Wisconsin OWI Frequently Asked Questions
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Why did I get two tickets?
There are two common alcohol-related offenses in Wisconsin. One is operating while under the influence of an intoxicant ("OWI"). The other is operating with a prohibited alcohol concentration ("PAC"). They both are slightly different offenses. The OWI requires that your ability to operate a motor vehicle was materially impaired by your consumption of alcohol, a controlled substance, or any combination of the two. The PAC requires that your alcohol concentration was over the legal limit. The legal limit varies depending on how many prior OWI, PAC, or refusal convictions you have.
Did I have the right to talk to a lawyer before deciding to take the test?
Unfortunately, not in Wisconsin. Once the officer has read to you the Informing the Accused form, you are required to promptly say "yes" to the requested test. While it may be appropriate to ask for clarification of the information in the form or to ask a question or two about your rights, anything other than a "yes" answer to the requested test may be taken as a refusal. This may also include remaining silent. That said, it's unlikely that a jury would regard your request for a lawyer as evidence that you were guilty of OWI. So you may still have a defense to your OWI even if a request for a lawyer was taken by the officer as a refusal to submit to the test.
Can I pick my own test?
That depends. Under the Implied Consent Law, a law enforcement agency may choose the first test that you must take. You cannot select that test yourself. Any attempt to do so may be taken as a refusal by the officer. You also cannot object to a blood test on the grounds that you have a fear of needles. But once you take the first test the officer asks you to take (and any other tests you are requested to take), you may then take the alternate test the law enforcement agency is prepared to give you at their expense and/or a test of your own choosing at your expense. The officer is required to provide you with a reasonable opportunity to arrange for your own test.
Did I have to take the breath test at the scene?
No. You have the right to refuse to submit to that test. It has nothing to do with the breath test that you may be required to take later under the Implied Consent Law. The hand-held breath test that you may be asked to take at the scene is merely a tool for the officer to use in deciding whether to arrest you. This device is approved in Wisconsin only for determining whether you have alcohol in your system, not what your alcohol concentration is. The results of this test are generally not admissible in court. However, if you do refuse to take this test, the officer will most likely arrest for OWI.
What happens if I refuse to take the test the officer requires me to take after reading the Informing the Accused form?
Then you will be given a Notice of Intent to Revoke. This puts you on notice that you are being accused of refusing to take a chemical test. It tells you that you have 10 business days to demand a hearing. You need to be sure to file this demand yourself, or preferably, have your lawyer file it for you. If you fail to file a demand for a hearing within 10 days, you will automatically be found guilty of a refusal. The hearing will be in front of a circuit court judge. This is not a criminal charge, but you will lose your license and there will be a waiting period for your occupational license. You may also be convicted of an OWI that may or may not be criminal. The officer may also decide to forcibly restrain you and have a blood sample taken anyway.
How can I be convicted of an OWI if there is no test result?
An OWI conviction may be obtained based on any combination of the evidence of you driving, your performance on field sobriety tests, and other observations the officer and other witnesses may have made regarding your actions and behavior. In addition, if you refused to submit to the test, the jury will be told that they may consider the fact of your refusal as evidence that you knew you were guilty. This is why the reason that you may have refused becomes very important.
Can I lose my license before my court date?
Yes. If you have taken a test and the result is over the legal alcohol limit, you may face an administrative suspension of your license. You will be given a Notice of Intent to Suspend that informs you of this. If you took a breath test, then you will probably be given this form the night you were arrested. If you took a blood test, then the form will probably be mailed to you. You have 10 days to request a hearing on this suspension. If you fail to do so, your license will be automatically suspended 30 days after the date on the notice. You need to be sure to file this demand yourself, or have your lawyer file it for you. The hearing will be in front of a hearing examiner from the Department of Transportation. There may be some situations where it works to your benefit not to file a request for a hearing. Your lawyer can help you make that decision.
If I get convicted of a criminal OWI, will I go to jail?
If you get convicted, there are mandatory jail sentences. The length of those sentences depends on what offense OWI it is, the facts of your case, what your alcohol level was, whether you refused to take a test, and whether you have done alcohol or drug counseling. Your lawyer will assist you in defending your case, looking into your prior convictions, and making sure that you get the best possible deal. In addition, many counties also have electronic monitoring programs that allow you to serve your sentence while being supervised at home. You are also able to go to work. Your lawyer will also help you in applying for those programs.
I got a ticket and I wasn't driving. Can they do that?
Perhaps. Wisconsin prohibits operating a motor vehicle while under the influence or with a prohibited alcohol concentration. This means that the car may not have been moving. They still have to prove that you actually used any of the controls necessary to put the vehicle into motion. This means that you turned on the ignition, or put the vehicle into gear, etc. It may also be sufficient if there is a reliable witness who can testify that you were driving or operating the vehicle.
I drank alcohol after I drove and before the officer gave me a test. Does that matter?
Absolutely. This can be a very hard for a prosecutor to prove. They need to prove that you were impaired at the time of driving. What happens during the period intervening driving and the test is very important. It always works to your benefit if you have been drinking after you drove and before you submitted to the test.
I'm guilty. Why should I fight my case or hire a lawyer?
Simple. First of all, the question is not whether you're guilty. It's whether the prosecutor can prove that you are. Second, you may have legal issues in your case that can help you, such as invalid prior convictions. This could result in you getting a much lighter sentence. This isn't something that you can determine for yourself. You need a lawyer to do if for you. If you have two or more pending OWI cases, your lawyer can raise legal arguments that could result in a much lighter sentence. Worst case scenario, you lawyer will negotiate the best possible deal for you and make sure that all of your rights are protected. Did you know that you need to do your AODA assessment before you report to jail or you don't get Huber release? Did you know that if you have two pending OWI cases, you need to be convicted of both on the same day or else you lose your occupational license? Your lawyer should know all of these things and more. He or she will prevent you from being penalized more harshly simply because you don't know all the applicable laws, regulations, and administrative codes. The State of Wisconsin has a lawyer representing its interests in every hearing, even for simple traffic tickets. Why shouldn't you have the same protection?