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Wisconsin License Suspension Laws

10 DAY WARNING!

If you refused a breath or blood test, you received a pink Notice of Intent to Revoke form. You have ten days, not counting Saturdays, Sundays, or legal holidays, from the date in the upper right corner of the form (usually the date you were stopped, but sometimes the next day if you were stopped shortly before midnight) in which to demand a "refusal hearing." The demand must be filed with the Clerk of Courts in the county in which the charge is pending. The address is shown on the Notice form.

If you don't file the "refusal hearing demand" within this short time period, you'll lose your license for at least one year, and potentially as many as three years (depending on whether you've had drunk driving or refusal convictions in past years, anywhere in the United States).

You have to create the refusal demand yourself -- there is no official form. It should be actually filed, not merely mailed, by the deadline. Whether mailing inside the time limit is legally sufficient has never been decided, and is unclear. So, it is best to actually have the refusal demand in the clerk of courts hands by the deadline.

The lawyer handling your case should file the refusal demand for you. But, if time is short and you don't have a lawyer yet, you can do it yourself:

Just write your address on a sheet of paper, address the document to the clerk of courts, and then write, "I hereby request a hearing on my alleged refusal to submit to a chemical test." Then sign it -- and make sure you get it to the clerk in time.

It's a good idea to make a copy of the demand. When you file the original, ask the clerk to time stamp the copy you're keeping, as proof of filing. If you mail it in -- send it certified mail.

So, what's a refusal hearing?

It is a hearing in court about whether the officer was legally entitled to request a test of you. It is a very important stage in defending your drunk driving case, and is important itself as a defense of your right to drive.

There are specific issues at refusal hearings, including whether the officer was entitled to stop you, whether there was probable cause for the arrest, whether you were properly informed under the Implied Consent Law about your legal rights and the duties of the police, and whether you actually refused.

There may be other defenses to refusals, as well. If, for example, you were willing to take a different form of test, this could be a Constitutional defense to a refusal case. This, and other refusal defenses, are covered in detail in this page of the OWIdefense.com website.

I Refused the Test -- Can I Win The Case?

Refusing a breath or blood test -- what's known as a "refusal" case -- can give you special defenses and advantages that exist in no other type of drunk driving case. Your lawyer can cross-examine the arresting officer, and anyone else who might be a witness, before the case goes to court. Not only can that help prepare your defense, it can create evidence that can be used in court to win.

A refusal case is legally regarded as a separate lawsuit from the drunk driving case. In Wisconsin, it is even categorized as a different type of case. A refusal case -- that is, the lawsuit seeking to revoke your operating privileges as a penalty for refusing (it's the one that the police officer commences by issuing to you the pink "Notice of Intent to Revoke" form and filing a copy with the court) -- is considered a "special proceeding." Under Wisconsin's statutes, "special proceedings" are, for the most part, governed by the same rules as ordinary civil lawsuits. In contrast, a drunk driving case is either a civil forfeiture or criminal case.

This makes a big difference. In the drunk driving case itself, whether a first offense forfeiture violation or a second or subsequent offense criminal prosecution, very little "discovery" is allowed before trial. That puts the defense at a big disadvantage. However, if there is also a refusal case pending from the same arrest, things change: the driver can take depositions of the police officers -- essentially cross-examining the police before the trial -- as well as requiring sworn answers to written questions and the production of documents such as police field sobriety test training manuals.

Not only does this allow the defense to be better prepared, it can sometimes mean the difference between winning and losing the case. When the defense has taken the arresting officer's deposition, it knows before the trial what he's going to say. That can allow the defense to prepare to discredit the officer's testimony, as well as allowing the use of his deposition statements to discredit the officer's credibility if he changes his story.

And it can even, in some circumstances, keep the case from coming to court.