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THE 32 QUESTIONS YOU NEVER
THOUGHT YOU WOULD HAVE TO ASK

What is drunk driving?

Drunk driving is also known as operating a motor vehicle while under the influence of an intoxicant, OMVWI, OWI, DWI, DUI. We will uniformly refer to it as OWI because that is how Wisconsin courts, prosecutors and the Motor Vehicle Department refer to it. The offense of OWI is defined by law as operating/driving a motor vehicle on a highway or other areas held open to the public while your ability to operate/drive is impaired because of the consumption of alcohol, other drugs, prescription medications or a combination thereof. Your ability to operate/drive has to be impaired to the extent that you cannot safely operate a motor vehicle.

You should also know what drunk driving is not. It is not simply drinking and driving. That is not necessarily illegal. What is illegal is drinking to an extent that it impairs your ability to safely operate a motor vehicle.

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What is the PAC ticket?

If you provided a breath, blood or urine test for chemical analysis for alcohol and the result is over the legal limit, you received or will receive a second ticket. This charge is technically described as operating/driving a motor vehicle with a prohibited alcohol concentration. It is also known as PAC, PAC + .08, BAC. We will uniformly refer to it as PAC. PAC is defined as operating/driving a motor vehicle on a highway or other area held open to the public with a prohibited alcohol concentration at the time of the driving. See What is the legal limit?.

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Why did I get two tickets?

If you provided a sample of your breath, blood or urine and the test result is over the legal limit, you got or will get two tickets. One of these is the OWI ticket for operating a motor vehicle while under the influence of an intoxicant. The second is the PAC ticket for operating a motor vehicle with a prohibited alcohol concentration. The penalties are identical. There is only one set of penalties. Therefore, if you are convicted of OWI or if you are convicted of PAC or if you are convicted of both, it is the same penalty. If you are convicted of both, one is automatically dismissed by operation of law. Whether you are convicted of one, the other or both, it will go down on your driving record as “OWI.” This is essentially the state’s opportunity to get you both coming and going. In other words, even if your ability to operate a motor vehicle is not impaired, you could be convicted because you allegedly had a prohibited alcohol concentration which was above the legal limit. Or, even if you are not guilty of having a prohibited alcohol concentration, you could still be convicted because your ability to operate a motor vehicle was impaired. Therefore, to be successful, your attorney must find ways to defend against both charges. The jury must find you not guilty of both charges.

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What is the legal limit?

What you call the “legal limit” is called “prohibited alcohol concentration” by the law. The prohibited breath/blood alcohol concentration for a first or second offense committed on or after Septermber 30, 2003, is .08. See What About This New Drunk Driving Law? For first or second offenses committed prior to September 30, 2003, the prohibited alcohol concentration is .10 For a third offense it is .08. For a fourth and subsequent offenses it is .02. The breath or blood number generated is called BAC for breath or blood alcohol concentration. (Tests of urine are rare. But the result is extrapolated into a blood alcohol reading.) This number generally forms the sole basis for a PAC charge. However, the BAC result will also be used against you in the prosecution for OWI. The BAC for both the OWI and PAC charges is what the law in Wisconsin calls a “rebuttable presumption.” By providing a test sample of your breath, blood or urine within three hours, it is presumed that test shows your BAC at the time of driving. This is a legal presumption and is obviously not accurate. Therefore, the defense in a case may “rebut” that presumption. That is, the defense can set forth evidence or facts indicating that the test result obtained from the blood, breath or urine sample either was not accurate or was different at the time of the driving or operating. This can be done in a number of ways. It is the job of a good defense attorney to determine if there are sufficient facts to adequately rebut or contradict the presumption.

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What were those roadside field sobriety tests?

A field sobriety test is a test or activity that a law enforcement officer asks a motorist whom he/she suspects of being under the influence of an intoxicant to perform. Usually they are performed at the roadside (hence the name) but in some instances a motorist is actually conveyed to a police department or other area, frequently sheltered, to perform those tests. They are tests ostensibly used to determine the suspect's intoxication and ability to drive. Formerly, field sobriety tests could include any number of activities. Each individual police department had their own favorites. Individual officers sometimes became creative. Our favorite was standing on one leg and bending to pick a coin up off of the ground. However, more recently there have been efforts to standardize the field sobriety tests. There are three basic standardized tests.

1. Horizontal Gaze Nystagmus Test. The officer holds what he/she calls a stimulus in front of the suspect's eyes. This can be a pen, pen light or finger. The officer moves it back and forth at certain speeds to different points looking for smooth pursuit, nystagmus at maximum deviation and nystagmus at forty-five degrees. Nystagmus is an involuntary jerking of an individual's eyes. However, everybody has nystagmus. Normally, it is invisible to the naked eye. Consumption of alcohol makes it visible to the officer. The officer looks for six clues. One for each eye for each of the three portions of the test. Four clues is failing.
   
   
   
2. Walk and Turn Test. The officer asks the suspect to assume an instructional stance with his/her right foot in front of the left while the officer proceeds to instruct on the rest of the test. The officer first watches to see if the suspect will maintain that stance or if he/she reassumes a normal shoulder width standing position. The officer further watches to see if the suspect starts the test too soon. The officer otherwise instructs the suspect to take nine steps placing heel to toe while walking (usually an imaginary) straight line, keeping hands to his/her side, counting each step out loud. At the end of the nine steps the officer instructs the suspect to pivot on the last step (which should always be the left foot if the test is being instructed and performed properly) by taking several short, choppy steps with the right foot around that pivot foot and then walk nine heel to toe steps back. There are eight clues on this test. These include: Loses balance during the instructions (that is breaking away from the heel-toe stance), starts walking too soon, stops walking during the test, misses heel to toe (by at least one-half inch), raises arms from side while walking (by six inches or more), steps off the line, turns improperly, takes the wrong number of steps. Two clues is failing.
   
   
   
3. One Leg Stand Test. The officer instructs the suspect to stand on one leg (sometimes he/she allows you to choose the leg) hold the other foot six to eight inches off of the ground and count by one thousand's. The suspect is told that if he/she touches the foot down to immediately raise it and continue counting. This is a 30 second test. While officers were originally trained to have the suspect count to one thousand thirty or, sometimes, thirty one thousand, now most will time it and stop the test after thirty seconds regardless of how far the suspect has counted. It is not part of their criteria that the suspect actually reach the count of thirty in thirty seconds. There are four clues. The officer watches whether the suspect puts the foot down, raises his/her arms, hops or sways. Two clues is considered failing.

Officers use the field sobriety tests initially to provide probable cause to arrest.

However, the performance on the field sobriety tests are used by the prosecutor as evidence against the accused at trial. A good trial defense has to make sure that the tests are carefully explained and not allow the officer to simply rely on conclusions. When sufficient facts are developed and put into proper perspective usually the performance on the test is not as bad as when the officer is simply allowed to present his/her conclusion or opinions in a summary fashion.

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What was this roadside breath test?

That is known as a PBT. That stands for preliminary breath test but also can mean portable breath test. Not all departments or officers use a PBT. If used, it can only be used for the tests at the roadside or to determine probable cause. (However, jails use it a lot to determine if someone still has alcohol in their system so they can determine when to release them.)

The purpose of the PBT is to determine if you have a prohibited alcohol concentration. The PBT result can be used as probable cause to arrest you. While complicated, there is also a separate, lesser level of probable cause that the officer must have before he/she can even ask you to perform the PBT. You do not have to blow into the device if you choose not to.

