Important Documents

Anytime you have been accused of OWI (essentially failing either a breath or blood tests by having a BAC of .08 or above) you will be given several documents that will help us start forming your defense:

• Informing the Accused (Implied Consent Law): This document tells you that you are required by law to give a sample of your blood, breath, or urine for the purpose of measuring your level of intoxication. In order take this sample, the officers must read the Informing the Accused form to you before they act.

• Notice of Intent to Suspend Driving Privileges: As a result of your arrest, the State will move to suspend your driver's license "administratively" (as opposed to "judicially") while your case is pending. As a result of this move by the state, you are entitled to an Administrative Suspension Review Hearing (ASRH) within 30 days of the date you were noticed that your license would be suspended. It is important to remember that you must request this hearing in writing within 10 days of your arrest. If, ultimately, you are suspended you may still be able to obtain an occupational license during this time (unless it is your 2nd OWI within 5 years). Any suspension time while your case is pending will be credited towards any future suspension or revocation that may result.

• Intoximeter read-out (if you took a breath test): The result of this test will go a long way in determining how to defend your case. If you are close to the "legal limit," you may want to focus on when and how the test was conducted, whether you were in the alcohol absorptive or discharge phase at the time of driving, and whether there may have been defects in the machine. If you tested high (.15 or above), you will want to focus on legal arguments that would exclude the test, or other damaging evidence altogether (illegal searches, non-Mirandized statements, etc.) If the results of the test does not correspond to what is observed on the squad video, you may have a disconnect defense.

• If you had blood drawn, then you will likely be sent the results (with a citation for operating with a "prohibited alcohol concentration") in the mail at a later date.

After the ASRH, you will have your initial appearance where you will enter a plea of not guilty. The matter will be set for a pretrial hearing where we will file motions challenging the stop, arrest, and admissibility of the chemical sample, when those motions are appropriate.

If these motions fail, you must either enter a plea to the charge or take the case to trial. At trial, we will challenge the validity of the field sobriety tests, chemical results, and the methodology used in obtaining those chemical results.

Operating a Vehicle While Under the Influence

1. That you operated a motor vehicle

2. On a public highway

3. That you were under the influence of an intoxicant at the time of driving such that it impaired your judgment and ability to drive with a steady hand

Operating with a Prohibited Alcohol Concentration

The state must prove that you had a prohibited alcohol concentration (PAC) of .08 or more at the time you were operating a motor vehicle. Having a PAC is a separate charge, but is considered strong evidence of intoxication. The State will usually charge both Drunk Driving and PAC offenses simultaneously, but by law you may only be convicted of one.

1st Offense

In the State of Wisconsin, a first offense drunk driving is treated in civil municipal courts, not criminal courts (although there are proposals currently pending that would make this a criminal offense as it is in every other state). We will appear in court on your behalf at the initial appearance to enter a not guilty plea for you. Because this is not a criminal proceeding we need to request a 6-person jury trial within 10 days of that initial appearance. If we do not make that request and pay the corresponding fee, the trial will be held in front of a judge, not a jury.

> Wisconsin penalties for 1st Offense OWI:

• $150-$300 fine, plus costs and surcharges (usually totaling about $750)
• 6-9 month revocation of driving privileges

2nd Offense (within 10 years)

A 2nd offense OWI is a criminal charge and carries a mandatory jail sentence if you are convicted.

> Wisconsin penalties for 2nd Offense OWI:

• $350-$1,100 fine, plus costs and surcharges
• 5-180 days in jail
• 12-18 month revocation of driving privileges

3rd Offense (lifetime)

A third offense OWI is a criminal charge and carries a mandatory jail sentence if you are convicted.

> Wisconsin penalties for 3rd Offense OWI:

• $600-$2,000 fine, plus costs and surcharges
• 30-365 days in jail
• 24-36 month revocation of driving privileges
• Additionally, the court may order seizure of vehicle, Impose an Ignition Interlock Device, or immobilize the vehicle.

