Wisconsin Implied Consent Violations: What to Do If You Refused a Blood or Breath Test

Understanding Wisconsin's Implied Consent Law

Driving in Wisconsin is considered a privilege, not a constitutional right. By accepting a Wisconsin driver's license, you implicitly agree to submit to chemical testing (breath, blood, or urine) if a police officer has probable cause to believe you are driving under the influence. This is governed by the state's Implied Consent Law under Wis. Stat. § 343.305. If you say no to the officer's request at the police station or hospital, you will be issued a Notice of Intent to Revoke Operating Privilege. This administrative penalty is entirely separate from the criminal OWI charge. Whether you are facing charges in the Brown County Circuit Court, Green Bay or the Dane County Circuit Court, Madison, a specialized defense attorney can help you fight both the refusal revocation and the underlying OWI.

The Step-by-Step Refusal Process

A refusal charge moves incredibly fast. Missing the initial deadline guarantees the loss of your driving privileges without a fight.

Step 1: The Notice of Intent to Revoke

When you refuse the test, the arresting officer will immediately confiscate your physical license and hand you a yellow piece of paper known as Form MV3396, Wisconsin, WisDOT, Notice of Intent to Revoke Operating Privilege. This document serves as a 30-day temporary driving receipt, but it also starts a critical legal countdown.

Step 2: The Strict 10-Day Rule

You have exactly 10 calendar days from the date of the notice to file a formal request for a Refusal Hearing with the Circuit Court in the county where the arrest occurred (e.g., the Waukesha County Circuit Court, Waukesha). If your lawyer does not file this request within the 10-day window, the court will automatically revoke your driver's license for a minimum of one year, require you to install an Ignition Interlock Device (IID), and mandate an alcohol assessment.

Step 3: McNeely Warrants and Forced Blood Draws

Many drivers believe that by refusing the test, they prevent the police from obtaining their Blood Alcohol Concentration (BAC). In modern policing, this is mostly false. Following the U.S. Supreme Court decision in Missouri v. McNeely, 569 U.S. 141 (US Supreme Court 2013), Wisconsin officers routinely utilize electronic warrants. While you are sitting in the booking room, the officer can email a judge, get a warrant signed digitally, and transport you to a hospital to draw your blood by force. This means you could face both the enhanced penalties of a refusal and a high-BAC OWI charge simultaneously. Furthermore, Wisconsin courts have scrutinized forced blood draws on unconscious drivers, as seen in State v. Prado, 397 Wis. 2d 719 (WI Supreme Court 2021), making constitutional challenges highly relevant.

Step 4: Winning the Refusal Hearing

A Refusal Hearing is limited in scope. Your attorney will typically challenge three specific issues: whether the officer had probable cause to arrest you, whether the officer read you the Informing the Accused warnings correctly, and whether you actually refused the test. If the officer made an illegal traffic stop (e.g., pulling you over without reasonable suspicion), your attorney can argue that the entire arrest was invalid, which forces the judge to dismiss the refusal revocation.

How Much Does it Cost in Wisconsin?

Fighting an implied consent violation requires immediate legal intervention. Typical costs include:

How Long Does the Process Take?

While the request for a hearing must be filed within 10 days, the actual Refusal Hearing may not be scheduled for several months. In many Wisconsin counties, judges prefer to hold the Refusal Hearing concurrently with any pretrial motions for the criminal OWI charge. Your driving privileges generally remain valid pending the outcome of this hearing.

Frequently Asked Questions (FAQ)