The 10-day deadline, and where the request goes
This is not flexible. §343.305(9)(a)4 requires that you request a hearing within 10 days “by mailing or delivering a written request to the court whose address is specified in the notice.” That is the court, not the DOT, and it is the specific court printed on your Notice of Intent to Revoke: the circuit court for the county of arrest, or the municipal court if the arrest was on a municipal ordinance and that municipality has one. There is no 13-day mail extension on this deadline; the 13-day variant applies only to the separate DOT administrative-review request under §343.305(8)(b)1. Filing the right paper in the wrong place loses the deadline.
If no hearing is requested, the revocation is not instantaneous. §343.305(10)(a) provides that “[i]f no hearing was requested, the revocation period shall begin 30 days after the date of the refusal,” and if a hearing was requested it begins 30 days after the refusal or on a final determination that the refusal was improper, whichever is later. That 30-day gap is not a second chance to request a hearing. It is only a delay in when the revocation starts running.
Do this today: If you refused the chemical test and have not yet requested a hearing, call (262) 632-5000 immediately. We can file the hearing request the same day. Every day that passes narrows your options.
Do I need a lawyer for a refusal hearing?
Yes, if the 10-day window is still open or the refusal has already been noticed. The hearing is narrow, but a win can prevent the refusal revocation from sticking. It can also create testimony and support for the OWI case. Our first-OWI decision guide explains why refusal deadlines should be reviewed before any plea.
One caveat on timing: the right to counsel attaches after arrest, not at the roadside. Our breakdown of the Tony Romo OWI stop shows why officers will not pause a roadside OWI investigation so you can call a lawyer, and why the calls you make in the days after matter far more.
How the implied consent refusal process works
- Arrest: Officer establishes probable cause for OWI and places you under arrest.
- Informing the Accused: Officer reads the “Informing the Accused” form, a standardized document that explains the consequences of refusing and the consequences of submitting to testing. This reading must comply strictly with statutory requirements.
- Refusal: You decline the evidentiary test (breath or blood). The officer issues a Notice of Intent to Revoke your operating privilege.
- 10-day window: You (or your attorney) file a written hearing request with the court whose address appears on the notice, circuit or municipal.
- Refusal hearing: The court examines whether the officer had grounds to arrest, whether the “Informing the Accused” was properly administered, and whether the refusal was unreasonable.
Refusal revocation penalties
| Counted tier under §343.307(2) | Refusal revocation period and occupational-licence wait |
|---|---|
| First improper refusal (§343.305(10)(b)2) | 12 months; occupational licence after the first 30 days |
| Count equals 2, priors within a 10-year period (§343.305(10)(b)3) | 24 months; occupational licence after 90 days, or after one year if 2 or more counted offences fall in any 5-year period |
| Count equals 3 or more, no time limit (§343.305(10)(b)4) | 36 months; occupational licence after 120 days, or after one year in the 5-year pattern |
| Minor passenger under 16 (§343.305(10)(b)4m) | The applicable period above is doubled |
| Refusal after arrest under §346.63(2m) or (7) (§343.305(10)(em)) | 6 months (12 with a minor passenger); occupational licence after 15 days; does not count as a prior refusal or revocation |
These revocation periods are separate from any revocation imposed for the underlying OWI conviction, but they run concurrently with it - the longer of the two controls when you can drive again. The refusal revocation stands on its own even if the OWI charge is later dismissed or reduced, which is why the 10-day hearing deadline matters regardless of how the criminal case plays out.
Defenses at the refusal hearing
Was the stop lawful, and was the arrest lawful?
Both are in scope. §343.305(9)(a)5.a. asks whether the officer had probable cause and “whether the person was lawfully placed under arrest.” State v. Anagnos, 2012 WI 64, held that this second clause lets the circuit court “entertain an argument that the arrest was unlawful because the traffic stop that preceded it was not justified by either probable cause or reasonable suspicion.” Older summaries that describe the refusal hearing as a rigid three-issue proceeding that cannot reach the stop are relying on shorthand Anagnos rejected. If the stop or the arrest was unlawful, the refusal revocation falls with it.
Was “Informing the Accused” read correctly?
The “Informing the Accused” form must be read completely and accurately. Officers must use the version current as of the arrest date. Deviations can invalidate the refusal: skipping sections, paraphrasing, reading an outdated version, or reading it in a language the accused doesn’t understand.
Was the refusal truly a refusal?
Not every non-compliance is a legal refusal. Common scenarios we challenge:
- Inability vs. refusal: Medical conditions (asthma, anxiety, COPD) that prevent a sufficient breath sample are not refusals.
- Confusion: If the accused asked questions, requested an attorney, or appeared confused rather than defiant, the conduct may not constitute a legal refusal.
- Ambiguous response: Silence or equivocal statements (“I don’t know”) require the officer to clarify before declaring a refusal.
- Coercion: Threats beyond what the statute authorizes (e.g., threatening to take children, threatening additional charges for refusing) can taint the process.
The refusal and the OWI charge are separate proceedings
A critical point many people miss: the refusal hearing is a civil administrative proceeding about your license. The OWI charge is a separate criminal (or civil-forfeiture) case. Winning the refusal hearing does not dismiss the OWI. Losing the refusal hearing does not prove the OWI. But the two proceedings share facts, and the strategy in one affects the other. They should be handled by the same attorney with a unified defense theory.
Refusal and the OWI offense count, after Forrett
§343.307(1)(f) lists “[r]evocations under s. 343.305 (10)” among the priors a court counts. But that is no longer the whole answer. State v. Forrett, 2022 WI 37, held that “Wis. Stat. §§ 343.307(1) and 346.65(2)(am) are 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.”
Read the limits carefully, because they matter both ways:
- Blood only. Forrett rests on Birchfield v. North Dakota, 579 U.S. 438 (2016) (federal, U.S. Supreme Court), which held that a warrantless breath test is a permissible search incident to arrest while a warrantless blood draw is not. A revocation for refusing a breath test is not covered.
- Criminal penalty only. The civil consequence stands. Forrett expressly leaves in place a state’s power to impose “civil penalties, such as revoking a person’s operating privileges, for refusing a warrantless blood draw.”
- Stand-alone revocations only. Where the revocation and the OWI conviction arise out of the same incident, they are counted as one offence and no constitutional problem arises.
The practical effect: a stand-alone warrantless-blood refusal revocation on what would have been a 1st offense cannot constitutionally be used to make your next arrest a 2nd-offense criminal charge. Prosecutors do still charge this way, which is why the prior-offence audit has to identify what kind of test was refused and whether a warrant was obtained.
Occupational license during a refusal revocation
You may be eligible for an occupational (hardship) license during the revocation period. Requirements include:
- An IID on each motor vehicle for which your name appears on the certificate of title or registration, where the court entered a §343.301(1g) order, plus the $50 IID surcharge, both prerequisites under §343.10(2)(f)
- Proof of financial responsibility under §343.38(1)(c)
- A waiting period: 30 days after a first improper refusal (§343.305(10)(b)2), 90 days or one year at the 2-year tier, 120 days or one year at the 3-year tier
- Definite restrictions under §343.10(5)(a)1: not more than 12 hours in a day and not more than 60 hours in a week, with specified occupation, areas, and routes
- If you have 2 or more counted priors, §343.10(5)(a)2 requires the occupational licence to prohibit driving with an alcohol concentration above 0.0
The clock is running. If you refused the chemical test, every day that passes without filing a hearing request is a day closer to losing the right to challenge the revocation. Call (262) 632-5000 now. We file same-day in Racine, Kenosha, and Walworth counties.