4th Offense (lifetime)

A fourth offense OWI is a criminal charge and carries a mandatory jail sentence if you are convicted. The legal BAC limit for 4th offenses goes down to a .02

> Wisconsin penalties for 4th Offense OWI:

• $600-$2,000 fine, plus costs and surcharges
• 60-365 days in jail
• 5 year revocation of driving privileges
• Additionally, the Court may Order seizure of your vehicle, impose an Ignition Interlock Device, or immobilize the vehicle.

5th and subsequent Offenses (lifetime)

A fifth or subsequent OWI offense is a felony criminal charge and carries a mandatory jail sentence if you are convicted. The legal BAC limit for 5th or subsequent offenses goes down to a .02.

> Wisconsin penalties for 5th Offense OWI:

• $600-unlimited fine, plus costs and surcharges
• 6 month minimum jail
• 5 year revocation of driving privileges
• Additionally, the court may order seizure of vehicle Impose an Ignition Interlock Device or immobilize the vehicle.

Injury by Intoxicated Use of a Motor Vehicle

This is a separate charge from OWI and is regularly charged when someone in the driver's vehicle, someone in another vehicle, or a pedestrian is injured as a result of the operating by the driver. The penalties for this crime depend on the nature of the injuries caused.

> Wisconsin penalties for Injury by Intoxicated Use of a Motor Vehicle:

For minor injuries:

• $300-2,000 fine
• 30-365 days in jail
• 1-2 year revocation of driving privileges

For causing great bodily harm:

• 7 years and 6 months of prison (maximum)

Homicide by Intoxicated Use of a Motor Vehicle

This is a separate charge from OWI and is regularly charged when someone in the driver's vehicle, someone in another vehicle, or a pedestrian is killed as a result of the operating by the driver.

> Wisconsin penalties for Homicide by Intoxicated Use of a Motor Vehicle:

• 25 years in prison for a multiple offense drunk driver (maximum)
• 15 years in prison for first time drunk drivers (maximum)

Homicide by Operation of a Vehicle with a Detectable Amount of a Restricted Controlled Substance

The State must prove the following 3 elements:

1. The defendant operated a vehicle.

2. The defendant's operation of a vehicle caused the death of named victim.

3. The defendant had a detectable amount of a restricted controlled substance in his or her blood at the time the defendant operated a vehicle.

Sentencing Guidelines

All drunk driving cases are subject to the sentencing guidelines of the respective county where the prosecution is occurring. There are 10 districts in Wisconsin that all have different guidelines. It is critical to consult with Birdsall Law Offices to determine your district and the realistic penalties you are facing.

Hinz Chart

The Hinz chart is an estimate of your BAC depending on the number of drinks you have consumed and your weight. http://www.dot.wisconsin.gov/safety/docs/08law.pdf

Field Sobriety Tests

Field Sobriety Tests are notoriously bad indicators of intoxication. Three tests are recognized by the National Highway Traffic Safety Administration as accurate indicators of intoxication (a BAC above .08). These tests, such as Horizontal Gaze Nystagmus (HGN), Walk and Turn, and One Leg Stand, were found to be only 65-77% effective. Most are "divided attention" tests, meaning the police will ask you to concentrate on multiple physical movements that do not come naturally. Field sobriety tests include:

• Horizontal Gaze Nystagmus (HGN): In this test, the officer passes a pen in front of your face and you are asked to follow it with your eyes. If your eyes exhibit a jerkiness (nystagmus) during the passes, it indicates intoxication. However, the officer will have to admit that nystagmus can, and does, occur naturally in many people, and that stress and bright lights (which are present at most traffic stops) can bring on nystagmus.

• Walk and Turn. The police officer will ask you to keep your hands at your side, walk heel-to-toe 9 steps (counting each aloud), turn and walk back. They will be looking to see if you're off balance, if you stop, if your heel and toe didn't touch, if you used your arms for balance, and more. There are many challenges to this test: the slope of the road, presence of gravel, heavy clothing in the winter, high heels, passing traffic dangers, distracting squad lights or spotlights.

• One leg stand. Only pelicans are physically qualified to do this test – the rest of us bipedal creatures have a tough time! They will ask you to put your feet together and then raise one foot and count to 30 using "one thousand one," etc. The same test conditions that are troubling for the Walk and Turn apply here.

