If an officer tells you the roadside breath test is required, that things will go easier if you just take it, or that they already know what your number is going to be, none of those statements has to be true. Police are allowed to use deception during an investigation, and courts have declined to throw out statements for that reason alone.
That is the hook. Here is the part that is actually worth memorizing, because in Wisconsin it decides more cases than the lie does:
- Field sobriety tests are voluntary. No statute compels them.
- The roadside breath test is a screening device under Wis. Stat. § 343.303. Its result cannot be used to prove impairment, and the statute imposes no penalty for declining it.
- The test after arrest is a different test. That is the evidentiary test under Wis. Stat. § 343.305, offered after the Informing the Accused form is read to you, and refusing that one triggers an automatic revocation.
- Almost everyone confuses 2 and 3. They look alike, they happen an hour apart, and they are not the same decision.
We are Cafferty, Scheidegger & Johnson, S.C., a criminal defense firm at 840 Lake Avenue in Racine with a second office at 7001 30th Avenue in Kenosha, and we have defended OWI cases in these counties since 1994. The phone is answered around the clock at (262) 632-5000 and the first conversation costs nothing. Nothing below is legal advice about your case; it is the law we would explain to you on that call.
What “police can legally lie” actually means
The rule is federal, not Wisconsin. It comes from Frazier v. Cupp, 394 U.S. 731 (1969), where officers falsely told a suspect that a companion had already confessed. The U.S. Supreme Court called the misrepresentation “relevant” but held it was, in its words, “insufficient in our view to make this otherwise voluntary confession inadmissible.” Voluntariness is judged on the totality of the circumstances, and Wisconsin courts apply that same framework.
So an officer may tell you a witness said something, may describe a test as standard procedure, and may suggest that cooperating now will be better for you later. None of that is a promise, and none of it has to be accurate.
Two honest qualifications, because the internet version of this fact is usually overstated:
- Deception is not unlimited. A statement that is genuinely coerced is still suppressible. The line between persuasion and coercion is what a suppression motion litigates, and the facts of the stop decide it.
- This is not a defense by itself. “The officer misled me” is an argument about the weight and admissibility of what followed, not a reason a case gets dismissed on request.
The practical version: what the officer tells you at the roadside is not legal advice about your rights, and it is not a neutral summary of Wisconsin law. It is part of an investigation.
The three roadside requests, and which ones you can decline
A Wisconsin OWI stop asks you for three separate things, usually in this order. People experience them as one continuous event. Legally they are not.
| Field sobriety tests | Preliminary breath test (PBT) | Evidentiary chemical test | |
|---|---|---|---|
| When | Roadside, before arrest | Roadside, before arrest | After arrest, at the station, jail or hospital |
| Statute | No compelling statute | Wis. Stat. § 343.303 | Wis. Stat. § 343.305 |
| What it is for | Building probable cause | Screening, to decide whether to arrest | Proving the case |
| Result admissible to prove impairment? | Officer testifies to what he observed | No. Probable cause only | Yes |
| Penalty for declining | None automatic | None. Wis. Stat. § 939.61(1) does not apply | Revocation of 12, 24 or 36 months under Wis. Stat. § 343.305(10). Listed as a prior in Wis. Stat. § 343.307(1)(f), but State v. Forrett, 2022 WI 37, bars counting a stand-alone warrantless-blood-refusal revocation to increase a later criminal penalty |
The statute is unusually blunt about the middle column. Wis. Stat. § 343.303 provides that the result of a preliminary screening test “shall not be admissible in any action or proceeding except to show probable cause for an arrest, if the arrest is challenged, or to prove that a chemical test was properly required or requested,” and that the general penalty provision under Wis. Stat. § 939.61(1) “does not apply to a refusal to take a preliminary screening test.”
Since 2025 Wisconsin Act 99, the same statute also covers the roadside oral-fluid swab. Act 99 added saliva testing to Wis. Stat. § 343.303, not to the implied consent statute, which is why declining the swab carries no implied consent revocation either. Our roadside saliva test page works through what that law did and did not change.
None of this means declining is automatically the right move. Declining the field sobriety tests and the PBT tends to lead to an arrest on whatever the officer has already observed, and then to the test that does count. The point is that you should know which decision you are making. A driver who blows into the handheld device because they were told they had to has given up a screening result they were never obliged to provide.
The one refusal that has a price
The evidentiary test is the one with consequences, and Wisconsin’s implied consent law makes those consequences automatic rather than discretionary.
Refusing after a lawful arrest triggers revocation under Wis. Stat. § 343.305(10): 12 months for a first refusal, 24 for a second, 36 for a third or subsequent. Wis. Stat. § 343.307(1)(f) lists that revocation as a counted prior, subject to State v. Forrett, 2022 WI 37, which held the counting scheme unconstitutional “to the extent that they count prior revocations resulting solely from a person’s refusal to submit to a warrantless blood draw as offenses for the purpose of increasing the criminal penalty.” Forrett is blood only and does not reach breath refusals, which is how people end up facing a criminal second offense without ever having been convicted of a first.
