Criminal Defense & OWI 

Frequently asked questions

Criminal Defense FAQs

Click a question below to reveal answers. If you don't see the topic you are searching for in the lists below which speak to your current and specific needs, please request a FREE 15-minute consultation at no obligation to discuss the details of your case with Criminal Defense Attorney Pat Stangl.

What should I do if I am
arrested?
First, be polite and cooperative. Arguing, struggling or fighting will never make the situation better. Rarely, if ever, is a person able to convince an officer to stop an arrest. Remain silent! Finally, call a lawyer as soon as possible.
When should I call a lawyer?
As soon as you become aware that the police (or some other investigating agency) are looking for or investigating you, or if you believe that you may have committed a crime. A lawyer can intervene with the police and either prevent an arrest or, if you are going to be arrested, arrange for your surrender at a time and in a manner that minimizes embarrassment to you or your family. Hiring a competent lawyer in a timely fashion may also protect you from being questioned by the police. If questioned by the police, never answer any questions and always ask for an attorney to be present during any questioning, no matter where the attempted questioning takes place.
Why is remaining silent critical?
Never answer any questions and remain silent even if it means going to jail. Call a qualified criminal defense lawyer as soon as possible. When the police, or some other investigating agency, are investigating you or if they believe you may be involved in the commission of a crime, they will always attempt to talk to you. The reason they want to talk to you is not, as many police officers claim, “to get your side of the story” but rather in hopes that you will incriminate yourself. Incriminating statements are statements either verbal or written which show you may have committed or been involved in the commission of a crime.
What are Miranda Rights?

Most people are aware, at least in some sense, of their Miranda rights. Those rights, which the Supreme Court laid out in Miranda v. Arizona, 384 US 436 (1966) are protective rights which apply when two conditions are met; (1) a person is in custody, and (2) that person is subject to interrogation.

Most police and investigating officers are well versed in Miranda and will want to talk to you while you are not in custody. That is, they will come to your home or business and want to talk to you under circumstances where a reasonable person would feel free to leave the setting, thus the legal standard for arrest and/or custody is not met. Most people who are the subject of a criminal investigation incriminate themselves by making verbal and/or written statements while they are not in custody. There is no requirement that Miranda be read when a person is not in custody. Therefore, it is critical to invoke your right to remain silent under all circumstances. If the police ask you any questions you should simply state that “I invoke my Fifth Amendment right to remain silent and I will not answer any questions without a lawyer present.” Most investigative officers will become upset or threatening after you tell them you are not answering any questions. This is the best initial step you can take to defend yourself even if it means being arrested and taken to jail.

What is a misdemeanor in Wisconsin?

In Wisconsin, a misdemeanor is a crime with a maximum penalty of one year in jail and a $10,000.00 fine. There are different classes of misdemeanors but never can the maximum penalty exceed one year in jail. Generally a conviction for a misdemeanor does not include a restriction on the right to possess firearms; however, there is an important exception. By virtue of 1996 amendments made to the Gun Control Act of 1968, persons convicted of domestic violence offenses are prohibited under Federal Law from possessing firearms. Section (g) (9) prohibits anyone “who has been convicted in any court of a misdemeanor crime of domestic violence” from legally possessing a firearm.

Furthermore, it is unlawful for any person to possess a firearm “who is subject to court order that (a) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; (b) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (c) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.

What is a felony in Wisconsin?

A felony is a crime that carries with it a potential sentence of at least one year and one day in prison. In Wisconsin, other serious consequences flow from a felony conviction including prohibiting a convicted felon from possessing a firearm. A convicted felon also loses the right to vote, can never hold public office, and must submit a sample of their DNA to the DNA Database in Wisconsin.

If a person is convicted of a sexual assault or sexual offense that person will be required to register as a sex offender. If a person is convicted of a serious child sex offense that person cannot engage in any occupation or participate in a volunteer position that requires that person to work or interact primarily and directly with children under the age of sixteen.

What happens if I am arrested and taken to the county jail?
You will be fingerprinted and photographed. You will either be released on personal recognizance or you will have to wait for a bail commissioner to set bail. Provide basic personal information only and do not make any statements, verbal or written, about the allegations. Remain silent.
What is bail?
Bail is cash money or other property that is deposited with the court to ensure that the person accused will return to court when he or she is required to do so. If the defendant returns to court as required, the bail will be returned at the end of the case, even if the defendant is ultimately convicted. Sometimes cash bail is used to satisfy court costs or fines. However, if the defendant does not come to court when required or violates his or her bail conditions, the bail will be forfeited to the court and will not be returned.
How much will it cost to hire a lawyer in Wisconsin?