• Alphabet. This is not a recognized test. Many officers will ask you to do this test but they have scarce scientific proof that it is effective in diagnosing impairment.

Preliminary Breath Test

The results of this test are inadmissible at a trial. The jury will never hear about it, but the officer and the court may use it as a factor when determining probable cause to arrest you. The machines used for this test are often inexpensive, unreliable, and infrequently maintained.

Administrative Suspension Review Hearing

After you have been given results that you failed a chemical test you will be given a form that will allow you 10 days from the date of notice to request an "Administrative Suspension Review Hearing." This is an often overlooked hearing that will allow you to subpoena the arresting officer and get him locked into a version of events. Many attorneys don't know how to request and conduct these hearings, or don't even know they exist. At this hearing you may challenge whether proper notice about alternate test options was given, whether the "Informing the Accused" was read and, most importantly, if there was probable cause to make the arrest. This hearing takes place at the DMV with a DMV employee presiding and making the decision. You should independently have a court reporter present to record the entire proceeding or, at the very least, record it on an audio file. Otherwise, there will be no record of officer's statements. If the officer does not show up to this hearing after being subpoenaed, the Administrative Suspension is vacated, and you may continue to drive with your regular license while your case is pending.

Challenging Illegal Stops and Arrests

In order to pull you over, or approach you on the road, the police must have a reasonable suspicion that you are about to or have committed a crime. A reasonable suspicion can be any traffic violation on the books. Officers regularly rely on speeding, weaving, and erratic driving to pull you over. Many times the cited behavior is not apparent on the video of the incident which allows us to challenge your stop.

In order to arrest you for OWI, the officers must have probable cause to believe that you are or are going to commit a crime. In order to have probable cause, there must be sufficient clues of intoxication such that under the totality of the circumstances, a reasonable police officer would believe you to be impaired. Officers use their own observations of your physical state, their observations regarding your performance on the field sobriety tests, and the results of the preliminary breath test when coming to their conclusions as to your level of impairment.

Challenging Blood or Breath Tests

In Wisconsin, most OWI chemical tests are either breath or blood tests. For breath tests, the state uses the EC-IR II machine. Challenges to this machine include whether the machine was maintained properly and was calibrated correctly, whether the operator did the 20 minute observation period, or whether the officer got a reliable sample of air from your lungs. Also, the depth of your breaths and excess dissipation from your saliva can greatly affect the test results. RFI (Radio Frequency Interference) also interferes with the machine obtaining a reliable reading.

For blood tests, the state uses a gas chromatography machine to test your blood. Though this is one of the toughest tests to challenge, you should strongly question the procedures used for the blood draw (often the person drawing the blood is an unqualified person), as this is where mistakes in collection and transfer of the sample can have significant affects on the reliability of the sample as evidence.

Collateral Attacks on Prior Convictions

Anytime you are facing a second or subsequent OWI case, you must closely examine all prior convictions the state is using to justify their charges. If your prior conviction is invalid or was illegally obtained, you may be able to knock that conviction out for counting purposes and reduce your exposure on your current case.

Implied Consent Law

When you're arrested, you will be asked to give a blood or breath sample. The law states that having a driver's license in Wisconsin is a "privilege," not a "right." In consideration for granting you this privilege, you "consent" to give a blood/breath sample if there is probable cause to believe that you were operating a motor vehicle while under the influence of an intoxicant. Any refusal to voluntarily give a sample is a separate violation that could result in a one year suspension of your license without the right to apply for an occupational license. Also, if you are arrested for an OWI again, that refusal will count as a previous OWI.

Refusals

You may refuse the blood or breath test. If you do, your license will be suspended for 12 months. Unfortunately, the courts have approved forced blood draws even if you refuse the tests offered by the police. A blood sample may be drawn regardless of how many police officers it takes to hold a person down while it is done.

Occupational/SR-22 Insurance

An occupational license is essentially a driver's license that allows you limited driving hours to conduct daily business. You will choose the hours you want to have available. Driving outside these hours will expose you to being charged with Operating After Revocation.

In order to obtain an occupational license, you must have valid SR-22 insurance. SR-22 insurance is high risk auto insurance that is provided by most major insurance carriers.