If the PBT is over the prohibited alcohol concentration level, that alone gives the officer probable cause to arrest you. However, just because the PBT is under the prohibited alcohol concentration level does not mean that the officer cannot arrest you. A result under the legal limit and the officer’s other observations can still amount to probable cause to arrest.

The PBT can only be used at a hearing on a motion challenging whether or not the officer had probable cause to arrest you. However, the PBT result can never be used against you at trial. You do not have to provide a PBT test. You are often better off not to have provided a PBT. However, if you refuse, make sure it is a PBT being offered and not the required breath test. A PBT is a portable, handheld device and usually given at the scene. The Intoximeter is a larger unit usually on a table at the police department. There are separate penalties for refusing the Intoximeter breath test. See "Refusal Penalties." There are no penalties for refusing the PBT.

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Why must I give a breath or a blood test?

Basically because the law says so. Wisconsin has what the courts describe as an Implied Consent Law. That is, when you apply for a driver's license you implicitly give your consent to provide a breath, blood or urine test for analysis of alcohol. However, most people don't know that. Few driver education programs deal with that. The "Implied Consent" Law could be described as a legal fiction. Unfortunately, it becomes fact when you are arrested. You may think that you have a right to decline or refuse to provide a sample of your breath or blood for alcohol testing. Sometimes you're right; often you're wrong. If you do refuse, there are two possible major consequences. First, you will definitely be given a Notice of Intent to Revoke which itself has separate consequences. See "Refusal Penalties" Second, and just as important, the officers are legally authorized to threaten to hold you down or actually hold you down to obtain a blood sample. Therefore, they can get you both ways. They can get a refusal and a blood test because they are not obligated to tell you that if you refuse they will hold you down.

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Why did they threaten to hold me down?

Because the law says that they can. Unfortunately, the law also says that they can actually hold you down. Wisconsin courts have ruled that if you refuse to provide the breath, blood or urine sample requested, the officer may threaten to hold you down and/or actually hold you down to compel the taking of a blood sample. The legal reasoning behind this is that the alcohol concentration is being eliminated relatively rapidly from your system and it would take too long to obtain a search warrant. Therefore, the legal theory of exigent circumstances applies which allows the officer to threaten to hold you down or actually hold you down.

The unfortunate consequence is that the law enforcement officer would then have a refusal allegation against you plus the officer will have a blood alcohol sample by which, if in excess of the prohibited alcohol concentration, you can also be charged with PAC.

This is compounded by the fact that the officer is under no legal obligation to tell you that you will be held down. That is, the officer is legally obligated to advise you only that if you refuse that you will be subject to a revocation of your driving privileges and other penalties. You may be led to believe that you have a right to refuse. But the officer is not legally obligated to tell you that if you refuse, he/she and as many other people as are necessary, will hold you down in order to obtain a blood sample anyway.

To make matters even worse, if after being threatened with being held down you then decide that you will voluntarily provide the blood sample, it is still a refusal and the police still obtain the blood sample to use as evidence against you.

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What is this Notice of Intent to Suspend?

If your breath/blood alcohol concentration (BAC) test result was over the legal limit, (See "What is the legal limit?")you received a pink form, “Notice of Intent to Suspend Operating Privilege,” and a yellow form, "Administrative Review Request." Basically what this means is that your driving privileges will be suspended for six months. This is literally punishment without conviction. That suspension commences on the 30th day after the date in the upper right corner of the Notice of Intent to Suspend form. This is not just a “temporary driving permit” as you may be led to believe as you put it into your wallet. That document and the Administrative Review Request form basically are meant to let you know the above information and to let you know that you have certain time limits within which to request an administrative suspension hearing. If you are personally given the Notice of Intent to Suspend Operating Privilege, as most frequently happens in a breath test case, you will have 10 days within which to request a review hearing. If you are mailed the Notice of Intent to Suspend form, you have 13 days within which to request the review hearing from the date it is mailed to you. Again, this is the date in the upper right hand corner of the form. However, what the form does not tell you is that it is 10 or 13 working days and not 10 or 13 calendar days. Saturdays, Sundays and holidays are excluded. Because of certain idiosyncrasies in counting, you should have an attorney knowledgeable in this area calculate it for you. If you are going to hire an attorney, the attorney should request the hearing. This law office will always request the hearing for the client.

The hearing must be held within 30 days of the date on the Notice of Intent to Suspend form. The officer is required to forward certain appropriate and designated paperwork to the Department of Transportation within five working days of the date on the Notice of Intent to Suspend form.

The right to a review hearing also includes the right to present evidence. The right to present evidence also includes the right to produce witnesses. The right to produce witnesses also means the right to subpoena in one or more police officers. This law office always subpoenas one or more officers to the review hearing. While we wish to present evidence as to why the suspension should be vacated, this is also an effective manner of compelling an interview with the officer(s). We tape record the questions and responses so we have them for purposes of review and future preparation.

A hearing examiner, who is also an employee of the Department of Transportation, determines if there are reasons to vacate the administrative suspension. If not, the suspension will take effect on the 30th day following the date on the Notice of Intent to Suspend form. However, the law provides that a judge may release the administrative suspension. Not all judges will release the administrative suspension. If the judge releases the administrative suspension, it does not take effect. However, if the administrative suspension does take effect, you are eligible immediately to apply for an occupational operator’s license. Additionally, any portion of the administrative suspension served will count against any potential future judicial revocation of driving privileges. If the defense of your case in court is successful, the administrative suspension will be terminated and the fact of the administrative suspension will be erased from your driving record.

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What penalties do I face?

Penalties for OWI/PAC/Refusal are determined by whether you have any prior convictions of any of those designated offenses and how many. See “How are Prior OWI’s/PAC’s/Refusal’s Counted?”. This heading lists the range of statutory penalties for each OWI/PAC/Refusal offense (ie. first, second, third etc.). To determine the range of penalties for a particular offense, please click on the corresponding offense (first, second, third, fourth, fifth or subsequent, or refusal). However, each county is in a judicial district. Each judicial district develops specific sentencing guidelines based on a number of factors. If you want to determine the specific sentencing guidelines for a particular county click here. While the penalty schemes are complicated, a brief summary is as follows:

 

OWI/PAC FIRST OFFENSE PENALTIES

An OWI/PAC-1 is considered an ordinance violation. That is, it is not criminal and jail is not a penalty.

Click here to find our what the sentencing guidelines are for a specific county for OWI/PAC first offense.

OWI/PAC SECOND OFFENSE PENALTIES
(one prior conviction within the last 10 years):

Click here to find out what the sentencing guidelines are for a specific county for OWI/PAC second offense.

OWI/PAC THIRD OFFENSE PENALTIES
(two prior convictions since 01-01-89)

For an OWI/PAC-3 and subsequent, there is a graduated, progressively punitive system of fines:

Click here to find our what the sentencing guidelines are for a specific county for OWI/PAC third offense.

OWI/PAC FOURTH OFFENSE PENALTIES
(three priors since 01-01-89):

Click here to find our what the sentencing guidelines are for a specific county for OWI/PAC fourth offense.

OWI/PAC FIFTH AND SUBSEQUENT OFFENSE PENALTIES
(four priors since 01-01-89) This is a class H felony

Click here to find our what the sentencing guidelines are for a specific county for OWI/PAC fifth offense.

