– from Ronald P. in Sussex, WI
If I get stopped for drunk driving, do I have the option of calling an attorney before taking a breathalyzer?
Criminal Defense Attorney Response:
No. Consenting to a breathalyzer test in Wisconsin is implied.
In other words, merely by getting behind the wheel, you are consenting to a sobriety test — presuming there was probable cause for the traffic stop in the first place.
Further, a blood-alcohol or field sobriety test cannot legally be refused under the grounds of self-incrimination. The Wisconsin Court of Appeals in State v. Mallick (210 Wis.2d 427) found that such tests do not rise to the level of “testimonial communication” protected under the Fifth Amendment.
In short, if you refuse a sobriety test, you will be arrested for a DUI, DWI or OWI. Feel free to give us a call if you have more questions or need representation.
Jeff Hughes, J.D.