Refusal typically produces a one-year (or longer) revocation under the implied-consent administrative process, separate from the criminal OWI. Breath testing compulsion follows Birchfield; blood draws for criminal refusal penalties generally require a warrant. That is what separates Wisconsin refusing a breathalyzer from a generic national summary. Read Wis. Stat. § 343.305 before the background sections below. Wisconsin's implied-consent law (Wis. Stat. § 343.305) requires chemical testing upon lawful OWI arrest; refusal triggers an administrative review hearing and license consequences.
License suspension and administrative hearings
Refusal typically produces a one-year (or longer) revocation under the implied-consent administrative process, separate from the criminal OWI.
The DMV / administrative track often runs separately from the criminal DUI case. Missing the short window to request an administrative hearing can lock in a suspension even if the criminal charge is later reduced or dismissed. Always calendar the administrative deadline the same day as the arrest.
Criminal consequences of refusal
Breath testing compulsion follows Birchfield; blood draws for criminal refusal penalties generally require a warrant.
Under Birchfield v. North Dakota, the Fourth Amendment allows criminal penalties for refusing a warrantless breath test incident to a lawful DUI arrest, but generally requires a warrant (or a recognized exception) before the State may impose criminal penalties for refusing a blood draw. Missouri v. McNeely rejected a per-se exigency based solely on natural dissipation of alcohol in the blood. Wisconsin statutes and case law implement those federal baselines with local detail.
Can refusal be used as evidence?
Chemical results and refusal findings are routinely used in OWI prosecutions; refusal hearings have their own procedural track.
Prosecutors often argue consciousness of guilt; defense counsel emphasize confusion, inadequate advisories, or medical inability to provide a sample. The precise jury instruction language is state-specific — search Wisconsin opinions for “refusal” and “implied consent.”
A concrete Wisconsin scenario
Here is one way the Wisconsin pieces fit together. Change any fact and the statute may point somewhere else.
A driver is arrested for DUI in Wisconsin and refuses the evidentiary chemical test after the implied-consent advisory.
- Identify the administrative consequence under Wis. Stat. § 343.305: Refusal typically produces a one-year (or longer) revocation under the implied-consent administrative process, separate from the criminal OWI.
- Separate that track from the criminal case: Breath testing compulsion follows Birchfield; blood draws for criminal refusal penalties generally require a warrant.
- Ask whether the refusal can be argued to the jury: Chemical results and refusal findings are routinely used in OWI prosecutions; refusal hearings have their own procedural track.
- If the request is for blood rather than breath, apply the warrant rule: Breath is ordinary; blood is used for drugs, hospital cases, or when breath cannot be completed, usually under warrant when compelled.
In Wisconsin the refusal question is answered first by Wis. Stat. § 343.305, then by the administrative deadline and the criminal case.
Breath tests versus blood tests
Breath is ordinary; blood is used for drugs, hospital cases, or when breath cannot be completed, usually under warrant when compelled.
Practical tip: a driver who refuses breath may still face a warrant-backed blood draw. Refusal does not create a permanent shield against chemical evidence; it mainly adds administrative (and sometimes criminal) consequences on top of the underlying DUI case.
Practical tips
- Ask whether the stop and arrest were lawful — implied consent usually requires a lawful DUI arrest first.
- Diary the administrative hearing deadline immediately.
- Do not confuse portable roadside breath screens with the evidentiary breathalyzer at the station; statutes often treat them differently.
- Research Wisconsin opinions on implied consent, refusal, and license revocation in LawDiver before a contested DMV hearing.
