Chemical Test Refusal & Implied Consent in Wisconsin
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Understanding Wisconsin’s Implied Consent Law
Wisconsin’s Implied Consent Law requires drivers who are lawfully arrested for OWI to submit to a chemical test of breath, blood, or urine. By driving on Wisconsin roads, motorists are deemed to have already consented to this testing under Wis. Stat. § 343.305.
A refusal is not a criminal offense, but it triggers a separate legal process with serious and immediate consequences, including mandatory license revocation and ignition interlock requirements—regardless of how the underlying OWI case is resolved.
Key points to understand:
- Implied consent applies only after a lawful OWI arrest. An officer must have legal authority to request chemical testing.
- Refusal is distinct from administrative suspension. Refusals follow a separate statutory process and carry different penalties.
- Refusal cases are handled in court. Unlike administrative suspensions, refusal hearings are decided by a judge.
- Refusals carry enhanced penalties. License revocation periods and IID requirements are often longer than those imposed after an OWI conviction.
- Refusals can affect future OWI cases. A refusal may be counted and used to enhance penalties in later OWI prosecutions.
Whether a driver actually refused—or whether law enforcement complied with Wisconsin’s implied consent procedures—is often a central issue in these cases. Errors in the arrest, consent warnings, or refusal process can invalidate the revocation and significantly change the outcome.
The Refusal Hearing (10-Day Rule)
After an alleged chemical test refusal, you have only 10 business days from the date on the Notice of Intent to Revoke to request a refusal hearing. Weekends and legal holidays do not count. If you miss this deadline, your driver’s license is automatically revoked—even if your OWI charge is later dismissed.
Unlike administrative suspension hearings, refusal hearings are held in court, before the same judge handling your OWI case. This makes the refusal hearing both a critical license proceeding and a strategic moment in the broader defense.
What the Court Decides at a Refusal Hearing
At the hearing, the judge is limited to deciding whether the State has proven the following:
- Whether the officer had probable cause to believe you operated while intoxicated,
- Whether you were lawfully arrested,
- Whether the officer properly informed you of the consequences of refusal and your rights regarding the implied consent law, and
- Whether you unreasonably refused the requested test.
If the State fails to prove any one of these elements, the refusal must be dismissed and the revocation rescinded.
Why the 10-Day Hearing Matters
The refusal hearing often determines more than just your license. It can:
- Prevent a long-term revocation and IID requirements
- Exclude the alleged refusal from being used against you at trial
- Create leverage in resolving the underlying OWI charge
Because the deadline is short and the legal issues are narrow, early action is essential.
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Penalties for Chemical Test Refusal in Wisconsin
Penalties for a chemical test refusal in Wisconsin are separate from any OWI conviction and are often more severe than the penalties imposed for a first-offense OWI. Refusal penalties escalate quickly with prior refusals and carry mandatory license revocation, ignition interlock requirements, and waiting periods before occupational driving privileges are available.
|
Refusal Offense |
Classification |
License Revocation |
Waiting Period for Occupational License |
IID/AODA Requirements |
|---|---|---|---|---|
|
1st Refusal |
Civil Violation |
1 year |
30 days |
IID 12 months + AODA required |
|
Second Refusal |
Civil Violation |
2 years |
90 days |
IID 24 months + AODA required |
|
Third + Refusal |
Civil Violation. |
3 years – Lifetime revocation if 4+ |
120 days |
IID 36 months + AODA required |
Notes:
- A refusal is not a criminal offense and does not carry jail time.
- Revocation and waiting periods apply even if your OWI case is dismissed.
- IID and AODA completion are required before reinstatement or occupational license approval.
- Refusals on breath tests are considered an OWI conviction under Wis. Stat. § 343.307.
Learn more about ignition interlock device (IID) requirements in Wisconsin.
Defense Strategies for Chemical Test Refusal in Wisconsin
Refusal cases are won or lost on procedure, clarity, and statutory compliance. Our defense strategy focuses on whether law enforcement followed Wisconsin’s implied consent law and whether the alleged refusal was legally valid.
Procedural Defenses
Officers must strictly comply with Wisconsin’s implied consent requirements. Common procedural defenses include:
- Failure to properly read the Informing the Accused form.
- Incomplete, confusing, or misleading explanations of testing options.
- Improper service of the Notice of Intent to Revoke.
- Lack of legal authority to request a chemical test.
Any deviation from statutory procedure can require dismissal of the refusal and rescission of the revocation.
Evidentiary & Strategic Defenses
Not every refusal is a true refusal. We frequently challenge cases involving:
- Language or comprehension barriers affecting understanding of the request.
- Medical conditions or physical inability to complete the requested test.
- Lack of probable cause for the underlying OWI arrest
- Negotiation leverage: securing dismissal of the refusal in exchange for resolution of the OWI.
In many cases, dismissal of the refusal also prevents the State from using the alleged refusal as evidence in the OWI prosecution.
Why Hiring an OWI Defense Lawyer Matters for a Refusal
A chemical test refusal carries consequences that often exceed those of an OWI conviction itself, including longer license revocation periods and mandatory ignition interlock requirements. Refusal cases also move quickly and hinge on strict statutory compliance, making early and experienced representation critical.
The attorneys at Chirafisi Anderson, S.C. regularly defend drivers facing refusal allegations throughout Southern and Central Wisconsin. We understand how refusal cases are prosecuted—and how to challenge them effectively.
Refusal Case Results
Take Action Now on a Chemical Test Refusal
A chemical test refusal can result in longer license revocation periods and mandatory ignition interlock requirements—often more severe than an OWI conviction itself. You have only 10 business days to request a refusal hearing. Missing that deadline means automatic revocation.
Contact Chirafisi Anderson, S.C. today to speak with an experienced OWI defense attorney. We offer free consultations and represent clients throughout Southern and Central Wisconsin, including Dane, Rock, Jefferson, Dodge, Columbia, Sauk, Iowa, and Green Counties.