REFUSAL PENALTIES

Refusals never have a jail sentence or a fine. However, prior convictions for drunk drivings count against a refusal. For instance, if an individual has two prior convictions for drunk driving since 01-01-89, a refusal now would be a third offense with the associated penalties. Those penalties are:

* However, the wait for occupational license eligiblity is one year if any two offense dates are within 5 years of each other. Also, see "Can I get an occupational operator's license?" for other restrictions.

** If person has one prior conviction/revocation with in their lifetime, the court has the discretion to order either the installation of an ignition interlock device or immobilization of the motor vehicle. If the person has two prior conviction/revocation within 5 years, the court must order installation of an ignition interlock device or immobilization of the vehicle.

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How are prior OWI’s/PAC’s/Refusal’s Counted?

Obviously if you have never been arrested for an OWI/PAC or Refusal before, your current offense is a first.

You can be charged with OWI/PAC/Refusal-2 if you have an OWI/PAC or a Refusal within the preceding ten years. If your only prior OWI/PAC/Refusal is outside of ten years, your new offense is considered a first offense.

However, if you have more than one prior OWI/PAC/Refusal since 01-01-89, then all are considered priors and are counted. This is true even if all the priors are older than 10 years but more recent than 01-01-89.

Effectively, for counting purposes, OWI’s count as refusals and vice versa. For example, this means that if you have two OWI convictions and one non-related refusal adjudication since 01-01-89, your new offense would be an OWI/PAC or refusal-4.

Or, if you have two prior OWI convictions since 01-01-89 and are arrested for an OWI and alleged to have refused to provide a breath/blood sample, they are both charged as an OWI-3 and a refusal-3.

Or, if you have been adjudicated for a refusal but were acquitted of the underlying OWI, a new OWI/PAC or refusal would still be considered a second offense.

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What if I had a child in the car?

If there is a minor in the vehicle under 16 years of age at the time of the offense, the forfeiture/fines and incarceration in jail/prison are doubled. If the offense would be an OWI/PAC-3 or OWI/PAC-4 and there is a minor in the vehicle, the offense becomes a felony.

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If I am convicted, what happens?

Refusals

Technically, you are not convicted. You are adjudicated to have refused. But the result is the same.

The penalties for refusal violations are absolute. The court has no discretion. Your driving privileges will be revoked for a predetermined length of time and you will be ordered to alcohol assessment and counseling. Even if the court revokes you for the wrong length of time, the Motor Vehicle Department will automatically correct that. See "Refusal Penalties?”

OWI/PAC

As noted under “What penalties do I face?”, there are a range of penalties for OWI/PAC convictions. That means that the court must impose at least the minimum penalty but no more than the maximum penalty for jail sentences (OWI/PAC-2 and subsequent), forfeitures/fines and revocations of driving privileges. You can find your range of penalties appropriate for your charges by going to your proper offense“What penalties do I face?"

What sentence a specific judge imposes will be determined by a number of factors. The primary factors will be the level of the BAC or whether there was a refusal and whether it was considered an aggravated or non-aggravated incident of driving. Additional factors include your driving record, cooperation with authorities, prior uncounted offenses, problem recognition and any pre-conviction assessment/counseling.

Each of Wisconsin’s counties is divided into one of ten judicial districts. Each judicial district has sentencing guidelines.

While the court does not have to impose the sentencing guidelines, most do and the rest are going to use the guidelines as a starting point from which to determine the sentence.

To find out the sentencing guidelines** for the county in which you were arrested, click ONCE on the proper county. The 72 Wisconsin counties (followed in parenthesisis by their judicial districts) are:

**Sentencing guidelines may be changed without prior notice of publication by each judicial district.

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What if somebody was injured?

There are separate charges for causing injury by operating a motor vehicle while intoxicated. The legislature defines the charge as injury by the intoxicated use of a motor vehicle. The injured party can be the driver or occupant of another motor vehicle or the occupant of the offending motor vehicle. If a motorist is believed or alleged to be under the influence of an intoxicant or possessing a prohibited alcohol concentration (OWI/PAC), the offense charged is automatically criminal. This is true even if the accused has never been charged or convicted of an OWI/PAC previously.

It is a misdemeanor traffic crime if the injury is bodily harm. Bodily harm is defined as any physical pain, injury, illness or impairment of physical condition. The criminal penalty for causing injury by OWI/PAC is a minimum jail sentence of 30 days and a maximum of one year, a minimum fine of not less than $300.00 plus costs and not more than $2000.00 plus costs, and a minimum revocation of driving privileges of not less than one year and not more than two years. If there was a minor passenger under the age of 16 years in the offender's motor vehicle at the time of the violation, the offense is a felony and the period of incarceration, fine and revocation are doubled. The place of incarceration can either be the prison or the jail. It will be the prison if the incarceration is a sentence of more than one year. Further, the court can order restitution.

If the injury caused is great bodily harm, the offense becomes a Class F felony. Great bodily harm includes bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or which causes a permanent or serious bodily injury. A Class F felony has penalties which include imprisonmnet and extended supervision not to exceed 12 years, a fine not to exceed $25,000.00, or both. There is also a two year revocation of driving privileges. The court can also order restitution. If there was a minor passenger under the age of 16 years or an unborn child in the vehicle at the time of the violation, the penalties are doubled. Incarceration for more than a year must be at a state prison, incarceration for less than a year must be at the county jail, incarceration for a year may be at either.

Because of the severity of the offense where an injury has been charged and because the challenges and defenses become more complicated, a knowledgeable, skilled attorney should be hired immediately.

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What if somebody was killed?

There are separate charges for causing death by operating a motor vehicle while under the influence of an intoxicant or operating with a prohibited alcohol concentration. The legislature defines the crime as homicide by the intoxicated use of a motor vehicle. The injured party can be the drivier or occupant of another motor vehicle or the occupant of the offending motor vehicle. This can include causing the death of an unborn child. If a motorist is believed or alleged to be under the influence of an intoxicant or possesing a prohibited alcohol concentration, the offense charged is automatically criminal. This is true even if the accused has never been charged or convicted of an OWI/PAC previously.

An offense as described above is a Class D (or Class C if person has prior conviction, revocation or suspension) felony. Penalties include imprisonment and extended supervision not to exceed 25 years (or 40 years if person has prior conviction, revocation, or suspension). The revocation of driving privileges is five years and if there was a minor passenger under the age of 16 years or unborn child in the vehicle, the revocation becomes 10 years. Additionally, the court could impose a fine of up to $100,000 for either a Class D or C felony.

Because of the severity of the offense where death has been charged and because the challenges and defenses become more complicated, an attorney who is skilled and knowledgeable in the defense of drunk driving cases and criminal charges should be hired immediately.

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What if I have a CDL?

If you were the operator of a commercial motor vehicle at the time of the arrest a different set of laws apply. No person may drive or operate a commercial motor vehicle with an alcohol concentration of greater than .04. However, it is still unlawful for you as the owner of a commercial motor vehicle license to drive, operate or be on duty time with an alcohol concentration above 0.0 or within four hours after having consumed an alcoholic beverage, regardless of the alcohol concentration, or while possessing an alcoholic beverage (other than alcoholic beverages being transported). The difference between these standards is the penalty imposed. The penalties for operating or driving a commercial motor vehicle while OWI -1 to -3 are identical to those for a motorist without a CDL. The penalties for any of the other on duty violations is a forfeiture of ten dollars ($10.00) and issuance of a 24 hour out-of-service order for the truck. However, if you are not operating a commercial motor vehicle, the fact that you have a CDL makes no difference. You cannot be charged with OWI/CDL if you are operating a non-commercial motor vehicle. However, if you operate a CMV, any OWI or PAC conviction may dramatically impact on your insurance and ability to work. You may wish to seek legal counsel.

