Wisconsin calls drunk driving “operating while intoxicated” (OWI). If you’re facing OWI charges, you need strategic legal guidance to protect your rights and minimize the impact on your life.
A strong defense usually focuses on how the stop happened and how Madison law enforcement collected the evidence. Then, your lawyer can challenge whether the State can meet every legal requirement for a conviction. While every case is different, there are some common defense strategies that cite issues with the following case elements.
The Traffic Stop
Most OWI cases starts with a stop. Police must have reasonable suspicion that you committed a traffic violation or other unlawful activity before they can legally pull you over. Weaving within your lane or leaving a bar parking lot may capture an officer’s interest, but that alone doesn’t necessarily justify a stop.
If the officer lacked reasonable suspicion, the court will suppress evidence of everything that followed. That includes field sobriety tests and chemical test results such as blood test results that show your Blood Alcohol Concentration. Without that evidence, the State often cannot continue their case, much less convict you of a crime.
The Extension of the Traffic Stop
Even when police pull over your vehicle for one valid reason such as speeding, the officer cannot require you to leave your vehicle and ask you to perform Standardized Field Sobriety Tests unless the officer has separate reasonable suspicion that you are operating under the influence of alcohol or a combination of impairing substances that satisfy the definition of operating while impaired under Wisconsin law. For example, if an officer merely smells a strong odor of alcohol from the vehicle you are driving and there are other passengers inside that vehicle, that does not necessarily give the officer reasonable suspicion to believe you are operating while impaired. The officer must have clear and articulable facts, not merely a hunch, that you are operating while impaired, which generally requires both evidence that you are currently under the influence of an intoxicant, such as alcohol, and in cases besides restricted controlled substances that are illegal regardless of the amount in your system, additional facts that sufficiently prove that you are reasonably likely to be under the influence. For example, if you admit to drinking within the last hour before driving and are having a difficult time understanding and responding to the officer’s questions, that will typically be enough for an officer to request you step out of the vehicle for the option of performing Standardized Field Sobriety Tests.
Once again, if the officer does not have reasonable suspicion, in this case to begin a drunk driving investigation, the court will suppress evidence of everything that followed. That includes field sobriety tests and chemical test results such as blood test results that show your Blood Alcohol Concentration. Without that evidence, the State often cannot continue their case, much less convict you of a crime.
The Reason for the Arrest
After the stop, police must have probable cause to arrest you. Officers might rely on observations like noticing you smell like alcohol or are exhibiting nervous behavior. However, these signs can have innocent explanations. In fact, people who go to a bar and have a drink spilled on them may smell like alcohol even if they are acting as a designated driver. Additionally, officers cannot discriminate the smell or odor of alcoholic substances such as beer from non-alcoholic substances such as Non-Alcoholic beer. Furthermore, almost everyone pulled over by an officer is anxious and millions of Americans have clinical anxiety so nervousness alone does not demonstrate that you are guilty of an OWI offense.
Field sobriety tests can also lead to an arrest. Officers must follow strict procedures when they’re administering and interpreting the tests. An officer who rushes instructions, fails to perform the tests correctly (which is quite common) or ignores the fact that the individual has injuries or factors that make the results unreliable (such as age, weight, or is subject to improper test conditions) will not be able to demonstrate that the results of the Standardized Field Sobriety Tests are reliable to be used in court.
A poor performance on roadside tests doesn’t automatically prove intoxication, especially under flawed testing conditions or based on factors that make those results unreliable for court.
Some individuals refuse to perform the Standardized Field Sobriety Tests. In that event, the judge will decide whether that can be used against the individual. Since the Fourth Amendment protects individuals against unreasonable searches and seizures without a warrant except under limited circumstances, if a person does not consent to the Standardized Field Sobriety Tests then the government should not be able to use evidence of the person’s refusal to submit to a search as evidence against him by arguing that refusal demonstrates consciousness of the person’s guilt.
If the officer has enough evidence following the Field Sobriety Tests, or refusal to perform the Tests, to request a Preliminary Breath Test, then the officer has a right to ask the person whether s/he agrees to perform the Preliminary Breath Test. If the person refuses, the judge will decide whether the refusal cannot be used against the person because it is a warrantless search protected by the Fourth Amendment.
Ultimately, the judge must consider the totality of facts known to an officer at the time the decision was made to arrest the driver for an OWI offense. The judge will consider whether the suspected operating or driver of the vehicle was operating the vehicle as that term is defined under Wisconsin law (i.e. manipulating the controls of the vehicle necessary to set that vehicle into motion) and whether the operator was probably legally impaired under Wisconsin law. This generally means that the judge will consider the extent to which the officer reasonably confirmed evidence of that the individual was under the influence of an impairing substance (i.e. that the person admitted to a couple shots within the past hour), the individual’s driving behavior, and the other factors that suggested the individual either was or was not impaired at the time of operating or driving the vehicle.
If there is not enough evidence to establish probable cause, the judge will order the evidence collected by police thereafter to be suppressed and the government cannot use the evidence at trial. This often results in the government dismissing OWI charges.
Chemical Test Procedures
Chemical tests are usually the strongest evidence in an OWI prosecution. Wisconsin relies on breath and blood to show a prohibited alcohol concentration (PAC). These tests require properly calibrated equipment and trained operators. Factors like improper observation periods and device errors can influence the results.
Blood tests also have strict collection and chain-of-custody rules. Improper storage or testing delays can affect their accuracy. If the state didn’t comply with those testing requirements, the results may be excluded – or at least given less weight.
Prior Offenses and Enhancers
Your potential punishment can increase with prior OWIs, even if you got them in other states. Wisconsin prosecutors must prove that prior offenses qualify before priors can be used to enhance your charges or penalties. They also must calculate any “lookback” periods correctly. In Wisconsin, a second OWI offense is still counted as a first offense if the prior offense occurred outside the 10 year “lookback” period, yet the next offense is counted as a third offense. Additionally, in some circumstances in which individuals did not have an attorney for their prior operating while impaired offenses, those offenses may not count if the individual’s constitutional rights were violated.
Administrative License Actions
An OWI arrest triggers administrative penalties, including administrative suspension. These actions follow different rules than an OWI court cases – they’re often heard in a different court system; however, you can appeal the decisions to a judge. A negative outcome won’t result in jail time, but can affect your license.
Your lawyer can help you request a hearing before the deadline passes. Your defense may focus on whether the stop or arrest were valid or question the chemical testing procedures. If you’re successful in an administrative hearing, that can help you preserve your driving privileges and positively affect your OWI case.
Talk to a Drunk Driving Defense Attorney in Madison, Wisconsin
Drunk driving cases hinge on small details, so having an experienced OWI defense lawyer on your side can make a big difference. Casper Mehlos Law Group, LLC, defends clients facing OWI charges in Madison and the surrounding areas. Contact us to learn more about your defense options and how we can help.