Wisconsin Act 195: Repealing Unconstitutional OWI and Implied Consent Provisions

Analysis of 2025 Wisconsin Act 195 (Assembly Bill 856)

Wisconsin has recently enacted 2025 Wisconsin Act 195, a critical legislative update that brings the state’s OWI and implied consent statutes into alignment with landmark rulings from both the Wisconsin Supreme Court and the U.S. Supreme Court.

For years, certain provisions of Wisconsin’s “implied consent” law remained in the written statutes despite being ruled unconstitutional by the courts. Act 195 officially repeals these invalid provisions, ensuring that the law as written now reflects the actual constitutional requirements for blood draws and chemical test refusals.

Because OWI cases often hinge on whether law enforcement lawfully obtained a chemical sample, Act 195 clarifies the limits of police authority. If you are facing an OWI charge or a refusal allegation, understanding these constitutional boundaries is essential to your defense.

Repealing the “Incapacitated Driver” Provision

The most significant change under Act 195 is the repeal of the incapacitated driver provision.

Under the old statutory language, a person who was unconscious or otherwise incapable of withdrawing consent was “presumed” to have given consent for a chemical test. This allowed police to conduct warrantless blood draws on unconscious drivers.

In State v. Prado (2021), the Wisconsin Supreme Court ruled this provision unconstitutional, holding that it violated the Fourth Amendment’s protection against unreasonable searches. Act 195 formally strikes this language from the statutes governing:

• Motor vehicles (Wis. Stat. § 343.305)
• All-terrain and utility-terrain vehicles (ATVs/UTVs)
• Boats and snowmobiles
• Off-highway motorcycles

Following this change, if a driver is unconscious, law enforcement must generally obtain a search warrant or establish “exigent circumstances” before conducting a blood draw.

Eliminating Criminal Penalties for Off-Road Blood Refusals

Act 195 also aligns Wisconsin law with the U.S. Supreme Court’s decision in Birchfield v. North Dakota (2016).

In Birchfield, the Court held that while police may conduct a warrantless breath test incident to an arrest, they cannot criminalize the refusal to submit to a blood test without a warrant.

While Wisconsin motor vehicle laws already treated refusals as civil matters, the statutes governing ATVs, UTVs, boats, and snowmobiles still contained language suggesting criminal penalties for refusing a blood test. Act 195 eliminates these criminal references, ensuring that refusal to submit to a blood draw – regardless of the vehicle type – is treated as a civil/regulatory matter rather than a crime.

Updates to the “Informing the Accused” Script

Act 195 makes necessary technical amendments to the “Informing the Accused” form (Wis. Stat. § 343.305(4)). This is the specific script an officer must read to a driver before requesting a chemical test.

The updated language clarifies:

• Operating Privileges: It explicitly warns that a refusal will lead to revocation, while a test result showing a prohibited alcohol concentration or restricted controlled substance will lead to suspension.
• Test Flexibility: It reinforces that compliance with one type of test (e.g., breath) does not bar the officer from requesting a different type of sample (e.g., blood or urine).
• Constitutional Accuracy: By removing references to the incapacitated driver provision, the script no longer contains misleading information about “presumed” consent.

Practical Impact on OWI Defense

Act 195 essentially “cleans up the books” to match the constitutional reality defense attorneys have been litigating for years. However, its practical impact is significant:

• Warrant Requirements: It reinforces that blood draws are invasive searches that generally require a warrant or actual, voluntary consent.
• Refusal Hearings: It streamlines the legal standards used during refusal hearings, focusing on whether the officer properly informed the individual and whether the request for a sample was constitutionally sound.
• Uniformity: Whether you are on a highway, a trail, or a lake, your Fourth Amendment rights regarding blood draws are now protected by a uniform statutory standard.

Key Takeaways from Wisconsin Act 195

• “Presumed Consent” is Gone: Police can no longer rely on a statute to take blood from an unconscious driver without a warrant.
• Supreme Court Compliance: The law formally adopts the constitutional standards set in State v. Prado and Birchfield v. North Dakota.
• No Criminal Refusals: Criminal penalties for refusing a blood test in ATV, boat, and snowmobile cases are officially repealed.
• Updated “Informing the Accused”: The script read by officers at the time of arrest has been amended for accuracy and clarity.

What This Law Means Going Forward

Act 195 represents a final step in reconciling Wisconsin’s statutes with the Bill of Rights. For drivers, it serves as a reminder that “implied consent” is not a blank check for law enforcement – especially when it involves invasive blood draws. As the written law now matches the court’s rulings, there is less room for “good faith” errors by law enforcement when they fail to obtain a warrant.