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Do I have any rights?

Actually you do. While you may be obligated to give the arresting officer a breath, blood or urine sample for alcohol testing, you at least have the right to have it double checked by a separate test. There are essentially three ways to go about doing this.

First, you can ask the officer for his/her alternative test. The officer has a choice of breath, blood or urine. Urine tests are almost never used for a variety of reasons. The officer picks one of those tests as his/her primary test; the one they are asking the motorist to provide. Then the officer has to pick an alternate test. If you, as the arrested motorist take any and all breath, blood or urine tests which the officer asks you to perform, then you are entitled to the alternate test. This is a second test that is free of charge to you. It can either verify or discredit the first test result. You must ask for the alternate test.

Second, you are entitled to a test of your own choosing. So long as you provide the arresting officer with any breath, blood or urine test that the officer requests, you can have your own test. It has to be a reasonable request. For instance, you can't ask to have a blood test done at a facility fifty miles away. Also, you have to be paying for it. The benefit to this procedure is that only you as the arrested motorist should get a copy of the test result. (This is as opposed to the alternate test procedure described above where both you and the officer will get test result reports.) However, there are a lot of complicating factors. There are all sorts of ways in which you may be frustrated in obtaining the second test of your choice. If you do not obtain a second test, it is not the fault of the officer. Additionally, if you request this second test at your own expense and the officer simply releases you from custody, he/she has no obligation to provide that second test. You are then free on your own, providing that you have been picked up by a willing driver, to seek out your second test. Unfortunately, this will usually be limited to blood or urine because most police departments will not provide an Intoximeter test to somebody who just walks in off the street.

Third, you can wait until you are released and, without either asking or telling the arresting officer, go to a hospital and get a blood test. The benefit to this is that you know the ultimate results and the officer doesn't. The disadvantage is that there are still many things that may happen that can frustrate your attempts to get a blood test.

While the third method described above is probably the best for the accused motorist, this is only if you get the actual test done. The first method described above is the most effective at getting another test result. However, if you choose the first method, you must make very sure that you tell the officer that you want an alternate test. You may have to state it several times. Remember, always be polite, considerate and respectful. Asking for the alternate test only once early in the procedure frequently will not do the trick. When the arresting officer asks you if you are going to provide a breath, blood or urine sample, he/she will designate which one. You could ask the officer if that is their primary test. You can then ask the officer what their alternate test is. You can inform the officer that you want the alternate test. Then make sure that you repeat the request for the alternate test to the officer at least once during the testing procedure and possibly again if there seems to be any confusion. If you have properly asked for an alternate test and it is not provided, the first test result should be suppressed so that it could not be used against you as evidence.

Remember you must take any and all law enforcement tests in order to have either the right to an alternate test or a second test of your choice. If you refuse, you do not have those rights. If you refuse and then provide a blood sample when they threaten to hold you down, you still do not have those rights. If you refuse and are going to be held in custody and want a second test at your expense, ask the officer anyway. While not being at all rowdy or loud, you may have to ask this several times. Although there is no statutory authorization for this procedure, the officer's refusal could lead to issues brought about by his/her denial of your right to collect exculpatory evidence. If you have refused and are being released and want a second test, go to the hospital and try to get one.

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What’s a Refusal?

Under Wisconsin law a law enforcement officer has to be prepared to test two of either your breath, blood or urine. The officer designates which is his/her primary test, that is, the test that they are going to first request. However, the officer also has to be prepared to perform the other (alternate) test if requested. If you don’t provide the officer with each and every test he/she requests, it is a refusal. (This does not include the preliminary breath test usually performed on the roadside with a hand held device.)

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Did I refuse?

Did you receive a "Notice of Intent to Revoke Operating Privileges?" Then that means the officer says you refused to provide him/her with one or more samples of your breath, blood or urine.

It is a refusal if you say no. It is a refusal if you do not answer the officer when he/she asks if you will provide the sample of the primary test (breath, blood or urine). It is a refusal if you take too long to decide before answering yes.

You are not even entitled to speak to an attorney in order to help you make this important decision. Wisconsin law holds that if you ask to speak to an attorney, the officer does not have to comply and can compel you to make your decision right then and there.( Some officers may let you try to contact an attorney.) If you do not make a decision, it will be treated as a refusal..

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Should I have refused?

Unfortunately, probably not. On an OWI-1, the penalties for a refusal are generally considered worse than the penalties for the OWI itself. A refusal frequently means that the prosecution has less evidence against you because they do not have a BAC and therefore you have a better chance to defend against the OWI. However, it is the ultimate penalty which is more important. The 12 month revocation and 30 day wait for an occupational operator’s license due to a refusal adjudication are worse than the six to nine month revocation and immediate eligibility for an occupational operator’s license for an OWI-1. Plus assessment/counseling is required for both the OWI-1 and refusal. The only thing that the refusal does not have is the forfeiture(fine). However, most people would still consider the refusal penalties worse.

Because a refusal has no jail sentence when charged with an OWI-2 and subsequent the refusal penalties are then generally considered less. Unfortunately, on an OWI-2 and subsequent, most officers will compel a blood sample. Therefore, you have a refusal and they still have their blood test.

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What should I do if they say I refused?

If you fail to provide the arresting officer with any sample of breath, blood or urine for testing, you will be given a "Notice of Intent to Revoke Operating Privilege" for the alleged refusal. It could be a refusal even if you gave a sample. See "Why did they threaten to hold me down?"You are entitled to a hearing if you request it within 10 days. Because case law provides that a refusal proceeding is a civil case, you actually have 10 working days. A request for a refusal hearing is made to the Circuit Court in the county of jurisdiction. The officer puts this information on the Notice of Intent to Revoke form. The request for a refusal hearing must be received by the Circuit Court within the 10 day time limit. If you hire an attorney, let him/her make the appropriate request. In order to prove that there was a refusal, the state must establish at that hearing that the officer had probable cause to arrest you, read you the Informing the Accused form and that you refused to provide the requested sample(s). It is not a refusal if you had a medical reason unassociated with the consumption of alcohol for having refused. You have an opportunity to testify and/or provide evidence.

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What could I have done?

One thing that you can do if you refused or can also do if you provided a sample of your breath, blood or urine is, if you are released, return to a hospital for a blood sample to be drawn so that you can have it tested independently. This will probably have to be tested by the hospital. In the past the hospital would be able to send the blood sample to the State Hygiene Lab. This is the same laboratory where the police will usually have it sent. However, now only the police officers have the state kits and most hospitals do not. So the hospitals usually do not send those samples to the State Hygiene Lab. The hospital will have to test it. You will have to pay the hospital.

If you refused and if you are kept in custody, you should then ask the police officer to have a blood test for your own evidentiary purposes. While the law does not provide that the police officer has to comply with your request, some might. Further, if a police officer did not comply with your request, there would at least be an evidentiary challenge to their testing process or to the refusal because you were not allowed the opportunity to collect your own exculpatory evidence.

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Why wasn’t I given my Miranda rights?

This is probably the most frequently asked question. On T.V. or movies, we always see the officer arrest the suspects and immediately read them their Miranda rights as they are either throwing them against a car or the wall. It doesn’t happen like that in real life.

