Is an OWI / DUI Blood Test After Two Hours Legal in Milwaukee?

Is an OWI _ DUI Blood Test After Two Hours Legal in Milwaukee_ Image

Were you arrested for operating a motor vehicle while intoxicated (OWI) in Wisconsin? Did the officers wait and only give you a DUI blood test after you’d been in custody for two hours? Depending on the circumstances of your arrest, a delayed blood test could harm your defense.

Sometimes, police use underhanded tactics to make the evidence against a defendant look worse. And even if the police aren’t intentionally doing this, their actions could hurt you in the long run.

If police arrested you on charges of OWI, you need an experienced OWI defense attorney. Contact Hart Powell, S.C. for a consultation. We’ll review your case, gather evidence that supports your side of the story, and fight back against your charges.

Implied Consent Law

When law enforcement pulls you over for suspected drunk driving, they will probably ask you to perform field sobriety tests. These tests, such as walking heel to toe in a straight line or standing on one leg, are voluntary. However, chemical tests are not.

In Wisconsin, anyone who has a drivers’ license is deemed to have given their consent to chemical tests of their blood, urine, or breath. If someone refuses a breathalyzer test, their license will be revoked. An initial offense results in a one-year revocation. Subsequent offenses result in longer revocations.

What Is the Three-Hour Presumption for DUI / OWI?

Wisconsin Statute 885.235(1g) limits prosecutors’ use of BAC readings under certain circumstances. If police officers took BAC readings within three hours of the alleged OWI, prosecutors may use those readings as evidence:

  • If your BAC was over 0.0 but below 0.8, prosecutors may use it when they argue that you were under the combined influence of drugs and alcohol at the time of the arrest.
  • If your BAC is over 0.4 but below 0.8, prosecutors may use it to argue you were intoxicated at the time of the arrest.
  • If your BAC was over 0.8, the reading is prima facie evidence that your BAC was over 0.8 at the time of the arrest.
  • If your BAC is over 0.4 and you were operating a commercial motor vehicle, the reading is prima facie evidence that your BAC was over 0.4 at the time of the arrest.

Additionally, Statute 885.235(1m) states that if your BAC was over 0.0 and you were under 21 at the time of the arrest, the reading is prima facie evidence that your BAC was over 0.0 at the time of the arrest.

Prima facie evidence is evidence that the court deems to be factual unless proven otherwise. This type of evidence applies to underage and commercial drivers because stricter BAC limits apply to them.

What If the Police Take Your BAC After Three Hours?

If the police test your BAC after three hours, it does not automatically disqualify it from being used against you. However, Statute 885.235(3) states that, in this case, prosecutors will also need accompanying expert testimony for this evidence to be admissible.

There’s a fine line for police and prosecutors here. If they wait too long to test your BAC, they need additional evidence to claim that you were intoxicated. So, something many people rightfully ask is, “Why is my DUI blood test taking so long?” Shouldn’t the police want to do the test as soon as possible?

The answer lies in how alcohol interacts with your body.

Rising BAC in the Hours After Drinking

Many people charged with DUI think that a delay in testing their BAC will benefit them. After all, the only way to get alcohol out of your system is to wait for your body to expel it. But how much does your BAC go down in two hours?

One study that tested the BAC levels over time of men after drinking beer, wine, or vodka and tonic found some bad news. The men’s BAC reached its peak between 36 to 80 minutes after a single drink, depending on the type of alcohol. One beer took an hour to reach the maximum BAC before slowly dropping.

Unless you’re a man who only had one drink, your BAC peak will likely be higher and farther out in time than what the study found. What is your BAC after two hours? That depends on many factors, including:

  • The number of drinks you consumed
  • The amount of time in which you consumed the drinks
  • Your weight
  • Your sex
  • The levels of enzymes in your body that break down alcohol
  • The medications you’re on
  • The food in your system

If you had two or three drinks, those drinks, in conjunction with these other factors, mean your BAC may not peak for a few hours. This delayed peak is why police sometimes wait to perform the test. You may not have exceeded a BAC of 0.8 when they arrested you. But a few hours later, your BAC might be above that limit.

Combating BAC Measurements Taken Hours After Arrest

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If Wisconsin police delayed taking your OWI blood test results, your attorney may be able to dispute the results. But how can an attorney do this?

Prosecutors aren’t the only ones who can make use of expert witnesses. With the help of an expert, your attorney may be able to demonstrate that the OWI test was a failure.

Let’s say the police pulled you over and arrested you five minutes from your home. They then waited two hours to take your BAC readings, and the results showed a BAC of 0.8. The expert witness hired by your attorney could show that your BAC rose over those two hours.

Further, they could state that you would have made it home with a BAC well beneath the 0.8 limit had the officers not stopped you. Expert testimony like this could favorably influence your case.

Wisconsin OWI Defense Attorneys

Did law enforcement arrest you for an OWI offense in Milwaukee, Wisconsin? If so, you need an OWI defense attorney who will fight for your rights. Call (414) 271-9595 or contact us online to schedule a consultation with one of the experienced criminal defense attorneys at Hart Powell, S.C..

Written by Michael Hart & Craig Powell

Last Updated : July 9, 2024