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Wisconsin DUI (OWI) Frequently Asked Questions

What are lawful/unlawful vehicle stops in Wisconsin?

For an officer of the law to make a stop, he must meet a standard of probable cause.  This can be for any type of initial traffic stop.  If the initial stop is for a criminal offense, then the standard decreases to a lesser one of reasonable suspicion.  The police will have to establish that that they were not acting randomly or in an arbitrary manner, and that they did not make the stop on order to harass the driver.

Once the police make the stop, they will have to justify the manner and the length of time that the driver is held.   In a OWI/DUI case, if an officer pulls over a driver for a traffic violation and then smells an odor of alcohol or notices other indicators that they have been drinking, most courts will find that it is reasonable to detain them long enough to make a determination as to whether they are under the influence of alcohol or drugs.  Typically this is long enough to do field sobriety testing, breath testing, or blood testing.

What evidence can/cannot be admitted of DUI (OWI) in Wisconsin?

It has been upheld by the Wisconsin Supreme Court that evidence taken from the preliminary breath test in a field sobriety test remains inadmissible.  However, the results of the breath test that is administered as part of the Implied Content law is admissible.  The reason for this is that the test taken during a field sobriety test is only to confirm the officer’s suspicion that the driver was operating a vehicle while under the influence.  The actual chemical tests that are performed under the Implied Consent law are done with better equipment so the results will be more reliable.  Additionally, the tests are usually performed at the police station once the driver has been arrested, so the tests take place in a controlled environment.  All testing, whether breath, blood, or urine, must comply with the rules outlined by the Wisconsin Department of Transportation.  Should there be a failure to follow these procedures, or a failure to preserve, analyze, or label the sample, then the validity and admissibility of the test results may be affected.

Can a DUI (OWI) be expunged in Wisconsin?

In Wisconsin, an OWI conviction is a permanent part of a person’s driving record.  Since 1998, Wisconsin has counted all lifetime OWI convictions in calculating whether an OWI arrest should be prosecuted as a third or greater offense. Therefore, OWI convictions are usually never purged from a Wisconsin driver’s record.  However, if a person has had one OWI offense and the next OWI offense occurs outside of a ten year period, then it will be considered a first offense.   Once a person reaches a third offense, then the previous two offenses are counted.  Therefore, if a person has two first offenses because they occurred in a longer than ten year period, then the third time they are convicted of OWI will activate the previous two offenses, and they will be facing penalties for someone who has had three offenses.  If a person is convicted of a first offense OWI with an alcohol concentration of 0.08 or more but less than 0.10, the Wisconsin Department of Transportation is required to purge the offense from its records after ten years if the person does not commit another OWI offense within the same ten year period.

What are the laws in Wisconsin for Underage Drivers and DUI?

Drivers less than 21 years of age are required by law to maintain absolute sobriety, and driving with any amount of alcohol in their system is illegal.  This differs from those who are over 21 years of age because those drivers are considered legally able to purchase alcohol, and they would not be legally intoxicated if their BAC is below .08.  Additionally, the fines for OWI drivers under 21 years of age differ than drivers that are of legal age.  If the driver is under 21 and arrested for having a BAC level of .08% or greater, they will be facing the same fines and penalties as someone over 21 would face for the same offense.

What is an Ignition Interlock Device?

Ignition Interlock Devices (IIDs) can be ordered by the courts as a license restriction on second and subsequent OUI offenses, or for a refusal of a chemical test under the implied consent law. Ignition Interlock Devices are tied to a person’s operating privilege rather than to a particular vehicle.  An Ignition Interlock Devices is a device that is installed in a vehicle and requires the driver to blow into the mechanism in order to start the vehicle.  It will prevent the vehicle from starting if the driver has been drinking, and the breath sample is above a BAC limit that is programmed into the device.  Ignition Interlock Devices can be ordered for any length of time from one year to the maximum available revocation period for the offense.  Ignition Interlock Devices are installed at the defendant’s expense.  It is a violation of the IID license restriction for a driver to have another person blow into the device or to operate any vehicle without an Ignition Interlock Devices.

Can I be stopped and arrested for DUI (OWI) even if the vehicle was not moving?

In Wisconsin, a person can be cited for OWI even when the vehicle is not moving.  The Wisconsin statute states that one can operate a vehicle even by starting the car and leaving it in park.  It is not necessary for the vehicle to be moving to be arrested for OWI.

Do I have the right to talk to an attorney before I give a sample?

Wisconsin does not allow for the accused to speak to an attorney before they give a sample.  Once the officer has read the Informing the Accused form to the accused, the driver is 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 rights, anything other than a “yes” answer to the requested test may be taken as a refusal.  This may also include remaining silent.

Do I have to give a blood or urine sample?

If an officer of the law believes that the driver has been drinking or is impaired by chemicals, he can request for a breath, blood, or urine sample.  The driver can refuse this request, but by doing so, the officer will arrest the driver for refusal and they can lose their license for up to one year.   If a suspected driver refuses the test, they will be given a Notice of Intent to Revoke.  This puts the driver on notice that they are being accused of refusing to take a chemical test.

Do I have to submit to a field sobriety test?

No, a driver does not have to submit to a field sobriety test.  They can politely refuse the request.  However, if they do refuse to take this test, the officer will most likely arrest the driver for OWI.


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