Interviewer: What are the parameters of chemical testing? If someone has submitted to a breath test and now the police officer says they want the driver to do a blood test, too, is the refusal scenario different because they’ve already complied with one chemical test? Or, can the police test them numerous different ways and they have to comply?
Under Wisconsin’s Implied Consent, You Must Submit to Whatever Chemical Tests the Police Request
Rex: Unfortunately, the refusal scenario is no different. It’s exactly the same. Let’s say they take a breath test that the driver consented to and it comes back below the legal limit. Now, the officer says, okay, well, now here’s another, and he or she reads what we call the ‘informing the accused form’ to the client, again, a second one, with blood now being the primary object instead of breath. The law is written in such a way that the implied consent is to submit to whatever tests, in plural, that the officer would request.
Because of the Implied Consent Laws, A Refusal Is Difficult to Defend
Interviewer: Have you had scenarios like that where your clients refuse because already underwent the breath test?
Rex: Yes, sometimes we see that scenario where they think that by having done the preliminary breath test the first time around that they don’t have to submit to the more sophisticated breath test or blood test thereafter. But none of those, unfortunately, are adequate defenses for the refusal charge.
Will a Canine Unit Be Called In If You Are Suspected of Drug Use During an OWI Stop?
Interviewer: So who will get involved if you’re suspected of using or possessing drugs in an OWI stop? Will they call in police dogs to sniff your car? You mentioned the DRE officer. So, what are some of the people that get involved?
Rex: They would call a DRE in, but I’ve not ever seen in just a standard drunk driving scenario where they would actually bring in the canine unit to try to gather evidence to prove a drunk driving case. I just don’t think that they feel that those resources are well spent on something of that nature. We see that now in scenarios where really drunk driving is not the object but they believe that there’s some transportation of larger quantities of drugs involved.
By Rex Anderegg