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Bucher Law Group, LLC

Consequences for refusing to submit to a breath test

 Posted on July 21, 2017 in DUI/OWI

Bucher Law Group, LLC - Blog Post

Wisconsin drivers who are pulled over by police officers may not be fully aware of their rights. A driver might be compelled to say "no" to an officer's request, not fully understanding the consequences of such an action. While individuals stopped by law enforcement have rights and the ability to invoke them, when a driver suspected of drunk driving says no to a breath test, he or she could face penalties regardless of whether he or she is charged and convicted of a DUI.

In addition to these potential penalties, motorists should note the ability of a prosecutor to use a driver's refusal to submit to a breath test in court. While it was argued that a driver had a constitutional right to refuse the test, thereby preventing the prosecution from present it to a jury because it constituted an attempt to infer guilt, the Wisconsin Supreme Court determined that there is no constitutional right to refuse a breath test. However, the Court did hold that the current law is too broad and misleading.

In the state of Wisconsin, all licensed drivers have impliedly consented to a breath or blood test when they are subjected to a lawful stop and arrest for a suspected drunk driving. While a preliminary breath test conducted in the field can be refused, those conducted post-arrest cannot.

Yet, even those who are subjected to a legal breath test may have strong criminal defense options. For example, breathalyzer equipment must be properly tested and calibrated, and chain of custody procedures must be followed. Any errors made in these areas could lead to evidence suppression, thereby strengthening a criminal defendant's case.

Addressing DUI charges can be challenging, which is why it may be imperative for an accused individual to seek legal counsel. Defense attorneys are available and willing to help these individuals assess their case and craft a criminal defense strategy that seeks to protect their future.

Source: Journal Sentinel, " Refuse breath test? It can be used against you, agrees Wisconsin Supreme Court," Bruce Vielmetti, April 20, 2017

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