Case law: implied consent and refusal in Wisconsin
STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Joel G. ZIELKE, Defendant-Respondent
WILLIAM A. BABLITCH, J. Does sec. 343.305, Stats., (the implied consent law) provide the exclusive means by which police may obtain chemical test evidence of driver intoxication thereby requiring suppression upon noncompliance with the law? The defendant, Joel G. Zielke (Zielke), was charged with four counts of homicide by intoxicated use of a motor vehicle. Blood was taken…
STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Joel G. ZIELKE, Defendant-Respondent is worth reading on Wisconsin implied consent / breathalyzer refusal because the court put the point in its own words: "WILLIAM A. BABLITCH, J. Does sec. 343.305, Stats., (the implied consent law) provide the exclusive means by which police may obtain chemical test evidence of driver intoxication thereby requiring suppression upon noncompliance with the law?" Use that passage as the starting point, then read the facts that precede it.
State of Wisconsin, Plaintiff-Respondent, v. Franklin J. Neitzel, Defendant-Appellant
…t to counsel is afforded by Wisconsin law. By reason of the implied consent law, a driver, when he applies for and receives an operator’s license, submits to the legislatively imposed condition on his license that, upon being arrested and issued a citation for driving under the influence of an intoxicant, contrary to sec. 346.63(1), Stats., he consents to submit to the prescrib…
Practitioners open State of Wisconsin, Plaintiff-Respondent, v. Franklin J. Neitzel, Defendant-Appellant when Wisconsin implied consent / breathalyzer refusal turns on the distinction in this sentence: "By reason of the implied consent law, a driver, when he applies for and receives an operator’s license, submits to the legislatively imposed condition on his license that, upon being arrested and issued a citation for driving under the influence of an intoxicant, contrary to sec." Do not lift it out of the facts the court was deciding.
State of Wisconsin, Plaintiff-Respondent, v. Dennis J. Reitter, Defendant-Appellant
…to the administration of a chemical test under Wisconsin's implied consent statute, Wis. Stat. § 343.305. A related question, whether the due process clause of the Wisconsin Constitution imposes an affirmative duty upon police officers to advise defendants that the right to counsel does not attach to the implied consent statute, was not certified to this court but was raised b…
Wisconsin opinions such as State of Wisconsin, Plaintiff-Respondent, v. Dennis J. Reitter, Defendant-Appellant are cited where implied consent / breathalyzer refusal is disputed. The court stated: "Wisconsin's implied consent statute, Wis. Stat. § 343.305." That is the language to brief; the rest of the decision supplies the procedural posture.
In Matter of Suspension of Operating Privilege of Richard W. Bardwell: City of Madison, Appellant, v. Richard W
….64(1) (a), adopting sec. 346.63(1) (a), Stats. Wisconsin’s Implied Consent Statute, sec. 343.305, Stats., provides that any person issued a citation for driving while intoxicated must submit to a chemical test designated by the Police Department if so requested by the traffic officer unless the refusal is reasonable. The issue here is whether respondent Richard W. Bardwell’s r…
Wisconsin opinions such as In Matter of Suspension of Operating Privilege of Richard W. Bardwell: City of Madison, Appellant, v. Richard W are cited where implied consent / breathalyzer refusal is disputed. The court stated: "Stats. Wisconsin’s Implied Consent Statute, sec. 343.305, Stats., provides that any person issued a citation for driving while intoxicated must submit to a chemical test designated by the Police Department if so requested by the traffic officer unless the refusal is reasonable." That is the language to brief; the rest of the decision supplies the procedural posture.
State of Wisconsin, Plaintiff-Appellant, v. Jay D. Krajewski, Defendant-Respondent-Petitioner
…erson refuses to submit to a requested blood test under the implied consent statute but offers to submit to a breath test in lieu of a blood test. ¶ 2. The circuit court for Jefferson County, Jacqueline R. Erwin, Judge, suppressed the results of the blood test administered to the defendant, Jay D. Rra-jewski, following his arrest for OWI. The circuit court *104concluded that a…
State of Wisconsin, Plaintiff-Appellant, v. Jay D. Krajewski, Defendant-Respondent-Petitioner is worth reading on Wisconsin implied consent / breathalyzer refusal because the court put the point in its own words: "The circuit court for Jefferson County, Jacqueline R. Erwin, Judge, suppressed the results of the blood test administered to the defendant, Jay D. Rra-jewski, following his arrest for OWI." Use that passage as the starting point, then read the facts that precede it.
