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.
