No motorist in Wisconsin wants to be pulled over by the police. It can be a very stressful situation, especially if the officer accuses the motorist of drunk driving and requests that the motorist undergo a breath test. People in such situations may wonder if they can refuse to submit to a breath test if asked to by an officer. They can, but breath test refusal has consequences.

In Wisconsin, as part of the privilege of driving in the state, motorists implicitly agree to provide a breath test when asked to by a law enforcement officer at a traffic stop to determine the motorist’s blood alcohol concentration. If a person refuses to submit to a breath test, they will face a one-year suspension of their driver’s license for a first refusal. If it is a second or subsequent refusal, the motorist will face a two or three-year suspension of their driver’s license.

It is important to note that, even if a person refuses to submit to a breath test, they still could be charged with OWI if the officer believes the motorist is impaired and cannot safely drive. In addition, in Wisconsin the fact that a person refused to submit to a breath test could be used against them in a subsequent court proceeding as evidence of “knowledge of guilt.”

However, all is not lost if a person refuses to submit to a breath test. For example, if the traffic stop itself was unlawful, evidence gained from the stop can be suppressed, and it is then up to the prosecution to show that the search or seizure performed did not violate the Fourth Amendment to the U.S. Constitution. If the search and seizure was unlawful, per the exclusionary rule any evidence gathered therein cannot be used against the defendant in a court proceeding.

Nevertheless, whether these defenses are applicable depends heavily on the facts of a person’s case, and defense strategies that work in one case may not work in another. Refusing a breath test has consequences, so motorists who are considering doing so may want to weigh the pros and cons of breath test refusal before making their decision.