You get 10 days from the date on the Notice of Intent to Revoke to demand a refusal hearing under Wis. Stat. § 343.305(9). That hearing is narrow. Under Wis. Stat. § 343.305(9)(a)5 it asks three questions and only three: whether the officer had probable cause, whether the Informing the Accused was read correctly, and whether you actually refused. Whether you were impaired is not on the table.
The second of those three questions is where the theme of this post lands somewhere useful. If the warnings you were read were garbled, incomplete or oversupplied with information that was not in the form, that is a live issue at the refusal hearing, and it is litigated on the squad video and the recording, not on anyone’s memory. Our refusal hearing page covers the mechanics, and the first 30 days post covers how the 10-day windows interact with the court date.
Why you cannot just call us from the roadside
This is the question we get most often, and the honest answer is not the comfortable one.
The Wisconsin Supreme Court held in State v. Neitzel, 95 Wis. 2d 191, 289 N.W.2d 828 (1980), that Wisconsin’s implied consent statute “makes no provision for a right to counsel,” and that a driver “who conditions submission to a chemical test upon the ability to confer with an attorney ‘refuses’ to take the test.” Ask for counsel and then decline to blow, and that can be the refusal itself, with the full revocation and the prior-offense consequence attached. The court confirmed in State v. Reitter, 227 Wis. 2d 213, 595 N.W.2d 646 (1999), a case that came up out of Racine County, that where a driver exhibits no confusion, the officer is under no affirmative duty to advise that the right to counsel does not attach here. An officer’s only duty, the court held, is to read the “Informing the Accused” form.
That is a real asymmetry, and pretending otherwise would be dishonest. What it means practically is that the phone call that matters happens after, not during, and that it should happen quickly, because both 10-day clocks start running from the paperwork in your hand rather than from your first court date. Our post on the Tony Romo stop in Milwaukee County walks through the same issue with body-cam footage attached.
Miranda is not the shield people think it is
Two common beliefs, both wrong.
“They never read me my rights, so the case gets thrown out.” Miranda attaches to custodial interrogation. Wisconsin courts apply the federal standard from Berkemer v. McCarty, 468 U.S. 420, 440 (1984): the safeguards attach once a suspect’s freedom of action is curtailed to a degree associated with formal arrest. An ordinary traffic stop is not normally that, so questions asked before an arrest usually do not require a warning and the answers usually come in. It is not automatic, though. A stop can become custodial depending on the degree of restraint, and the test is whether a reasonable person in the driver’s position would have considered themselves in custody.
“It is my word against his.” Less often than you would think. Wis. Stat. § 968.073 makes it the policy of this state that custodial interrogations of felony suspects be recorded, and Wis. Stat. § 968.073(3) provides that officers are not required to tell you a recording is being made. Add squad video and body-cam and most of what happened is on a file somewhere. That cuts both ways, which is precisely why preservation letters go out in the first week of a case rather than the fourth month, while retention schedules are still on our side.
What politeness at the roadside actually buys you
It does not buy you a warning, and it does not buy you a better plea offer. It buys you a clean record of the stop.
- Provide your license, registration and proof of insurance, and comply with lawful commands. That part is not optional.
- Answer identification questions. You are not required to narrate the evening. “Where have you been tonight” and “how much have you had” are investigative questions, and the answers go into the report and onto the video.
- Do not argue. Nothing said on the shoulder of the highway has ever improved a case, and all of it is recorded.
- Write down what you remember as soon as you are home, while it is fresh. Time of the stop, what was said, how long you stood outside, what the roadside conditions were.
Wisconsin charges nearly every OWI under two theories at once, Wis. Stat. § 346.63(1)(a) for impairment and Wis. Stat. § 346.63(1)(b) for the prohibited alcohol concentration. That is why what you say about how much you drank can matter even in a case that looks like it is only about a number.
If it already happened
If you took the roadside test because you were told you had to, or refused the station test because you thought it was the same device, the decision is behind you and the next one is in front of you. Read the paperwork the officer handed you, find the date on it, and count ten days.
Call (262) 632-5000 or use our contact form. We serve Racine, Kenosha and Walworth counties, and the first conversation is free whether or not you hire anyone.
Related reading: Refusal hearings · Administrative suspension · Roadside saliva testing under Act 99 · Prohibited alcohol concentration · 1st-offense OWI · The first 30 days after a Racine OWI arrest · Can an OWI be dismissed in Wisconsin?
Speeding, points, license-status tickets and other non-impaired traffic matters are handled by our traffic practice at racineticket.com. Questioning, Miranda and interrogation issues in any other criminal charge are covered by the main firm at racinelaw.com.
This post is general information about Wisconsin law, not legal advice, and reading it does not create an attorney-client relationship.
