Whether you refused to submit to a chemical test of your breath, blood
or urine is a legal question. Providing a sample is not always determinative of whether there was a refusal.
Prior to requesting a chemical test sample, an officer has an obligation to read you a form entitled the Informing
the Accused form. The reading of the form is required under Wisconsin law. After the
officer reads you the form, he will ask you whether or not you wish to submit to an evidentiary chemical test of either your
breath, blood or urine. The officer is allowed to pick the type of the primary test.
other than an unequivocal "yes, I'll take the test", could be construed as a refusal. Furthermore,
even if you refuse, the officer has the right to literally hold you down and draw blood from you. Many
times the threat of this action is enough to get a person to agree to the test.
problem is you cannot cure an earlier refusal. Thus, if you initially refuse testing, but subsequently
change your mind, for instance in response to the officer's threat to hold you down, and then give the sample, you could
still be charged with refusing, even though in the end you actually submitted to the test. If the officer
provided you with a document entitled Notice of Intent to Revoke Operating Privileges you have been charged
with refusing. In this situation, it is critical that you immediately contact a qualified attorney.
You have only 10 days from the date of the Notice to request a refusal hearing. If you fail to timely
request the hearing, your license will be automatically revoked. Additionally, taking a breath test on the roadside
does not satisfy your obligation to submit to testing under Wisconsin law. I often hear clients complain
that the reason they refused testing at the station or hospital was because they had already tested over the legal limit on
the breath test offered at the road side. The breath test offered on the road is called a preliminary breath
testing (PBT) device. For purposes of Wisconsin law, it is inadmissible in all proceedings except at a
motion challenging probable cause to arrest. It is not an evidentiary test. Unfortunately, by taking the
PBT you have not complied with the Wisconsin Implied Consent law. In other words, the officer has the right upon arrest to
request you to submit to an evidentiary chemical test of your breath even though you had previously submitted to a PBT on
the road side. More importantly, refusing to submit to the request could be considered a refusal.