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.