The cost of defending against criminal charges will vary depending upon the nature and severity of the charges, the facts of the case, and other factors including the lawyer’s reputation. We usually have a two set fee structure for representation in criminal cases. The first fee is a non-refundable retainer that covers all representation at the trial level unless the case proceeds to a jury or court trial. If the case proceeds to a jury or court trial then an additional non-refundable retainer fee is due three (3) weeks prior to the first scheduled jury trial date. If those fees are not tendered the firm will withdraw from further representation. The reason we have a two set fee structure is to allow us to thoroughly investigate, research, and develop defense strategies prior to the determination of whether proceeding to a jury trial is in our client’s best interest or not. That is a joint decision made with the client. Nonetheless, an individual has an absolute right to a jury trial regardless of our assessment of the likelihood of success on the merits.

We provide a free initial consultation so that we can fully assess your case and discuss fee arrangements. Do not be reluctant to ask specific questions about potential representation—there are no dumb questions and if hired our job and goal is to ethically, aggressively and thoroughly defend your case. Our goal is to win. We promise that you will be provided with straightforward advice about the best manner in which to proceed including potential likelihood of success on the merits, evidentiary and dispositive issues and chances of success at trial or on appeal.

Do you handle all types of criminal cases in Wisconsin?
At Stangl Law Offices, S.C. we have successfully defended numerous state and federal felony cases ranging from first degree intentional homicide, drug trafficking and drug conspiracies, fraud and other “white collar” crimes, and drunk driving, as well as criminal domestic and misdemeanor cases.

OWI Defense FAQs

If I'm stopped by a police officer and he asks if I've been drinking, what should I say?
You are not required to answer potentially incriminating questions. Politely say, “I would like to speak with an attorney before I answer any questions.” This is an appropriate reply, although you are not entitled to counsel during a roadside stop unless you are in custody and questioned. Saying that you had one or two beers is not incriminating, is not sufficient to cause intoxication, and may explain the odor of alcohol on the breath. [Rolled up]
Do I have to take field sobriety tests in Wisconsin?

 There are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus, alphabet recital, modified position of attention (Rhomberg), fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three to five such tests.

Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FSTs. The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence that the suspect inevitably “fails.” Politely refuse to do any and all FSTs.

In Wisconsin, the police want you to submit to FSTs for two (2) reasons. First, by submitting to the tests you are giving the officers facts to support a legal basis for arrest. This legal standard is probable cause. Secondly, the FSTs are used as evidence to prove the OWI charge. A chemical test result is not necessary to prove the elements of the OWI offense. That is why politely refusing all FSTs and not blowing into a handheld breath testing device in the field called a preliminary breath test or PBT is your best initial defense. [Rolled up]

Do I have a right to an attorney when I'm stopped for drunk driving and asked to take a field sobriety test?

The law varies on this issue from state to state. In Wisconsin, there is no right to an attorney until you have submitted to (or refused) blood, breath, or urine testing once you are in custody and subject to questioning.

You are not legally required to submit to Field Sobriety Tests (FSTs) and it is not in your best interest to do so. Your license cannot be revoked nor can you be cited for a refusal if you politely refuse to do FSTs. [Rolled up]

What are police looking for during an OWI stop in Wisconsin?

The traditional symptoms of intoxication taught at the police academy are:

Flushed face; red, watery, glassy and/or bloodshot eyes; odor of alcohol on breath; slurred speech; fumbling with wallet trying to get license; failure to comprehend the officer’s questions; staggering when exiting vehicle; swaying/instability on feet; leaning on car for support; combative, argumentative, jovial or otherwise “inappropriate” attitude; soiled, rumpled, disorderly clothing; stumbling while walking; disorientation as to time and place; inability to follow directions. [Rolled up]

Why did the police make me follow a light with my eyes from left to right?

This is the “horizontal gaze nystagmus” test, a relatively recent development in OWI investigation. The officer attempts to estimate the angle at which the eye begins to jerk (“nystagmus” is medical jargon for a distinctive eye movement or oscillation); if this occurs sooner than 45 degrees, it theoretically indicates blood-alcohol concentration over .05%. The smoothness of the eye’s tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.

This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer’s ability to recognize nystagmus and estimate the angle of onset. Because the medical community does not accept the test, it is not admissible as evidence in many states; it continues, however, to be widely used by law enforcement. It is admissible in Wisconsin and is subject to the weight the fact finder is willing to give it subject to cross-examination. [Rolled up]

How do police decide who to pull over for drunk driving in Wisconsin?

The following is a list of things officers consider when searching for drunk driving, in order of probability that the driver is intoxicated. This list is based upon research conducted by the National Highway Traffic Safety Administration.

