Refusing the Breath Test

Wisconsin law enforcement agents can administer two breath tests during the course of an OWI investigation: a roadside test and an evidentiary test. While the roadside test is voluntary, refusing to take the evidentiary breath test back at the police station is seen as a violation of the Implied Consent law.

The penalties for declining the breath test include a one-year driver’s license revocation and ignition interlock device, which measures your blood alcohol content (BAC) before you can start your vehicle. You will also have to wait 30 days before applying to an occupational license that will allow you to drive to and from your place of employment and other court-approved locations. The length of the administrative license suspension is increased for each subsequent offense—a second refusal will result in a two-year revocation and a third refusal results in a three-year revocation.

In addition to the administrative penalty, a refusal can also be used in your criminal proceedings by the prosecution as an admission of guilt. Basically, the prosecutor could argue that you refused to take the breath test because you knew you would fail it.

To ensure you are aware of the consequences for declining the breath test, the officer is required to read the Implied Consent warning. If he or she failed to properly inform you of this warning, your OWI defense lawyer could move to have your refusal thrown out.