If you are stopped on suspicion of drunk driving, the officer will likely ask you to blow into a portable breathalyzer or take field sobriety tests. These tests are used to determine whether you are impaired and whether you should be arrested and charged with drunk driving. If you are arrested, additional tests may be performed to determine whether you were driving under the influence and whether you should be charged with the offense of operating while intoxicated (OWI). Understand the role that these tests play in OWI cases is important, and you will need to be aware of the consequences you may face for refusing to submit to one or more types of tests.

Roadside Breathalyzer Tests

If you are pulled over by a police officer on suspicion of drunk or intoxicated driving, you may be asked to take a breathalyzer test. This portable breathalyzer test may be used to determine whether you are intoxicated by providing an estimate of the amount of alcohol in your system. The legal limit for blood alcohol content (BAC) in Wisconsin is 0.08%. If a breathalyzer indicates that your BAC is above this limit, this will give the officer probable cause to arrest you for OWI. 

However, breathalyzer tests are not always accurate. If the machine is not calibrated properly, it may give a false reading. Additionally, other factors, such as mouthwash or acid reflux, can affect the accuracy of the test. You are allowed to refuse a roadside breathalyzer test.

While everyone knows that operating a vehicle under the influence of drugs or alcohol is a mistake, many thousands of people have a few too many drinks and then get behind the wheel of their car every year in Wisconsin. The majority of these people, while taking an enormous risk, will make it to their destination safely. Others will get caught in OWI checkpoints, while others will go on to cause serious or even fatal traffic accidents.

Because of the potential life-altering seriousness of OWI accidents, prosecutors are often eager to teach drunk drivers a lesson. If you were just caught driving drunk for the first time (or even driving under the legal limit, in some circumstances), you need to hire an experienced OWI defense attorney who will help you fight the charges.

Penalties for a First-Time OWI Offense

Many people’s first concern after getting arrested for an OWI is whether they will go to jail. For most, the answer is no –– as long as a minor under age 16 was not in the car and no car accidents occurred. 

An arrest for drunk or intoxicated driving can result in multiple consequences. If a person is convicted of operating while intoxicated (OWI), they may be required to pay fines, they may be sentenced to time in prison, and their driver’s license may be revoked. In some cases, a person may lose their driver’s license even if they are not convicted of OWI. Because most people need to be able to drive regularly, it is important for a person to understand their options for regaining their driving privileges, including whether they can receive an occupational driver’s license. For these types of licenses, a person will be required to use an ignition interlock device (IID), and these devices may also be required in other OWI cases. When using a vehicle with an IID, a person will be required to provide a breath sample before starting the vehicle and at regular intervals while driving.

IID Requirements in Wisconsin

For a first-time OWI offense, a person’s driver’s license may be revoked for six to nine months, and after their license is restored, they will only need to use an IID if a chemical test showed that they had a blood alcohol concentration (BAC) of at least .15 percent. An IID will also be required if a person is convicted of OWI for a second or subsequent time or if they refused to submit to chemical testing of their BAC. In most of these cases, the requirement to use an IID will last for one year.

The use of marijuana has become more acceptable in the United States over the past several years. Many people treat this substance the same as alcohol, considering it to be a relatively harmless recreational drug to be used in moderation. However, even though multiple states have made marijuana legal as either prescription medication or a recreational substance, it continues to be illegal in Wisconsin and at the federal level. Drivers in Wisconsin should be aware of the potential consequences they may face if they are arrested for OWI/DUI based on their use of marijuana.

“Driving While High” in Wisconsin

Since marijuana can have intoxicating effects similar to alcohol, those who drive while under the influence of this substance could be pulled over by a police officer and arrested for Operating While Intoxicated (OWI). However, there are a few differences between OWI cases involving alcohol and those involving marijuana.

Wisconsin law recognizes a legal limit for the blood alcohol concentration (BAC) that a driver can have before being considered intoxicated. If a driver has had one or two drinks, their BAC may be below .08 percent, making it legal for them to drive. However, Wisconsin law does not have a legal limit for marijuana. In fact, the law states that it is illegal for a person to drive with any detectable amount of a restricted controlled substance in their blood.

Every state in the country has an implied consent law. Basically, this law means that by accepting the privilege drive a vehicle, a licensed driver automatically consents to chemical or blood testing if a police officer has probable cause to believe that driver is under the influence of alcohol or drugs. Wisconsin’s implied consent law goes a step further. The state’s implied consent law contains a provision that stipulates that an incapacitated driver is “presumed not to have withdrawn” their consent of testing, even if they are not conscious.

This provision meant that police could conduct blood testing on a driver who was totally unconscious and unaware of what the police were doing. However, this will no longer be the case as the Wisconsin Supreme Court recently ruled that that provision is unconstitutional and violates the incapacitated driver’s Fourth Amendment protecting against unconstitutional search and seizure.

The Case

The unanimous decision was made by the justices in the case of State v. Prado. In December 2014, the defendant was severely injured in a car crash that killed the other driver. At the hospital, a police officer read the defendant, who was unconscious and intubated, the informing the accused script contained in the state’s implied consent law. Since she was unconscious, she did not answer the officer, however, because he thought he was within his rights under the law, he had a nurse obtain a blood sample without obtaining a warrant to do so first.