The 10-day deadline
This is not flexible. Under §343.305(9)(a)(5), you must submit a written request for a refusal hearing to the court within 10 days of the date the Notice of Intent to Revoke was issued. If you miss this deadline, the revocation takes effect automatically and cannot be challenged.
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.
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 appropriate court.
- 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
| Prior OWI history | Refusal revocation period |
|---|---|
| No prior offenses | 12 months |
| 1 prior offense | 24 months |
| 2 prior offenses | 36 months |
| 3+ prior offenses | 36 months |
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 arrest lawful?
The officer must have had probable cause for the OWI arrest before requesting the chemical test. If the arrest was unlawful (illegal stop, fabricated probable cause, or insufficient field sobriety evidence) 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
Under §343.307, a refusal revocation counts as a prior offense for purposes of escalating future OWI charges. A refusal revocation alone, even without an OWI conviction, can push your next OWI into a higher penalty tier. A refusal on what would have been a 1st offense can make your next arrest a 2nd-offense criminal charge.
Occupational license during a refusal revocation
You may be eligible for an occupational (hardship) license during the revocation period. Requirements include:
- Installation of an IID on every vehicle registered in your name
- Proof of SR-22 insurance filing
- A waiting period (typically 30 days for a 1st refusal, longer for subsequent)
- Court approval with specified driving hours, routes, and purposes
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.
