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.
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.
OWI Defense Success Story
Case Victory: Three Consecutive OWI/PAC 5th/6th Victories in One Month
Attorney Stangl of Stangl Law Offices, S.C. achieved three (3) back-to-back OWI 5th/6th victories within a one-month period in May-June 2023 thereby saving his clients from mandatory prison sentences. In State v. Shirikian, 2023 WI App. 13 the Court of Appeals held that the sentencing language for a 5th/6th OWI/PAC offense requires the sentencing court to impose a mandatory prison sentence upon conviction. Even if the sentencing court wanted to impose a non-prison sentence, they do not have the discretion or authority to do so under the current penalty structure for the offense and this decision.
In the first case Attorney Stangl successfully argued that one of his client’s prior convictions could not be counted because he was not properly advised of his right to counsel in a previous case and that the record did not demonstrate a free and voluntary waiver of his 6th amendment right to counsel. After investigating and researching the issue, Attorney Stangl brought a motion challenging the uncounseled conviction and after an evidentiary hearing the trial court agreed that the prior conviction could not be counted, thereby reducing the 5th/6th offense to non-mandatory prison charges.
Approximately 2 weeks later, in a different case, Attorney Stangl previously argued to the court that the arresting officer did not have a sufficient legal reason or probable cause to arrest his client on a 5th/6th OWI/PAC. After the evidentiary hearing and briefing by the parties the court issued a very thorough and analytical oral decision granting the defendant’s Motion to Dismiss and the case against his client was dismissed.
Within two weeks after the 2nd consecutive OWI/PAC 5th/6th victory Attorney Stangl secured his 3rd consecutive OWI/PAC 5th/6th victory within (1) one month with the dismissal by the State of charges during a preliminary hearing. At the preliminary hearing it was clear that the arresting officer testified falsely about the alleged events including his client’s performance on the field sobriety test (FST’s) when in fact his client never submitted to the FST’s. Once the State realized the major problem with the officer’s perjured testimony it moved for immediate dismissal of all the charges. His client will not be re-charged.
FREE 10-Minute Consultation
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.