All too often, a person who has been stopped and cited for Operating a Motor Vehicle While Intoxicated, is perplexed to find that he or she has also been issued a citation for refusing to submit to a breath, blood or urine test. In this situation, a client will often ask me: “Why are they saying I refused? I blew into the device the first time they asked me to. I don’t see why I should have to do it a second time?” Hopefully this post can clear up the confusion surrounding when you can, and when you cannot, refuse to provide a requested evidentiary breath or blood sample.
IMPLIED CONSENT LAW:
Wisconsin law requires that a person who is placed under arrest for operating a motor vehicle while intoxicated provide a sample of either breath, blood or urine, upon request from a law enforcement officer. At the time the request is made, the officer must read an approved script, often referred to as the “Informing the Accused” form to an individual. If, after being read this script, you refuse to provide the sample, you will be issued a refusal citation, which carries with it a mandatory license revocation and a mandatory installation of an Ignition Interlock Device (IID).
SO, IF I BLOW INTO THE MACHINE ON THE SIDE OF THE ROAD I’M GOOD, RIGHT?
People often confuse a roadside breath-test, usually referred to as a (Preliminary Breath Test (PBT), with the breath sample they are required to provide upon arrest. A roadside PBT, which is done using a handheld device that is slightly larger than a deck of cards, is a tool used by law enforcement to determine if there is probable cause to arrest in the first place. There is no legal obligation to for you to provide a PBT if an officer asks you to do so, and you face no penalties for refusing to do so. Further, the results of a PBT are not admissible against you in Court.
However, regardless of whether you choose to submit to a PBT or not, if you are arrested and an officer requests that you provide a sample after reading to you the information contained in the approved “Informing the Accused” notification, you must provide the sample or risk being charged with a refusal.
ISN’T IT BETTER TO BE CHARGED WITH A REFUSAL THAN AN OWI?
If there were a situation where you could choose to be charged with one or the other, then in many instances a refusal would be better. While the license revocation and IID requirements tend to be more harsh than for an OWI, there are no fines or potential jail time for a refusal. However, as a practical matter, a refusal is almost never issued as a stand-alone offense. Instead an OWI charge that will almost always be issued as well. This is because, in many instances, even if you do refuse to voluntarily provide a breath or blood sample, a law enforcement officer will obtain a warrant and take a forced blood sample which will be analyzed for alcohol content and/or controlled substances. Even if the law enforcement agent does not seek a warrant, there is an inference that refusing to provide a requested sample shows consciousness of guilt, and law enforcement officers and prosecutors will often rely on this inference, in combination with any additional observations of intoxication, as grounds to charge you with an OWI if you refuse to provide a breath or blood sample for alcohol analysis.
I WAS CHARGED WITH REFUSAL…WHAT NOW?
In the event that you are cited for a refusal, it is imperative that you act quickly. The arresting officer will provide you with a form titled “Notice of Intent to Revoke License.” At that point, you will have ten days to submit a written request for a refusal hearing. If you miss this deadline, you will default on the refusal, and 30 days from the date of the citation the refusal penalties will go into effect. What’s worse, once this deadline has passed, with very few exceptions there is no way to re-open or otherwise challenge the refusal citation. So, if you have been charged with a refusal violation, you should seek out the counsel of a qualified defense attorney immediately to ensure that you understand the full extent of your rights, and that you take the necessary steps to protect them.