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Chemical Testing for DUI (OWI) in Wisconsin

Wisconsin laws allows for the use of chemical testing for drivers that are stopped for suspected OWI offense.  This test differs from a field sobriety test in that a field sobriety test can be refused without penalty (although the driver will most likely be arrested for OWI) while a refusal of the chemical test will result in a mandatory revocation of the drive’s operating license.  The test can be a blood test, breath test, or a urine sample test.  The officer chooses which ones he will administer.  The driver can opt for his own test, but only after he has agreed to the officer’s request.  The driver can still refuse to take the test.  However, once a person refuses to take the test, the officer will immediately prepare a Notice of Intent to Revoke the person’s operating privilege.  This puts the driver on notice that they are being accused of refusing to take a chemical test.  The notice also informs the driver that they have ten business days to demand a hearing.  If the person driving was operating a commercial vehicle, the officer will then issue an out-of-service order to the person for the 24 hours after the refusal, and notify the department. The officer issues a copy of the notice of intent to revoke the privilege to the person, and will submit or mail a copy to the circuit court for the county in which the arrest was made or to the municipal court in the municipality in which the arrest was made. The officer also mails a copy of the notice of intent to revoke to the attorney for that municipality or to the district attorney for that county, as appropriate, and to the department.  If there is a failure to file a demand for a hearing within 10 days, the accused will automatically be found guilty of a refusal.  The hearing will be in front of a circuit court judge.  It is not a criminal charge, but the accused will lose their license and there will be a waiting period for the driver to obtain an occupational license.

The person shall not be considered to have refused the test if it is shown by a preponderance of evidence that the refusal was due to a physical inability to submit to the test due to a physical disability or disease unrelated to the use of alcohol, controlled substances, controlled substance analogs or other drugs.

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