Celebrating a birthday often involves consuming beverages, especially on a warm summer day. That is exactly what S.J. was doing with his friends and family on a day trip in a Wisconsin State Park. After cleaning up, S.J. placed a bag of garbage in the back of his pickup truck and drove to the closest garbage dumpster within the park. As he was disposing the garbage a DNR Warden walked over and noticed a bottle of beer in the center console cup holder. After administering field sobriety tests, the warden arrested S.J and he was charged with an OWI (3rd). Blood tests results came back at 0.102.
Because S.J. was drinking at the time he was stopped and his blood was drawn one hour later, we were able to make a strong curve defense: that at the time of driving S.J.’s blood alcohol content was below the legal limit of 0.80, but that one hour later when his blood was drawn, his body had been able to process and absorb the alcohol he had consumed causing his test result to be 0.102. We filed a [fancy type=”iframe” data=”//docs.google.com/viewer?url=http://www.wisconsinowiattorney.com/wp-content/uploads/2014/07/LearnedTreatise.pdf&hl=en_US&embedded=true”]Notice of Intent to Offer a Learned Treatise[/fancy] so that we could admit a [fancy type=”iframe” data=”//docs.google.com/viewer?url=http://www.wisconsinowiattorney.com/wp-content/uploads/2014/07/DubowskiArticle1.pdf&hl=en_US&embedded=true”]Scientific Publication by Dr. Kurt M. Dubowski[/fancy], which establishes that average time it takes from the end of drinking to reaching peak alcohol concentration is 57 minutes for males and 42 minutes for females.
At the same time, we also filed a [fancy type=”iframe” data=”//docs.google.com/viewer?url=http://www.wisconsinowiattorney.com/wp-content/uploads/2014/07/HGN-motion.pdf&hl=en_US&embedded=true”]Motion to Exclude Testimony or Evidence of the HGN Test[/fancy] (the field sobriety test where the officer checks a persons eyes to attempt to determine if they are intoxicated). The warden claimed that he had properly administered the eye test and that S.J. displayed signs of intoxication. Excluding this information would mean that the warden would not be allowed to tell the jury about the signs of intoxication he claimed to have observed and strengthen our curve argument.
We arrived at the motion hearing prepared to demonstrate that the warden did not properly administer the eye test. Prior to the motion hearing we discussed our strategy with the prosecutor, pointing out the problems he was likely to have. We were able to negotiate an agreement to amend the OWI (3rd) to a Reckless Driving traffic citation.
Much of our success in defending those accused Operating While Intoxicated is due to our fighting the case in motion hearings challenging the admissibility of evidence prior to trial. That is exactly how we ended up getting T.M.’s case dismissed. T.M. was a college student at the University of Wisconsin who was pulled over by police for having a common tree shaped air freshener hanging from his rear-view mirror. The officer claimed that the T.M. was violating WIS. STAT. § 346.88(3)(b), which states, “No person shall drive any motor vehicle upon a highway with any object so placed or suspended in or upon the vehicle so as to obstruct the driver’s clear view through the front windshield.” After the traffic stop the officer arrested T.M. for operating with a restricted controlled substance. T.M. was taken to the hospital for a blood draw and his test results came back positive, showing [fancy type=”iframe” data=”//docs.google.com/viewer?url=http://www.wisconsinowiattorney.com/wp-content/uploads/2014/07/THC-Labs1.pdf&hl=en_US&embedded=true”]8.1 ng/mL Delta9 THC[/fancy].
It was obvious that this was a pretext stop, where the officer attempts to come up with a legal justification for conducting a traffic stop when their actual purpose is to question the driver about drinking and driving or to search the vehicle. We filed a [fancy type=”iframe” data=”//docs.google.com/viewer?url=http://www.wisconsinowiattorney.com/wp-content/uploads/2014/07/MotAirFreshener.pdf&hl=en_US&embedded=true”]Motion to Suppress Evidence Based on an Unlawful Stop and Detention[/fancy].
The judge agreed that the officer conducted an illegal traffic stop and ordered that all evidence in the case be suppressed, including the blood test result. This left the prosecutor with nothing to offer at trial, forcing him to dismiss the case.
After two tours of duty in Iraq, R.N. moved to Wisconsin for a job. After a night out with colleagues, R.N. was found sleeping in his car, with his car running at the end of a dead end road halfway between the bar and his house. After completing field sobriety tests, R.N. was arrested for an OWI. His car was searched and a Glock Handgun was found in his glove box. Even though R.N. had extensive training and experience with firearms, had a valid out of state conceal-carry permit and there was no question that he was not handling his firearm during the evening in question, the officer arrested him for a criminal charge of Wis. Stat. § 941.20(1)(b), Endangering Safety by Use of Dangerous Weapon as well as OWI.