State of Wisconsin, Plaintiff-Respondent, v. Gary F. Lemberger, Defendant-Appellant-Petitioner — Abrahamson, J
…has regulated breath tests for drunk drivers. See Wisconsin Implied Consent Law, Wis. Stat. § 343.305. ¶ 45. The Wisconsin Implied Consent Law does not empower law enforcement officers to take a sample of a driver's breath forcibly (if that is even possible). To acquire a driver's participation and cooperation in the administration of a breath test, the Implied Consent Law requ…
Practitioners open State of Wisconsin, Plaintiff-Respondent, v. Gary F. Lemberger, Defendant-Appellant-Petitioner — Abrahamson, J when Wisconsin implied consent / breathalyzer refusal turns on the distinction in this sentence: "See Wisconsin Implied Consent Law, Wis. Stat. § 343.305. ¶ 45. The Wisconsin Implied Consent Law does not empower law enforcement officers to take a sample of a driver's breath forcibly (if that is even possible)." Do not lift it out of the facts the court was deciding.
State of Wisconsin, Plaintiff-Respondent, v. Donald D. Marshall, Defendant-Appellant
….305(9)(a), because law enforcement has no right, under the implied consent law, either to forcibly withdraw blood without an arrestee's consent or to obtain an arrestee's consent by threatening to forcibly withdraw blood. ¶ 8. WISCONSIN STAT. § 343.305(9)(a) states, in relevant part: "If a person refuses to take a test under *417 sub. (3) (a), the law enforcement officer shall…
Wisconsin opinions such as State of Wisconsin, Plaintiff-Respondent, v. Donald D. Marshall, Defendant-Appellant are cited where implied consent / breathalyzer refusal is disputed. The court stated: "WISCONSIN STAT. § 343.305(9)(a) states, in relevant part: 'If a person refuses to take a test under *417 sub." That is the language to brief; the rest of the decision supplies the procedural posture.
Key takeaways
- Primary authority: Wis. Stat. § 343.305.
- Administrative hit: Refusal typically produces a one-year (or longer) revocation under the implied-consent administrative process, separate from the criminal OWI.
- Criminal exposure: Breath testing compulsion follows Birchfield; blood draws for criminal refusal penalties generally require a warrant.
- Evidence: Chemical results and refusal findings are routinely used in OWI prosecutions; refusal hearings have their own procedural track.
- Blood vs. breath: federal Supreme Court doctrine in Birchfield and McNeely still frames warrant rules.
Implied consent in Wisconsin
Wisconsin's implied-consent law (Wis. Stat. § 343.305) requires chemical testing upon lawful OWI arrest; refusal triggers an administrative review hearing and license consequences.
Implied consent is not the same as a Miranda warning. Officers typically must advise of the consequences of refusal before requesting a chemical test. Failure to give a required advisory can affect whether the administrative suspension sticks — a frequent issue in Wisconsin appellate opinions.
Frequently asked questions
What happens if I refuse a breathalyzer in Wisconsin?
Refusal typically produces a one-year (or longer) revocation under the implied-consent administrative process, separate from the criminal OWI. Breath testing compulsion follows Birchfield; blood draws for criminal refusal penalties generally require a warrant.
Is refusal a separate crime in Wisconsin?
Breath testing compulsion follows Birchfield; blood draws for criminal refusal penalties generally require a warrant.
Will the prosecutor tell the jury I refused?
Chemical results and refusal findings are routinely used in OWI prosecutions; refusal hearings have their own procedural track.
Do I need a warrant for a blood draw?
Breath is ordinary; blood is used for drugs, hospital cases, or when breath cannot be completed, usually under warrant when compelled. See also Birchfield and McNeely linked above.