Your Miranda rights deal with your right to remain silent during questioning and your right to have an attorney present during questioning. If you start answering questions, you can stop at any time. If you want to have an attorney present, you will always be advised that one will be appointed for you. (As a practical matter, the police do not get an attorney appointed for you in the middle of the night when you have been arrested for drunk driving.)

However, two important things have to happen before your Miranda rights kick in. First, you have to be under arrest for a criminal offense or it has to be under circumstances where a reasonable person would assume that they are not free to leave. Second, the officer has to actually be asking you questions. Therefore, if you are not under arrest, the officer does not have to advise you of your Miranda rights. Additionally, if you are not under arrest for a criminal offense, the officer does not have to advise you of your Miranda rights. Even if you are under arrest, if you are not being questioned, the officer does not have to advise you of your Miranda rights.

The procedures by which all police officers are trained to deal with OWI situations require them to provide an arrested motorist with a “pre-interrogation warning.” These are the Miranda rights. However, this is usually the last thing that the officer does before releasing you or putting you in jail for the night. It is after you have been taken to the station or the hospital and usually after any breath or blood test.

Unfortunately, the officers always do some questioning immediately upon stopping you. In most instances, you are not yet under arrest. In most but not all instances that is considered investigatory questioning and is allowable.

The officer will inform you of the “pre-interrogation warning” even for non-criminal OWI arrests because that is what they are trained to do. By advising all motorists of their Miranda rights, they never err in failing to do it. Then they have a series of questions with fill-in the blanks for answers that they will proceed to ask you if you waive your Miranda rights. That is the point in time that you must decide to answer the questions or assert your right to remain silent.

As an instructional note, between the investigatory questions that are asked shortly after the stop and the “pre-interrogation warning”/Miranda rights at the end of the custodial period, there is a vast period of time which consists of, generally, field sobriety tests, formal arrest, transportation to the police department and/or hospital, issuing one or more citations, testing procedure. Some number of motorists arrested get what we call “diarrhea of the mouth.” Some officers note these ramblings or babblings and some don’t. Unsolicited statements or conversations by the arrested motorist to the officer are almost are never helpful to the motorist. The motorist does things like ask for leniency, say they shouldn’t have been driving, promise they will never do it again, advise they had too much to drink, say their spouse will divorce them, lie, cry, cajole, threaten and all other sorts of things that just make them look guilty. Don’t do that. Be polite, respectful and considerate. Don't babble.

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How do I exercise my Miranda rights?

Your Miranda rights deal with your right to remain silent during questioning, your right to speak to an attorney before or during questioning, your right to discontinue questioning at any time after you have started and your right to have an attorney appointed for you if you cannot afford an attorney.

Taking these in inverse order, if you can’t afford an attorney, you are not going to be appointed one during questioning for drunk driving in the middle of the night. Procedures for appointing an attorney are complicated, cumbersome, time consuming and do not involve the police officer. There is no practical way for that to happen in an OWI case in the middle of the night. Further a police officer would not take the initiative to try to make it happen unless the case was serious enough and potentially involved something like a homicide. (And probably not even then.)

If you have started to answer questions and then have decided that you do not want to answer any further questions, you exercise that right by simply saying “I don’t want to answer any more questions.” Then shut up. Don't talk anymore. Don't babble or engage in small talk.

If you decide that you do not want to answer questions without having an attorney, you exercise that right by saying "I want an attorney." You do not exercise that right by saying “I wonder if I should have an attorney?”, “Do you think I should have an attorney?”, or “Maybe I should talk to an attorney?” If your request to speak to an attorney is not specific enough, the officer does not have to stop asking you questions because you have not made your desire to have an attorney obvious enough. Therefore, you have got to make your desire to have an attorney short, simple and direct - "I want an attorney." If you know an attorney you want, you can name the attorney. See paragraph 5 of "Can I talk to a lawyer when I'm under arrest?"

If you decide to exercise your right to remain silent (without asking for an attorney) you should say “I do not want to talk to you.” Do not exercise this right to silence by simply remaining silent. A police officer can and usually will continue questioning you even if you are not giving any responses. That questioning can go on for an extended period of time. It will only stop if the individual says what they should have said in the beginning (“I don’t want to answer any questions.” Or “I want to talk to an attorney.”) or until either you get tired of remaining silent and start talking or the officer gets tired of your silence and stops. Trust us. It’s usually not the officer who tires first. If you say "I don't want to answer any questions." or "I want to talk to an attorney." and the officer continues to question you, keep repeating your statement. At all times remain polite, considerate and respectful.

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Can I talk to a lawyer when I’m arrested?

Yes and No.

Your Miranda rights (the “pre-interrogation warning” read to you at the end of your stay with the arresting officer) provides that before the officer can ask you questions that you have to waive your right to remain silent and waive your right to an attorney. Many arrested motorists do not waive the right to remain silent or their right to speak to an attorney and they actually ask to speak to an attorney. Unfortunately, the police response is almost always to simply stop asking questions but almost never to let you speak to an attorney. If you ask for an attorney or if you do not waive your right to an attorney or if you tell the police that you are not going to talk to them, the police will conform to that generally by discontinuing any questions. They generally will not help you make arrangements to call an attorney. While you are told that if you cannot afford an attorney that one will be appointed for you, that never happens the night of your arrest.

While you were at the scene and their investigation was continuing, you do not have a legal right to an attorney.

When you were at the department or hospital and being read the “Informing the Accused” form, you do not have a legal right to consult an attorney to help you make that choice.

What no police officers seem to be trained is that if you are in custody and if you ask for a named attorney at your expense, it is a criminal misdemeanor for an officer not to let you speak with that attorney. This is a Class A misdemeanor (sec. 946.75 Wis. Stat.) punishable by a jail sentence of up to nine months or a fine of up to $10,000.00 or both. Therefore, if you have been arrested and want to speak to an attorney, it is to your advantage to tell the police officer that you want to talk to an attorney, specifically name that attorney and state that it will be at your expense. Still, the officer will probably not let you talk to an attorney. However, you should repeat this several times, at all times being polite, considerate and respectful, because that increases the chance that the police officer might actually mention it in his/her report. It also increases the chance that they will let you make that attempt.

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Why did they search my car?

Because they could. Because of the inherit mobility of an automobile, the law allows police officers to search a motor vehicle for evidence or contraband under circumstances where they have you lawfully arrested for certain offenses, including drunk driving and drugs. It seems like a personal violation of the sanctity of your privacy. However, the courts have found that there is no reasonable expectation of privacy in a motor vehicle. While many people readily carry all sorts of personal and professional items easily in their motor vehicle and expect privacy, that is not the law. The officers are entitled to look for open containers of alcohol, drugs, drug paraphernalia, weapons and, unfortunately, just about anything else that seems to suit their fancy.

Therefore, while you may not like it, don’t get upset about it. Be calm and let them do it. However, you may not want to volunteer where that pot pipe is located.

Also, and this is very important, many police departments have interdiction units where by they routinely ask motorists stopped for some violation for permission to search the vehicle. They usually say you are free to go and then ask one more thing. For instance, "You're free to go now. But you don't have any drugs or weapons in the car do you? You don't mind if we look, do you?" You do not have to give them permission. If you are free to go, you may want to confirm that and then exercise your right to leave and see what happens.

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Can I get an occupational operator’s license?

