If I've been drinking and get pulled over by a police officer, should I submit to a field sobriety test?
According to attorney Joe Veenstra, the simple answer is "yes," assuming you have not been arrested in the past for drunken driving. If you are shown to be operating while intoxicated, you could pay a fine and penalties of between $811.50 and $1,050.50, lose your regular license for six to nine months, be mandated to obtain and pay for an alcohol assessment and could be required to get an ignition interlock on your vehicles. A second and third offense is a traffic crime, a misdemeanor that will put you in jail. A fourth offense or higher OWI is a felony that risks a prison sentence.
An officer must have probable cause that you were driving while impaired as evidenced by your driving behavior. For example, stopping you for a burned out headlight and then smelling alcohol is often sufficient to request field sobriety tests (heel to toe, one leg stand, etc.) and then a preliminary breath test. Legally, you don't have to take those tests, but refusing will give the officer probable cause to bring you to the station, where you will be informed that by driving on a public road you have, by statute, given "implied consent" to take a test for the presence of alcohol in your system. If you refuse to take the chemical tests, you can be charged for refusing to take a chemical test, which has penalties that are more severe than those for first offense OWI.
You then will be asked to either blow into a machine or provide a blood sample to be tested. Both tests intend to measure your intoxication level. In Wisconsin, if you fail this test, that is, if your blood/breath registers an alcohol level of .08 or greater (.08 grams per 210 liters of blood in your bloodstream), it is considered sufficient to prosecute you for driving with a prohibited alcohol concentration. Wisconsin law does not allow for contacting an attorney prior to taking the test.
While there may be rare instances when it may be better to refuse to take a chemical test, in most instances for a first offense, you should take the test.
Information provided by Joe Veenstra, criminal defense lawyer at Johns, Flaherty & Collins, SC, in La Crosse, Wisconsin. For more information on drunken driving laws, contact him at 608-784-5678.