 

  • Turning with a wide radius
  • Straddling center of lane marker
  • “Appearing to be drunk”
  • Almost striking object or vehicle
  • Weaving, swerving or drifting
  • Driving on other than designated highway
  • Speed more than 10 mph below limit
  • Stopping without cause in traffic lane
  • Following too closely
  • Tires on center or lane marker
  • Braking erratically
  • Driving into opposing or crossing traffic
  • Signaling inconsistent with driving actions
  • Slow response to traffic signals
  • Stopping inappropriately (other than in lane)
  • Turning abruptly or illegally
  • Accelerating or decelerating rapidly
  • Headlights off
Should I agree to take a chemical test? What happens if I don’t?

The consequences of refusing to submit to a blood, breath or urine test varies according to the state. In Wisconsin, there are three adverse consequences:

Your driver’s license will be revoked for at least one year and up to two years depending on whether you have any prior convictions. A refusal violation, at this time, is a civil proceeding and is not a crime. Thus you cannot be sent to jail for a refusal. However, a refusal can be counted as a prior conviction for purposes of charging you with a subsequent enhanced offense. For example, if you had a refusal violation in 1995 and are cited for an OWI or PAC violation in 2004 it will be charged as a second offense, which is a crime.

Finally, the fact of refusal may be introduced into evidence at trial on the OWI charge as “consciousness of guilt.” Of course, the defense is free to offer other reasons for the refusal. Thus, the decision is one of weighing the likelihood of a high blood-alcohol reading against the consequences for refusing.

Do I have a choice of chemical tests? Which should I choose?
In Wisconsin, you do not have a choice of a blood, breath or urine test. Rather, the arresting agency determines what their primary test will be—blood or breath. While the law allows for urine tests, due to their unreliability, they are not used in Wisconsin. Since you don’t have a choice of tests, the question becomes the chance of registering a high BAC-Blood/Breath Alcohol Concentration against the consequences for refusing. If you submit to the primary test offered by the arresting agency, you have the absolute right to the alternative test free of charge. The officer cannot interfere with your right to that alternative test or it can lead to suppression of the test results. You should always request the alternative test.
The officer never gave me a “Miranda” warning. Can I get my case dismissed?

No. The officer is supposed to give a 5th Amendment warning once you are in custody and questioned. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest in its case at trial.

Of much greater consequence is the failure to advise you of the standard “implied consent” law – that is, your legal obligation to take a chemical test and the results if you refuse. In Wisconsin this information is contained on a pink sheet which is called “The Informing the Accused.” This can affect the suspension and revocation of your license.

Why am I being charged with TWO crimes?
In Wisconsin the traditional offense is “operating under the influence of an intoxicant” (OWI). In recent years, however, 49 states have also enacted a second, so-called “per se” offense: driving with an excessive blood alcohol concentration (either .08%–as in Wisconsin–or .10% in some other states). In Wisconsin BOTH offenses are charged unless a person refuses the chemical test; however, forcible blood draws are permissible under certain circumstances in Wisconsin and can still result in a PAC charge even if you initially refuse.
The officer took my license and served me with a notice of intent to revoke after the breath test. How can he do that if I’m presumed innocent?

 Agreed, it is blatantly unfair. But the law in most states (including Wisconsin) having a “per se” statute (see question above) provides for immediate suspension and confiscation of the license if the breath test result is above the legal limit (or, in the case of a blood test once the result shows a prohibited concentration).

Warning: Be aware of the 10-day deadline for requesting a hearing on the suspension. Once a prohibited concentration is registered you should receive a yellow sheet of paper which needs to be filled out to request an administrative hearing. We may be able to get your license reinstated pending the resolution of the charges.

Can I represent myself? What can a lawyer do for me?

You can represent yourself, but it is not a good idea. Drunk driving is a very complex area of the law with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing, and administrative license issues.

What can a lawyer do? Nothing (or worse) if he is not qualified in this highly specialized field–-no more than a family doctor could help with brain surgery. A qualified attorney, on the other hand, can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, win trials and refusal hearings.

How can I find a qualified drunk driving lawyer?

The best way to find a good DUI/DWI lawyer is by reputation. There are attorneys who have state and national reputations; these, of course, are expensive.

An excellent indication of quality and experience is membership in the National College for DUI Defense. Completion of that organization’s interactive three-day seminar presented at Harvard Law School every year is another clear sign of expertise.

When you meet with an attorney, make sure of three things:

 

  • He or she has extensive experience in OWI and criminal litigation
  • He or she has a reputation for going to trial in appropriate cases and winning, rather than just “pleading out” his or her clients
  • The financial terms of representation are clear.
What will it cost to get a lawyer?

