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DUI & Refusal (1st OWI) - A double Whammy

Appleton, WI |

Can both these charges be dismissed? From research, it sounds like these two charges are constitutionally well-built statues among many state's justice system to increase OWI convictions or the consequences thereof. Unfortunately I have found myself in this sticky situation. At the stop, I had to perform a Sobriety Field Test and PBT. I felt I was able to accomplish all the task of the sobriety test - I was able to follow the eye test and walk. It was after the PBT test that I was placed under arrest. I felt I was instructed to fail the PBT test. The 1st blow the officer felt the PBT was defective. The 2nd blow the officer said I blew "too hard". He then instructed me that I blow "normal" on the 3rd time. It was blowing normal then he said I was under arrest and read me my miranda rights.

It was during this time when he also included the Implied Consent Law notice. Of course, the immediate reply is I want to see a lawyer! BAM! Refusal Charge!.. I am anxious to see the discovery and hope there is recorded audio and video. At the stop, I even questioned how you blow "normal"? I will be seeking a DUI attorney but it seems like because of this being constitutionally protected, a DUI attorney would only be good for damage control and not proving my innocence. Is this a correct prediction? I know this is only my personal account, so please don't attack this post but to re-iterate my question what are the likihood to dismiss both charges and are there any types of defense to a refusal charge?

Attorney Answers 4


  1. Both charges can be dismissed if there is a legal or factual justification for such a ruling. Call and consult with a local DUI attorney.


  2. The only way to get an OWI "dismissed" is to take it to Trial. Granted trials and attorneys are expensive, but when it come to an OWI this is the only way to save your job, license, and reputation. The Field Sobriety Tests are flawed and often the police fail to follow procedures. You must consult an experienced OWI attorney.

    This is not intended as legal advice. It is only provided for educational purposes and cannot be relied upon as legal advice. Further no attorney client relationship is or has been formed by answering this question.


  3. Get a great local OWI attorney to review your case. They can tell you the odds after reviewing the stop and the procedure used for the field sobriety tests.

    In accordance with the Avvo community guidelines, this communication does not constitute "legal advice", nor does it form an attorney-client relationship. You should seek counsel in your geographic area regarding any specific questions.


  4. Whether you are likely to be convicted of both or either of these charges will depend upon the particular circumstances of your case, which you should discuss confidentially with an attorney. Many OWI and refusal charges are dismissed on the basis of an unlawful stop, unlawfully extended investigatory stop, or an arrest without probable case. Additionally, whether your request to speak with an attorney would constitute a refusal will also depend upon what discussion there was between you and the officer afterwards.

    What is critically important is that you request a hearing on the refusal immediately so that the deadline for the request is not missed. An attorney can help you file this if it is not clear to you. A refusal conviction can actually end up being more costly (due to the ignition interlock device) and the revocation period even longer than a 1st offense OWI. Even if you don't end up having a viable defense, it may be possible to have the refusal charge dismissed as part of a plea agreement.

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