DRUNK DRIVING DEFENSE
Under Wisconsin law, there are two basic charges or citations that arise from a drunk
driving arrest. One is called operating while intoxicated (OWI). A person charged
with OWI is accused of operating a motor vehicle under the influence of an intoxicant.
The intoxicant can be alcohol or any legal or illegal drug that impairs driving.
The other is called operating with a prohibited blood alcohol concentration (PAC).
A person charged with PAC is accused of operating a motor vehicle with an alcohol
concentration in excess of the legal limit. The legal limit may vary depending on
a number of factors including whether the person has ever been convicted of drunk
driving or a similar offense before. You can receive both of these citations based
on a single arrest for drunk driving.
Penalties for drunk driving convictions include monetary fines or forfeitures, jail
time and loss of drivers license. In some cases the State can seize or immobilize
your vehicle. These penalties may escalate based on both the person’s blood alcohol
concentration and the number of prior drunk driving related convictions you have,
if any.
When a person is arrested for drunk driving they are usually asked by law enforcement
to submit to one or more tests of the blood, breath or urine to determine their blood
alcohol concentration. A person in this situation has to decide whether they want
to submit to the test and provide law enforcement with evidence relating to their
level of intoxication. There is no right to consult with an attorney prior to choosing
whether to submit to the test. If you refuse to submit to a blood, breath or urine
test after being arrested for drunk driving, you have ten days to file a request
for a “refusal hearing” with the Circuit Court. If you do not file such a request
within the ten day time limit, you will lose your drivers license for at least 12
months and possibly longer. In some cases it may be advisable for a person arrested
for drunk driving to refuse to submit to a blood, breath or urine test.
Although drunk driving cases can often be difficult to defend, there are a variety
of issues that an attorney may be able to assist with. The issues that are applicable
to any particular case vary with the facts and circumstances of that case. However,
the following is a list of issues that may come up in your particular drunk driving
case:
1. Prompt action to preserve your drivers license - If you are arrested for drunk
driving, you may lose your drivers license even before your case is finished in court.
If the result of your blood, breath or urine test indicates an alcohol concentration
in excess of the legal limit, the Department of Motor Vehicles will administratively
suspend your drivers license 30 days from the date of the test result. You have 10
days from the date of the test result to request an “administrative review hearing.”
If you fail to do so, there is nothing that can be done about the loss of license.
Similarly, your drivers license will be revoked if you refuse to submit to a test
of your blood, breath or urine. Again, you have 10 days to file a request for a “refusal
hearing” to preserve your license while your case is pending. These actions against
your drivers license are independent of what my be going on in court with respect
to your drunk driving case.
2. Did the police have a reason to stop you and probable cause to arrest you? - Law
enforcement cannot pull you over and arrest you for no reason. Police need “reasonable
suspicion” to pull you over and “probable cause” to arrest you. These are legal terms
that mean different things depending on the circumstances. If law enforcement arrests
you for drunk driving without “reasonable suspicion” to stop you or “probably cause”
to arrest you, they have violated your Constitutional Rights. Further, the violation
of your rights may mean that any evidence that law enforcement obtained from you
cannot be used to prosecute you for drunk driving. Generally, the State is prohibited
from using illegally seized evidence, including blood, breath or urine test results,
in court. In order to challenge the use of illegally seized evidence, it is usually
necessary to file a motion with the court asking the judge to throw the evidence
out.
3. Do you have a defense at trial? - The State has the burden to prove you are guilty
of drunk driving. You do not have to prove you are innocent. There are a variety
of tactics and strategies that can be used at trial to prevent the State from convicting
you.
In a basic drunk driving case, the State must prove that you operated a motor vehicle
on a highway and that, at the time, you were either intoxicated or had a prohibited
alcohol concentration. Common defenses to drunk driving include:
a. Challenges to the alcohol test result - Even if the alcohol test result is admitted
at trial, there are a variety of ways to challenge it. One of the most common challenges
to the test result is the “blood alcohol curve” defense. This defense argues that
the alcohol test result is inaccurate because your blood alcohol level was still
going up when the police pulled you over. You can also raise challenges to the accuracy
of the testing machine or the manner in which the test was conducted.
b. Challenges to evidence of intoxication - To prove intoxication, the State usually
relies on the arresting officer to testify about their observations of you during
their contact with you. This includes their observations of your performance on the
“field sobriety tests.” An experienced attorney can often conduct effective cross
examination of police to poke holes in their story about your level of intoxication.
c. Challenges related to driving - To be convicted of drunk driving, you must have
been operating a motor vehicle on a highway. You cannot be convicted if the State
cannot prove you were “operating.” You cannot be convicted if the State cannot prove
you were on a “highway.” Both “operating” and “highway” have legal definitions. It
is up to the State to prove that the activity you engaged in meets the definitions.
Depending on the circumstances, creative defenses can prevent the State from carrying
it’s burden with respect to these issues.
4. Challenges to prior convictions - If you are charged with a second or subsequent
offense of drunk driving, it may be possible to challenge the use of one or more
of your prior convictions. This process is called a “collateral attack.” A “collateral
attack” on a prior conviction invalidates the use of that conviction as a penalty
enhancer in your current case. For example, if you are charged with a 3rd offense
drunk driving, a collateral attack could lower the charge to a 1st or 2nd offense,
depending on the circumstances.
A prior conviction may be subject to “collateral attack” if it was a criminal drunk
driving related conviction (this does not include 1st offense OWI’s in Wisconsin),
you did not have a lawyer and you never entered a valid waiver of your right to have
a lawyer.
The process for “collateral attack” generally requires that the records and transcripts
from your prior case be ordered and reviewed to determine if there was a waiver of
your rights to a lawyer. If there is the possibility of a “collateral attack” based
on the records, a motion must be filed with the Circuit Court.
Challenging prior convictions is important because penalties for drunk riving convictions
escalate based on the number of prior convictions you have. Successful challenges
to prior convictions reduce the penalties you face on your current case. Additionally,
current Wisconsin law provides that 5th and subsequent offense drunk driving convictions
are felonies. In some felony drunk driving cases, it is possible to challenge prior
convictions and change your current case from a felony to a misdemeanor.
5. Innovative approaches to sentencing - In most cases, sentencing in drunk driving
cases is controlled by “sentencing guidelines.” The guidelines dictate what penalty
you will get if you are convicted of drunk driving. The penalties go up based on
both your alcohol test result and the number of prior drunk driving related convictions
you have. Judges generally follow these guidelines fairly closely. However, there
are a number of proactive steps that can be taken while your case is pending in court
that allow you to argue that you should receive a sentence less than what the guidelines
suggest. Successful completion of alcohol treatment and community service hours are
examples of mitigating factors that judges may consider in reducing your sentence
from the guideline amount.