Probably. An occupational operator’s license will entitle you to drive to and from work, school, alcohol assessment/counseling or church. Depending on your circumstances, you may also be able to obtain one for things such as getting groceries (for instance, if you are single), exercising visitation rights, attending parent/teacher conferences or other items at or related to your child’s schooling, going over to your elderly parents to do maintenance, lawn care or snow shoveling, etc. However, an occupational license is limited to no more than 60 designated hours per week and no more than 12 designated hours per day. You have to apply for an occupational license at the Motor Vehicle Department. In most instances you can apply for an occupational license at the Motor Vehicle Department yourself without an attorney. The rules are somewhat different if you possess a CDL. You should talk to a knowledgeable attorney if you have any questions.

The first limitation upon obtaining an occupational operator’s license is that you have no suspensions or revocations within the 12 months immediately prior to your application. For instance, you would not be eligible for an occupational operator’s license if you have a suspension or revocation for another drunk driving, an operating after revocation, points, failure to comply with an alcohol treatment program, damage judgment or a safety responsibility suspension within the last 12 months, etc. All applications for an occupational license would be subject to this limitation.

There is a second major limitation because of a law effective September 30, 2001 that will have major impact on many motorists charged with a second or subsequent OWI/PAC/Refusal. If you have two OWI/PAC convictions for which the offense dates are within any five year period, there will be a one year wait until you are eligible for an occupational license. First, if you have a prior OWI/PAC for which you have been convicted and for which the date of offense is within five years of your current OWI/PAC/Refusal (starting 9-30-01), there will be that one year wait for eligibility. However, let’s take the hypothetical where you had two drunk drivings within five years of each other quite some time ago, for instance, January 1, 1990 and January 1, 1994. Obviously neither is within five years of your current offense. However, they are within five years of each other. If you were convicted of an OWI/PAC with a date of offense starting 9-30-01, you would still have a one year wait before you would be eligible to apply for an occupational operator’s license. This will apply to refusal situations as well.

You are eligible immediately for an occupational operator’s license following an administrative suspension. This is true regardless of whether you have prior convictions on your record. However, the application would be subject to the first limitation above.

You are also eligible immediately for an occupational operator’s license following a conviction for OWI/PAC-1, subject to the two above limitations.

Otherwise, there are certain waiting periods for occupational operator’s licenses.

If you are applying for an occupational license after a refusal-1, there is a 30 day wait. If it is a refusal-2, there is a 90 day wait. If it is a refusal-3 or subsequent, there is a 120 day wait. For a description as to what constitutes a specific refusal-1, -2, -3 or subsequent, please see “How are OWI’s/PAC’s/Refusal’s counted?” Eligibility for an occupational license for a refusal-2 or -3 and subsequent are subject to the above two limitations.

If you are convicted of an OWI/PAC-2, there is a 60 day wait to apply for an occupational license. If it is an OWI/PAC-3 or subsequent, there is a 90 day wait before you are eligible to apply for an occupational operator’s license. Eligibility for an occupational license for an OWI-2 or -3 and subsequent are subject to the above two limitations.

However, there is also a third limitation which restricts application for an occupational operator’s license. The Motor Vehicle Department has an administrative license policy that if you have two or more OWI/PAC/Refusal convictions for which the date of violation is within five years of your date of application for an occupational license, they will automatically deny the application. However, the court still has discretion to issue an occupational license. You would have to get written documentation from the Motor Vehicle Department to which you had applied and been rejected. You would then have to apply to the court. If you have to petition the court for an occupational operator’s license, you are more likely to be successful if you have hired an attorney knowledgeable in this area of law.

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What do I have to do now?

Demand an Administrative Suspension hearing. If you blew into the Intoximeter or if you provided a blood sample and the test result was over the legal limit, you received a “Notice of Intent to Suspend Operating Privilege.” This means that your driving privileges will be suspended on the 30th day following the date of Notice. You must request a hearing within 10 working days if you got the form in person or 13 working days if you received the form by mail. In our opinion, this is an extremely valuable hearing and should always be requested. However, it is a better practice to let an attorney that you hire make the appropriate decisions and also request the hearing. If you have not or cannot hire an attorney before the administrative suspension time limits run, you should fill out the yellow Administrative Review Request form that you received. It must be either received, postmarked or faxed within the time limits. Putting it through a postage meter does not suffice. Therefore, you can either take it to the address on the bottom left portion of that document or mail it to that address. If you mail it, make sure that it will be picked up before the time limits expire. An attorney can advise you as to the appropriate time limits. However, if you request the hearing yourself but are going to hire an attorney, you should still hire one very quickly. Otherwise, you may lose valuable opportunities to help yourself be successful in defense of your case.

Demand a Refusal hearing. If you refused to provide a breath, blood or urine sample, even if you ultimately provided one because they threatened to hold you down, you may have received a “Notice of Intent to Revoke Operating Privilege.” This is known as a refusal. You have 10 working days within which to request a refusal hearing. This hearing should always be requested. While it is better to let an attorney that you hire do this, the time limits expire quickly. Therefore, if you have not hired an attorney, you should request the refusal hearing yourself. You may do this most effectively and efficiently by simply writing your name, driver’s license number, address and date of birth on a piece of paper and then writing “I want a refusal hearing” on that piece of paper. We suggest that you either make a duplicate copy or photocopy of your request, and then go to the courthouse within the 10 days and give it to the clerk of courts. Have them file/date stamp your duplicate or photocopy. This will serve as proof that you timely requested a hearing on the refusal. However, before you proceed any further, you would be well advised to hire an attorney.

Demand a jury trial. In a criminal drunk driving, you demand a jury trial by simply pleading not guilty. Never waive (give up) the right to a jury trial without the advice of an attorney that you have hired. However, approximately 80% of OWI/PAC tickets are first offenses brought either in circuit court or municipal court. In either circuit or municipal court, you must demand a jury trial in writing and post the required jury fee of $36.00 for a 6 person jury within 10 days after entry of your not guilty plea. (In municipal court, you may also have to post the bond amount listed in the upper right corner of the citation.) Otherwise, you lose your right to a jury trial and have a trial before the presiding judge. If you are going to defend an OWI/PAC charge at trial, to do so without a knowledgeable, qualified attorney, is a little bit like trying to perform surgery on yourself without a physician. If you need time to hire an attorney, you should appear in court at the first appearance and ask for additional time to hire an attorney before you enter your plea. You should be aware that many courts, judges or court commissioners will enter a not guilty plea on your behalf. That may start the time limits running. If you are going to hire an attorney, you should do it quickly.

Hire an attorney. A good attorney, one who is knowledgeable, qualified and aggressive, is worth every dollar that you pay. If is difficult for even a good attorney to pick up a case at the last minute or with very little time and still prepare and achieve a desirable outcome. It is better to hire an attorney early. Bad things happen to or rights are lost by those who wait too long. Hiring an attorney is like hiring any other type of professional. You can talk to as many or as few as you like. But if you have any questions at all or have any thought of defending yourself, you should talk to an attorney.

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Jury Trial or Not?

Your right to a jury trial is possibly one of the most important rights you have in defending against any charge in the state of Wisconsin. If you are charged with a criminal OWI/PAC, you have an automatic right to a jury trial. A criminal OWI/PAC is a charge for which there is a possible jail sentence. This basically means any OWI/PAC-2 or subsequent.

You still have a right to a jury trial with an OWI/PAC-1 charge. However, in order to preserve that right it has to be demanded in writing and a required jury fee paid within 10 days of the initial appearance at which you plead not guilty. You are only entitled to a six person jury. The current jury fee for a six person jury is $36.00. (In Milwaukee county a twelve person jury may be requested upon payment of a $72.00 fee.)

