4 Common Defenses Used in OWI Cases

Updated by Stangl Law on December 7, 2021

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If you find yourself facing charges involving OWI, it’s important to keep the specific circumstances of your particular situation at the forefront of your mind when preparing to make your case in court.

Your chances of making a successful argument against the prosecution are dramatically increased by hiring a skilled defense attorney with a good deal of experience in OWI, so finding suitable counsel should be your primary concern. Although it’s your lawyer’s job to craft an effective defense, being well versed in common defense strategies yourself can give you an added sense of assuredness in your team’s particular approach when it comes time to be heard in front of a judge.

With OWI prosecution often relying on tangible evidence such as blood alcohol content and other chemical tests given during traffic stops, the method by which officers administer these tests can be subject to scrutiny if officers do not conduct them adequately.

There are also subjective determinations that can be brought into question when determining the validity of a claim made against you. Judgment calls made by officers in the field that are not backed up by objectively gathered evidence only constitute hearsay and can be questioned accordingly.

Here are some common defense strategies often raised by defendants accused of OWI infractions.

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Read Also: Understanding Your Right to Refuse Field Sobriety Tests in Wisconsin

1. Probable Cause

In order to present a piece of evidence deemed viable to the case, the officer involved must have a legal cause to stop, detain, or arrest the person being charged with OWI.

Showing that an officer acted impulsively without probable cause to pull you over, detain you once stopped, or arrest you once detained can invalidate evidence procured during these periods.

2. Implied Consent Warnings

Wisconsin law requires officers to inform those suspected of driving while intoxicated of the legal consequences that arise if a chemical test is refused.

The law states that refusal to submit to chemical tests and/or breath tests results in an automatic DMV license suspension. As I’ve explained in the past, avoiding self-incrimination requires refusing all requests that could jeopardize your innocence.

If an officer forces a chemical test upon you without explaining the consequences of refusal, or if the officer conducts an unauthorized test, any evidence gathered during this time is subject to invalidation and your suspension can be avoided.

3. Subjective Observations

When determining a level of intoxication, officers must utilize their own judgment when determining whether or not you are “under the influence.” The observations and opinions made by an officer can weigh heavily on the circumstances under which they were determined.

For example, what constitutes “failing” a particular test can hinge on an officer’s subjective criteria. The predisposed nature of officer opinion can often be challenged, especially if witnesses were present who can testify to your sober appearance.

4. Problems With BAC Readings

A whole host of issues can make blood alcohol readings a less-than-convincing metric by which to judge intoxication beyond a legal limit. A common problem is the non-specific nature of the analysis.

Many breath machines test for many chemical compounds found on the human breath as alcohol. They used a fixed ratio when determining the conversion of alcohol on your breath to alcohol present in your blood. In reality, this ratio differs from person to person and can even change for an individual based on a number of factors.

In addition to this, an officer can sometimes be shown to have given a test during the absorptive phase. This is a period of time after you’ve had your last drink when you are still actively absorbing the alcohol into your system.

Typically, it can take anywhere from 30 minutes to three hours to completely absorb alcohol from your stomach. This can result in inaccurate test results, especially if food was recently digested as well.

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Wisconsin Attorney Pat Stangl, with offices in Madison and Hayward, specializes in aggressive defense for clients charged with OWI, DUI, DWI, BAC, PAC, drug possession, and other criminal offense charges. Click the link below to get a FREE 10-minute consultation with Attorney Stangl, at no obligation.

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Topics: Drunk Driving Charges (OWI)



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