This varies, of course, by the reputation and experience of the lawyer and the geographic location. Generally, the more skilled the attorney and the larger the city, the higher the fee. A related factor is the amount of time a lawyer devotes to his cases: the better lawyers take few clients, spending more hours on each.

The range of fees is significant. An OWI specialist with a statewide reputation for winning may charge five to ten thousand dollars or more depending on the facts. In addition, the fee may vary by other factors, including:

  • Whether the crime is a misdemeanor or felony
  • Whether prior convictions are alleged
  • Whether there will be a trial or an appeal
  • Administrative license suspension procedural costs
  • Whether the lawyer charges a fixed flat fee or retainer in advance, to be applied against hourly charges
  • Costs of expert witness fees, independent blood analysis, subpoena services, etc.
What is the punishment for drunk driving?

This varies according to the laws of the state and the customs of the local jurisdiction. In Wisconsin, a conviction for a first offense is a civil violation and involves a forfeiture, revocation, mandatory AODA Assessment and perhaps attendance at a Victim Impact Panel.

For a second offense, the penalties upon conviction range from a minimum mandatory penalty of five (5) days and up to six (6) months in jail. Punishments include a fine range from a minimum $350.00 to $1,100.00 plus costs and administrative surcharges as well as a mandatory AODA Assessment. Ignition interlock devices can also be ordered. The greater the number of prior convictions, the greater the jail and/or prison term that can be imposed.

In Wisconsin, for purposes of evaluating prior convictions, a ten-year window is used; however, this window will not extend before January 1, 1989 for second offenses. For purposes of evaluating prior convictions for a third or greater offense, the prosecution can go back throughout a lifetime.

If convicted of an OWI offense, in Wisconsin that conviction now remains on your driving record abstract for life.

What is a sentence enhancement?

Most states including Wisconsin increase the punishment in drunk driving cases if certain facts exist. The most common of these is an earlier conviction for the same or similar offense, usually within ten years for a second offense or lifetime for a third or greater offense. Other commonly encountered enhancements (which must usually be alleged in the complaint) include:

  • A child under the age of 16 was in the car at the time
  • The blood-alcohol concentration was over 20%.
  • The defendant refused to submit to a chemical test
  • There was property damage or bodily injury
What is a “rising BAC defense”?

It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of driving, not at the time of being tested. Since it takes between 30 minutes and 3 hours for alcohol to be absorbed into the system, an individual’s BAC may continue to rise for some time after he is stopped and arrested.

Commonly, it is an hour or more after the stop when the blood, breath, or urine test is given to the suspect. Assume that the result is .10%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .07%. In other words, the test shows a blood-alcohol concentration above the legal limit, when his actual BAC at the time of driving which is what must be proved was below the legal limit.

What is “mouth alcohol” or “residual mouth alcohol”?

“Mouth alcohol” refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes the breath from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. This is known as a “portion ratio.” Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than the lungs can have a significant impact.

Mouth alcohol can be caused in many ways. Belching, burping, hiccupping, or vomiting within 20 minutes before taking the test can bring vapor from the alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine’s reading way up (such products as Bianca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood from the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic “reflux” condition from gastric distress or hiatal hernia can cause elevated BAC readings.

What defenses are there in an OWI case?

Potential defenses in any given drunk driving case are almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:

 

  • Driving. Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of some accidents, there are no witnesses to his being the driver of the vehicle.
  • Probable cause. Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain, or (c) arrest the person being charged. Sobriety roadblocks present particularly complex issues.
  • Miranda. Incriminating statements may be suppressed if warnings were not given at the appropriate time.
  • Implied consent warnings. If the officer did not properly advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, in some states (including Wisconsin) this may invalidate a DMV license suspension based upon a refusal to provide a breath/blood sample.
  • “Under the influence.” The officer’s observations and opinions as to intoxication can be questioned. The circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as “failing” may be challenged. Also, witnesses can offer their opinion that you appeared to be sober.
  • Blood-alcohol concentration. There exists a wide range of potential problems with blood, breath, or urine testing. For example, a non-specific analysis: most breath machines will register many chemical compounds found on the human breath as alcohol. Breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and with a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state’s expert witnesses and/or the defense can hire its own forensic chemist.
  • Testing during the absorptive phase. The blood, breath, or urine tests can be unreliable if done while you are still actively absorbing alcohol (it takes 30 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking “one for the road” can cause inaccurate test results.
  • Retrograde extrapolation. This refers to the requirement that the BAC be “related back” in time from the test to the actual driving. Again, a number of complex physiological problems are involved here.
  • Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath, or urine test complied with state requirements as for calibration, maintenance, etc.
  • License suspension hearings. A number of issues can be raised in the context of an administrative hearing before the state’s department of motor vehicles.
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FROM THE STANGL LAW BLOG

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