Legal Question in DUI Law in Wisconsin

Drunk Driving Arrest Vehicle Search and Field Sobriety Tests

Officers stopping a vehicle for any good reason have the right to perform a weapons search of your person and all parts of the vehicle within your immediate reach. Any contraband found incident to such searches is useable as evidence against you. If they have additional probable cause, the warrantless searches can sometimes be extended to the trunk or any closed containers, although defendants have had increasing success recently in challenging such searches. Officers also have the right to search any place where you verbally OK a search, although the fruits of such searches can sometimes be suppressed by a judge if your consent was obtained under unduly coercive circumstances. These rules apply for all traffic stops, not just in drunk driving cases. You received bad information about the results of field sobriety tests not being admissible in court--they nearly always form the heart of the government's case. One thing which many citizens do not know is that drivers have the right to “respectfully refuse” to perform the traditional “walk and turn” type physical sobriety tests. In my experience, nobody ever passes these tests anyway (even when sober, about half of the population cannot pass them), so a drunken person is only helping to build the government’s case against them by performing the dexterity and mental acuity tests. The fifth amendment right not to incriminate oneself also still applies in drunk driving cases, so one has the right to “take the fifth” for many of the officer’s questions. One drawback is that the officer can lawfully consider some of these decisions to refuse the physical dexterity tests, etc., in deciding whether or not to arrest. Simply requesting a “PBT" or preliminary breath test on the road is a good alternative if you think that you can pass it with flying colors. The hand held PBT breath testing devices are not recognized by the DOT as sufficiently reliable for court use, except for establishing probable cause for the arrest. PBT’s are, however, an opportunity to avoid being arrested in the first place. The final test(s) will be given on an ECF machine back at the station, or via a blood draw at the hospital, and there is no right to refuse those without nearly permanent loss of your driving privileges. In second offense OWI cases or any other criminal case, there is no right to refuse the blood test—the officers will literally strap you to a gurney at the hospital and take the blood regardless of your wishes, and you will probably end up being charged with obstruction in addition to the original charge. Re-opening a case which is several years old is always difficult in drunken driving cases, although it is relatively easy in minor traffic cases. Technically, the time to reopen traffic cases is only six months, although that can be extended for legally sufficient reasons.