultation with Patrick Stangl, click here.

Topics: Drunk Driving Charges (OWI)



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