Because the officer referred criminal charges to the District Attorney’s Office and wrote out the OWI and PAC citations for the municipal court, we had to work with two separate prosecutors on this case. In part, because we were dealing with someone with who had served his country for a number of years and had extensive experience with a handgun (as well as no indication that the handgun was ever taken out of the glove box that night) we were able to meet with the District Attorney’s Office before the initial appearance and agree that no criminal charges would be filed.
After ensuring that no criminal charges would be filed, we turned our focus on the OWI case. After requesting numerous records related to the case we discovered that the were able to determine that the [[fancy type=”iframe” data=”//docs.google.com/viewer?url=http://www.wisconsinowiattorney.com/wp-content/uploads/2014/07/TransCode3111.pdf&hl=en_US&embedded=true”]required 20 minute observation period[/fancy] had not been properly completed prior to administering the breath test by comparing the time on the squad car video along with the time written on the Informing the Accused Form and the time stamp on the [[fancy type=”iframe” data=”//docs.google.com/viewer?url=http://www.wisconsinowiattorney.com/wp-content/uploads/2014/07/IntoxNETReport1.pdf&hl=en_US&embedded=true”]IntoxNet Report[/fancy]. Since the observation period had not been properly completed, we believed the breath test results were not reliable and should be excluded from evidence at trial.
We showed up for trial, prepared to challenge the admissibility of the test result for failure to comply with the required 20 minute observation period, but decided to adjourn the trial after the prosecutor indicated that he would be open to amending the case to a non-OWI traffic ticket if we could demonstrate evidentiary problems in the case. We wrote the prosecutor a [[fancy type=”iframe” data=”//docs.google.com/viewer?url=http://www.wisconsinowiattorney.com/wp-content/uploads/2014/07/20MinuteLetter.pdf&hl=en_US&embedded=true”]Detailed Letter Outlining the Evidentiary Problems[/fancy] in the case. The prosecutor then agreed to dismiss the PAC citation and amend the OWI to a reckless driving traffic ticket with no driver’s license suspension.
Few professions are hit harder by a drunk driving conviction than commercial driver. A drunk driving conviction, specifically an OWI 3rd, results in an life-time disqualification for a commercial driver’s license in Wisconsin. That’s the situation our client, M.O., found himself in. M.O. couldn’t afford to start looking for a new career. M.O. knew he would have to do whatever he could to keep this unfortunate incident from ruining the rest of his career. The blood test result came back at 0.202 and the prosecutor’s [[fancy type=”iframe” data=”//docs.google.com/viewer?url=http://www.wisconsinowiattorney.com/wp-content/uploads/2014/07/GrantCoOffer.pdf&hl=en_US&embedded=true”]final offer was to plead guilty to charged OWI 3rd and agree to a sentence of 125 days in jail[/fancy].
In reviewing M.O’s previous two OWI convictions while preparing his case, we realized that both of his previous convictions were within 10 years of each other and in municipal courts – something not permitted in Wisconsin. In Wisconsin, municipal courts only have jurisdiction to adjudicate an OWI 2nd case if it was more than 10 years after an OWI 1st. Realizing the municipal court lacked jurisdiction to convict M.O for an OWI 2nd, we filed a [[fancy type=”iframe” data=”//docs.google.com/viewer?url=http://www.wisconsinowiattorney.com/wp-content/uploads/2014/07/MotReopenDismiss.pdf&hl=en_US&embedded=true”]Motion to Reopen and Dismiss the previous OWI conviction[/fancy]. The prosecutor did not oppose the motion and the [[fancy type=”iframe” data=”//docs.google.com/viewer?url=http://www.wisconsinowiattorney.com/wp-content/uploads/2014/07/OrdReopenDismiss.pdf&hl=en_US&embedded=true”]court signed an order to reopened and dismissed the previous OWI conviction[/fancy].
With the previous OWI case dismissed, M.O’s current case was amended from and OWI 3rd down to an OWI 1st. M.O. was very happy that jail was no longer on the table but still wanted to fight the amended OWI 1st and go forward with a jury trial. At trial, he was found not guilty of the OWI 1st; most of the jury voted to convict on the PAC charge, with one juror remaining unconvinced that the State met its burden. Instead of accepting the State’s offer and spending 125 days in jail, M.O. was eligible to resume his career as a commercial driver.