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Breath test refusal and probable cause

Wisconsin has an implied consent law, which means that motorists, by virtue of receiving their driver's license, consent to blood and breath testing for intoxication determination purposes. Those who refuse a breath test may be subjected to penalties, including license suspension. A suspended license can wreak havoc on an individual's life, negatively affecting his or her personal and professional life. It may also have an effect on his or her reputation. Yet, simply because there is an implied consent law on the books does not mean that the police can ask an individual to submit to a breath test whenever they want.

Instead, as indicated under Wisconsin law, a police officer may only request a motorist submit to a breath test if he or she has probable cause to believe that the motorist was under the influence of alcohol or a controlled substance. Probable cause may be derived from the scent of alcohol, glazed eyes or movements consistent with intoxication. If an officer does not have probable cause, then he or she cannot request that a driver submit to a breath test.

So what does this mean for Wisconsin motorists who have been accused of drunk driving or refusing a breath test? It means that even if they face serious penalties, they may be able to beat the charges they face. It may sound like a legal technicality, but probable cause is meant to protect everyday citizens from police overreach. Therefore, if probable cause did not exist at the time that a test was refused, then the applicable penalties should not apply.

Making such legal arguments require knowledge of the law and strong litigation skills. Those who want to learn more about what they can do to protect their legal rights in the face of aggressive prosecutors may want to speak with a criminal defense attorney of their choosing, since this post cannot serve as legal advice or guarantee a specific result in any one case.

Source: Wisconsin State Legislature, "343.303," accessed on Sep. 4, 2016

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