All criminal OWI/PAC charges start in Circuit Court in the county in which you are arrested. OWI/PAC-1’s may start in either Circuit Court or, when appropriate, in Municipal Court. This varies from county to county and municipality to municipality. Some counties have no municipal courts. In other counties almost every separate municipality has its own municipal court. In some counties a number of municipalities combine to form one municipal court. You still have a right to a jury trial. However, a written demand plus posting of the appropriate jury fees and bond amount listed in the upper right hand corner of the citation are still required. The municipal court must then transfer the case to circuit court for that county. OWI/PAC cases are the only offenses in municipal court for which you have a right to demand a jury trial at the first appearance. If you have an attorney, you should discuss thoroughly whether a jury trial is being requested.

To see the value of a jury trial click to "What have we done for others."

However, you are also entitled to a trial before a judge. To obtain a trial before a judge in a criminal OWI/PAC, the right to a jury has to be waived.

To obtain a trial before a judge only (non-jury) in an OWI/PAC-1, you will only need to fail to properly demand or pay for a jury trial.

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They've got me, or do they?

There is no way of knowing whether or not you have a defense, a strong defense or no defense until you hire a good attorney to defend you. If a particular case looks simple and like it's a no-brainer, either way, it probably isn't. Defense of these cases only becomes more complicated. The side that thinks it's simple or open and shut is more than likely wrong. A good attorney cannot and should not try to evaluate a case in a free, initial consultation based only on one set of facts (yours).

A good attorney is going to go through and look at all of the different possibilities for success. Success can be in the form of a challenge to the evidence, jury verdicts of not guilty, the possibility of a successfully negotiated resolution or an advantageous sentence. But lightening doesn't strike if you don't stand in the rain. None of this happens unless you hire a good attorney and plead not guilty.

Because every case is individual, a creative defense may be raised which has never been raised before, could only be raised in this case and will never be raised again. Therefore neither you nor your attorney should assume anything.

However, there is at least a structure for starting to analyze successful challenges and defenses:

1. Did the officer have reasonable suspicion to stop/detain you? The officer cannot just stop or detain anyone. He/she has to have a reasonable suspicion that there was some sort of wrong doing or unlawful activity or the officer has to be fulfilling what the courts have termed the community caretaker function. If the officer did not have reasonable suspicion to stop or detain you, all evidence subsequent to that is likely to be suppressed and there is no longer a prosecutable case. A good attorney can challenge this for you.
   
   
2. Did the officer have probable cause to ask you to perform a PBT? Before the officer can ask you to blow into a portable breath testing device, he/she has to have a particular quantum of probable cause to do that. If not, all evidence subsequent to that may be suppressed. It is likely that there would no longer be a prosecutable case.
   
   
3. Did the officer have probable cause to arrest you? The arrest usually, although not always, occurs at the scene after the officer has gotten you to do everything that they want you to do and then announces you are under arrest, handcuffs you and puts you into a squad car. Still, the officer must have a certain quantum of probable cause in order to effect that arrest. Again, if not, all subsequent evidence may be suppressed and there may not be a prosecutable case left
   
   
4. Did the officer adequately advise you of Wisconsin's implied consent law? In order to request a blood, breath or urine test under Wisconsin's implied consent law, the officer must advise you of certain information. To make it easy, that information is preprinted on a form that the officer must read. While there are certain exceptions, if the officer does not properly provide the implied consent information by reading the form, the admissibility of the test result may be in question. This can cause dismissal of the PAC charge and can lead to less evidence against you on the OWI charge. A good attorney can recognize this.
   
   
5. Did the officer alter the implied consent information being provided? Sometimes officers on their own initiative or in response to questions give the motorist additional information. Frequently this information is accurate. Sometimes it is not. If the officer provides inaccurate information which misleads the motorist to his/her disadvantage, the test result may be precluded from being used. This results in dismissal of the PAC charge and less evidence against the motorist in the OWI prosecution which could cause a favorable result. An attorney knowledgeable in the nuances of the law can determine if this is an issue.
   
   
6. Was the test result inaccurate? The test, whether it is breath, blood or urine, shows the alcohol concentration in your system at a given point in time substantially after the driving. Wisconsin law allows test results taken under certain, specified conditions to be used and gives them a presumption of admissibility and a presumption of accuracy. But the motorist can challenge the accuracy of the test result. This can be done in one of two basic ways.
   
   First, the test result was wrong. A scientific reconstruction of the alcohol in your system based on your sex, weight, alcohol consumption and time may disagree with the breath, blood or urine test? If it disagrees, why? What went wrong? There are a number of ways under the proper circumstances to challenge the accuracy of the breath or blood/urine testing devices or results. A good attorney is going to attempt to determine what can be done in your particular case.
   
   Second, the test result may be right at the time it was done. But at the time of the operation/driving your BAC was really below the legal limit. Your system normally absorbs alcohol at a different rate than it eliminates alcohol. This results in a blood alcohol curve. While you are drinking alcohol, it is being absorbed in your system and the blood alcohol concentration is going up. After you have stopped drinking, alcohol continues to be absorbed in your system for some period of time. When absorption equals elimination, the blood alcohol curve peaks. At that point elimination is more than absorption and the blood alcohol curve starts down. Depending on what, how much and when you were drinking, you may have been on an upward curve at the point in time that you were driving so that your real alcohol concentration when driving was less than the test result. A good attorney determines if this is provable and how to do it.
   
   
7. Were you driving at all? Obviously most arrests occur because the officer sees the driving of the motorist. But not all the time. Sometimes they get reports that they follow-up on and find the motorist sleeping on the side of the road, otherwise parked, not even in their vehicle or already home. These circumstances can provide a number of problems for the prosecution and a number of defenses for the motorist. There may be issues as to whether you were driving or operating a motor vehicle or neither. It is necessary for a good attorney to look at the facts, compare it to the law and determine what legitimate issues or defenses may be raised.
   
   
8. Is there a question or issue as to when you were actually driving/operating? For any test result to be admissible, the prosecution has to show that it was taken within three hours of the driving. Therefore under circumstances where there may have been an accident or the motorist pulled over or was parked in the vehicle and possibly turned off the vehicle, the three hour issue can arise. Showing that the test was taken within three hours is a mandatory predicate for admissibility of the test result. Failure to meet that burden can lead to suppression of the test evidence and dismissal of the PAC and impair the prosecution of the OWI charge.
   
   
9. Did you drink anything after you were driving? While not an issue in too many cases, in certain limited circumstances, almost always when the officer does not physically stop the motorist while driving, this may become an issue. Sometimes it happens after an accident. Sometimes the motorist has already arrived home or other destination before the officer comes upon him/her. If he/she has consumed alcohol subsequent to the driving, a later test is going to include not only the alcohol that was consumed before the driving but also the alcohol that was consumed after the driving. This means that the test result is falsely high and does not accurately report the alcohol in his/her system. A good attorney is necessary to determine how the more recently consumed alcohol is going to impact on the real alcohol concentration as compared to the reported alcohol concentration. He/she must determine what issues or defenses this can legitimately raise.
   
