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Under Wisconsin's implied consent laws, police can request a blood draw. Police can even force a person to provide a sample of blood to test for alcohol or other drugs. However, the police stop must be legal, and a mere momentary crossing of the lane line does not create probable cause for police stop, says Wisconsin Court of Appeals as they rule in favor of Attorney Tracey A. Wood.

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owi blood tests

Wisconsin drunk driving blood tests

Police Blood Tests For Drunk Driving

Blood tests can provide the basis of your legal defense to a charge for operating a motorized vehicle under the influence of an intoxicant (alcohol, illegal drugs, prescription drugs, etc), whether you voluntarily submit to the test or it is forcibly taken from you. However, they can be challenged, and refusing to submit to a test will result in immediate suspension of all driving privileges.

Preventing Use of Blood Test Results

One way to prevent prosecution for a prohibited alcohol content level (PAC) or operating while under the influence of an intoxicant (OWI) charge is to prevent the use of blood test results.

A prosecuting attorney uses whatever evidence he has to prosecute the charges brought against you. If he has evidence supporting a prohibited alcohol content (PAC) violation, that evidence can either be used for prosecution of a prohibited alcohol content (PAC) violation or an operating while under the influence of an intoxicant (OWI) offense. If the blood tests are proven to have been obtained illegally, the prosecuting attorney will not have that evidence at trial.

Sometimes, people wonder whether they should hire an attorney to defend them against a DUI offense, and if so, when. The answer is that you should always hire an attorney to protect your rights, and you should do so as soon as possible. The sooner your attorney is involved, the more she or he is likely to be able to do to defend you successfully.

Attorney Tracey Wood is regarded as Wisconsin's foremost authority on drunk driving defense and among the top attorneys in the state regarding current and ever changing drunk driving laws. In many cases, she is called upon to appeal a drunk driving conviction that was ineffectively defended at trial, or incorrectly decided by the trial court. In a recent appellate case, Attorney Wood argued that the police stop was illegal, and the Wisconsin Court of Appeals agreed with her, and reversed the conviction of her client.

When the drunk driving defense attorneys at Van Wagner & Wood are brought into the case early in the process, they can often prevent the tremendous emotional and ongoing financial costs that many people realize from a single arrest for an OWI.

prohibited alcohol content level - OWI

If a blood draw was conducted, and if the results indicated that you were intoxicated, that is one piece of evidence that the Wisconsin state prosecuting attorney can (and likely will) use against you at trial. If the results supported that your blood alcohol content level was in excess of the legal limit, then police likely issued you two citations: one for violating the PAC - prohibited alcohol content level, and one for violating the OWI laws - driving while under the influence of an intoxicant. However, the state prosecuting attorney can only prosecute you for one of those offenses.

Forced Blood Draws - blood draw warrant

Under Wisconsin's search and seizure laws, police must obtain a warrant to conduct a search and seize property. The taking of your blood constitutes a seizure, as does an arrest. However, police have long relied on a legal theory established by prior case law called "exigent circumstances." Under that theory, if time is of the essence, and police cannot take additional time to acquire a search warrant, they can proceed without a warrant and even make a seizure (an arrest without warrant, a blood draw, etc.).

In a drunk driving case, if police wait for a considerable period of time before acquiring a blood sample, the chances are likely that the amount of alcohol in the bloodstream will change. It may be eliminated from the body, or it may be absorbed into the bloodstream. Any waiting period can then work for you, or against you.

Historically, the US District Courts (federal courts) have held the time needed for a warrant should be measured by the time that it would take police to apply for a warrant by telephone. The Wisconsin Supreme court has held that blood tests can be drawn without a warrant in exigent circumstances. Wisconsin Circuit Courts have been known to throw out a blood test conducted without a warrant when a breath test could have been obtained instead, because police lack "exigency" justification to proceed with a blood test without a warrant.

Implied Consent

Under Wisconsin's implied consent law, a person gives consent to be tested for alcohol (or other intoxicants including drugs) if they are arrested on probable cause for operating while under the influence of an intoxicant. After arrest, an "Informing the Accused" form is provided to the arrested person by police. That form threatens a person's driving privileges with revocation and "other penalties" if they should refuse to submit to a blood, breath or urine test. The request by police made after arrest with the threats could well be construed as coercion, which is unconstitutional.

Under the Constitution of the United States of America, a person has a right to privacy. That right has been duly noted by the US Supreme Court with regard to blood draws. The Court has indicated that other justifications may be required in order for police to secure tests to justify blood draws.

Refusing a blood test

If you refuse to submit to a blood test and no test is conducted, the prosecuting attorney will lack that evidence to use against you in a court of law. However, that does not mean that you cannot be charged with an OWI.

Forced Tests

Police have been known to forcibly take blood draws, and Wisconsin Circuit Courts have held that police can force a person to submit to a blood draw, including restraining the person in order for the blood draw to be conducted.

drunk driving charges

Under Wisconsin laws, you need not be proven to be intoxicated to be charged with a violation of operating while under the influence. The law states that you need only have shown a lack of ability to control your car (truck, van, etc.) with a steady hand. If police observed you driving erratically, probable cause may have been established to stop you, which then resulted in the subsequent arrest for drunk driving.

Blood Test Results

Regardless of the results of a blood test, there are many legal challenges that can be made for a person who has been charged with an OWI in Wisconsin, whether that person voluntarily or involuntarily had blood drawn.

Separate and Alternate Drunk Driving Tests

If a blood draw is conducted, whether voluntarily or by force, a person has a right to request that additional tests be conducted. If police refuse (or neglect) to allow you to have additional tests conducted, it is a violation of your rights under Wisconsin's implied consent laws. The Wisconsin Supreme Court has held that the prosecuting attorney cannot use police blood test results if police interfered with your right to obtain a separate test of your own, or an alternate test.

Drunk Driving Defense Attorney

If you have been arrested for drunk driving, you must act quickly to save your driver's license. Please call an attorney at Van Wagner & Wood right away for a brief, but professional free "first-impression" analysis of your drunk driving arrest and information about what you can and what you must do to preserve your rights and privileges under Wisconsin law. As Wisconsin's foremost authority on drunk driving defenses and the ever changing Wisconsin OWI laws, Attorney Tracey Wood is the first ever Wisconsin lawyer appointed to the Board of Regents for the National College for DUI Defense.

If you have already been convicted of drunk driving, you may have post-conviction remedies available to you that are often times missed by attorneys who are unfamiliar with prior drunk driving conviction challenges and appeals. Attorney Tracey Wood has won numerous appeals of prior OWI and refusal convictions. Please contact the law offices for a free initial "first impression" analysis of your appeal.

Contact Van Wagner & Wood

Please contact the attorneys at Van Wagner & Wood for a free, but professional brief "first-impression" analysis of your case.

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