   
10. Are you just plain not guilty? When we read a newspaper or listen to T.V/radio and see that someone prominent has been arrested for drunk driving and what the alcohol result is, most people presume guilt. That's just not the case. It's not trial by newspaper article, or trial by police report, or trial by speculation. It's trial by jury. And the prosecution has to prove to a reasonable certainty by evidence that is clear, satisfactory and convincing in non-criminal cases or beyond a reasonable doubt in criminal cases that either your ability to operate was impaired because of alcohol that you had consumed or that at the time you were driving you had a prohibited alcohol concentration. A skilled attorney can discredit evidence that is not worthy of belief and can further present evidence supporting the defense position that you are not guilty.
    
    
    The above are a number of challenges or defenses. Some may be obvious, some are less obvious and/or more subtle. This does not limit the challenges or defenses. It is impossible to nor would we want to even try to set out every way that we could conceivably be successful. Good attorneys are going to have different ideas as how to proceed on cases and what facts are likely to be most persuasive to the ultimate decision maker, either the judge or the jury. For examples, see "What have we done for others?"

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What can a good attorney do for you?

First, a good attorney collects information from all necessary sources. This naturally includes you. It also includes from the police officers and any other potential witnesses. Depending on the circumstances, it may also include checking court records for prior convictions. It may also include consultations with other professionals such as expert consultants or therapists. It can include going to the scene, obtaining video tape or dispatch tapes, taking photographs, preparing maps or diagrams.

A good attorney will determine how you can successfully defend against the charges. This includes evaluating the strength and weaknesses of the evidence against you and the strength and weaknesses of the evidence for you.

A good attorney should consider challenging the evidence secured against you by the prosecution. In other words, if the breath or blood test can be suppressed for use as evidence against you, that means that the PAC charge would have to be dismissed and the prosecution would not have evidence of the breath/blood test against you for use at trial on the remaining OWI charge or the OWI charge may also have to be dismissed.

A good attorney will determine what sort of theory of defense might have the most success in front of a jury at trial. In other words, what evidence presented to the jury is most likely to successfully convince them that you are not guilty of the charges brought.

A good attorney will also consider what the range of likely sentences will be if you are convicted and suggest means by which you can take steps now to attempt to minimize those sentences.

Every case is different. Every individual charge is different. The evidence against you is different from the evidence against all others. Whether or not a prosecution can be successfully challenged or defeated is going to be different in each case. A good attorney collects information, evaluates it and looks for alternatives to determine what the best result for each particular client is going to be. This can only be done by an attorney whom you have hired. It cannot effectively or realistically be done in a first, no-charge consultation.

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How do I pick the best attorney?

Each attorney has his/her own individual demeanor, style and method. No one individual demeanor, style or method is always the best. However, there are certain things you should look for in hiring an attorney.

Does the attorney know what he/she is talking about? Drunk driving defense is an inordinately complicated area. A basic or working knowledge of OWI law may not be enough. You have to determine from what you see of and hear from the attorney if he/she is proficient in OWI defense.

A good attorney cannot make promises or representations. A good attorney should not even intimate that he/she can deliver a particular result. To do so is mere salesmanship and probably means that the attorney cannot attract clients without making promises.

A good attorney will not prejudge either you or the case. Even some attorney’s think that all cases are the same. Each client is a different human being. Each case consists of different evidence. The attorney must consider all potential avenues and not overlook anything.

In our professional opinion the most important function that a good attorney can do is to start by collecting information. While seemingly simplistic, collecting information is the foundation for everything else that is done in your defense. This is done in a number of ways. Collecting information means getting the most complete and accurate information from you. It includes getting as much information as possible in as many different formats as possible from the arresting officer or police department. This means more than just the police reports. That’s the easy part. While most police officers will not talk to an attorney outside of court, it is still possible to collect information from them by use of either an administrative suspension hearing or refusal hearing or deposition. Collecting information means doing a certain amount of digging. It may mean talking to other witnesses, going to the scene or collecting records about your prior convictions.

After a good attorney has collected sufficient information, he/she evaluates that information. That is, are there challenges to the evidence which, if successful, can win the case? A challenge to evidence is usually known as a motion to suppress. A motion is a written request of the court for a specific remedy. If the remedy is suppression of evidence, that means that the prosecution cannot use that evidence against you. If a challenge to a refusal is successful, there may not be enough evidence left to prosecute you for the underlying OWI. If a motion to suppress a breath/blood test is successful, the PAC charge is dismissed and the OWI charge may have to be dismissed. Even if the OWI charge is not dismissed, the prosecution will have less evidence against you.

A good attorney will also evaluate the information collected to determine the theory of defense. That is, how can the evidence be persuasively presented to a jury to convince them that you are not guilty. While the burden of proof is on the prosecution to prove either to a reasonable certainty by evidence that is clear, satisfactory and convincing (in an OWI/PAC-1) or beyond a reasonable doubt (in all other OWI’s), the jury still needs to believe that you are not guilty, that you did not do it. The theory of defense has to tell the jury why they should find you not guilty. This means highlighting the good facts and explaining the apparent bad facts. A good attorney must do this with a realization and understanding as to what juries will actually consider and trust.

A good attorney also prepares for the worst case scenario. What happens if you are found guilty? How can you and the attorney prepare for the possibility of sentencing? In certain cases that preparation has to commence early in the case and should not wait to see if you are convicted.

However, a good attorney, in our opinion, prepares a case from the prospect of going to jury trial. We don’t delay a case just for the sake of delay. We trust that our reputation and demeanor suggests that when we advise a court or a prosecutor that a case is going to trial, that means they can trust that it really is. So from day one we are collecting evidence so we can determine if we can put forth a persuasive defense.

A good attorney is aggressive. That doesn’t necessarily mean that an attorney has to stand up, shout and pound the table. Aggressiveness means collecting all information, challenging evidence and seeking logical defenses based on the facts. An aggressive attorney is not afraid to go to court and challenge evidence and is not afraid to stand in front of a jury and tell them why you are not guilty.

However, no attorney likes to go to trial and be beaten. An aggressive attorney will go to trial on cases that other attorneys may not think are winnable because the good attorney has experience in constructing persuasive, factual defenses. However, a good attorney should call it like he/she sees it and tell a client when a case cannot or should not be pursued to trial.

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What About This New Drunk Driving Law?

Starting now for alleged violations occurring on or after September 30, 2003, the prohibited concentration level on first and second offenses is lowered from .10 to .08 (grams of alcohol per 210 liters of breath or grams of alcohol per 100 milliliters of blood). The prohibited alcohol concentration level for a third offense is already .08. The prohibited alcohol concentration for fourth and subsequent offenses remains at .02. The law is not retroactive. That is, you cannot be charged with a prohibited alcohol concentration violation between .08 and .099 for an offense that occurred before September 30, 2003.

However, the legislature also did something else extremely interesting. For those individuals charged and also convicted of a prohibited alcohol concentration(PAC) first offense with a breath or blood result between .08 and less than .10, the law eliminated the improvement surcharge (currently $350.00), 24% penalty assessment and a variety of other court costs. Also, for a PAC-1 with a test result between .08 and .10 there is no mandatory alcohol assessment/counseling. Further, if that individual has no further convictions for operating a motor vehicle while under the influence of an intoxicant (OWI) or implied consent (refusal) violations for ten years thereafter, the original PAC conviction would be erased from the record. These provisions only apply to first offenses between .08 and less than .10 and not second or subsequent. Interestingly enough, the law only provides that any of this happens for a conviction of the PAC law. Therefore, it would appear that if an individual is convicted for OWI rather than PAC, none of this would apply.

 

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