Criminal Defense Areas of Practice

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CRIMINAL DEFENSE OPTIONS IN WISCONSIN

At our law office, located in Eau Claire, we are ready to fight for you. We pursue evidence and other materials to understand the strengths of the opposition. Once we have the big picture, we can formulate a powerful strategy to secure your available interests. You could receive a much smaller sentence than otherwise with our superb help.

COVERING EVERY KIND OF CRIME IN TOWN

Our decades of experience in this business have exposed us to every kind of legal difficulty. We’ve handled many different criminal charges. Our areas of specialty include all of the following and much, much more:

White-Collar Crime
Robbery
Reckless Homicide
Intentional Homicide
Murder
Internet Crimes
Felony Theft
Aggravated Battery
Burglary
OWI
Drug Charges
Sex Offense

FIGHT FOR YOUR FUTURE WITH OUR TEAM

You want the best verdict possible. We can help you get it.

Consult with our team at Cohen Law Offices for strong legal representation and counsel. Your opinion and story matter to us. With our help, you can be heard, loud and clear.

Contact us today to begin the defense process.

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MENTAL STATES

Almost all crimes have a mens rea, or mental state. The prosecutor has to prove that the accused has a criminal mental state before the person can be convicted. The reason for this rule is that identical conduct can be criminal or legal, depending on what the person is thinking. Some of the types of mens rea are discussed below.

CRIMINAL INTENT

When criminal intent is an element of a crime, such intent is indicated by the term "intentionally," the phrase "with intent to," the phrase "with intent that," or some form of the verbs "know" or "believe."

"Know" requires that the actor believes that the specified fact exists.

"Intentionally" means that the actor either has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result. In addition, the actor must have knowledge of those facts which are necessary to make his or her conduct criminal and which are set forth after the word "intentionally."

"With intent to" or "with intent that" means that the actor either has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result.

Criminal intent does not require proof of knowledge of the existence or constitutionality of the section under which the actor is prosecuted or the scope or meaning of the terms used in that section.

Criminal intent does not require proof of knowledge of the age of a minor even though age is a material element in the crime in question.

CRIMINAL RECKLESSNESS

"Criminal recklessness" means that the actor creates an unreasonable and substantial risk of death or great bodily harm to another human being and the actor is aware of that risk.

CRIMINAL NEGLIGENCE

"Criminal negligence" means ordinary negligence to a high degree, consisting of conduct that the actor should realize creates a substantial and unreasonable risk of death or great bodily harm to another.

SOLICITATION

Whoever, with intent that a felony be committed, advises another to commit that crime under circumstances that indicate unequivocally that he or she has the intent to do that act.

CONSPIRACY

Whoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime, if one or more of the parties to the conspiracy does an act to effect its object, is guilty of that same crime.

ATTEMPT

An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that the actor does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that the actor formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.

DEFENSES

A defense in a criminal case is a set of facts, which, if believed, mandate a finding of not guilty. A selection of defenses defined by Wisconsin statutes is below.

INTOXICATION

An intoxicated or a drugged condition of the actor is a defense only if such condition:

Is involuntarily produced and renders the actor incapable of distinguishing between right and wrong in regard to the alleged criminal act at the time the act is committed.
Negatives the existence of a state of mind essential to the crime.

MISTAKE

An honest error, whether of fact or of law other than criminal law, is a defense if it negatives the existence of a state of mind essential to the crime.

A mistake as to the age of a minor or as to the existence or constitutionality of the section under which the actor is prosecuted or the scope or meaning of the terms used in that section is not a defense.

ADEQUATE PROVOCATION

"Adequate" means sufficient to cause complete lack of self-control in an ordinarily constituted person.

"Provocation" means something which the defendant reasonably believes the intended victim has done which causes the defendant to lack self-control completely at the time of causing death.

PRIVILEGE

The fact that the actor's conduct is privileged, although otherwise criminal, is a defense to prosecution for any crime based on that conduct. The defense of privilege can be claimed under any of the following circumstances:

When the actor's conduct occurs under circumstances of coercion or necessity.
When the actor's conduct is in defense of persons or property.
When the actor's conduct is in good faith and is an apparently authorized and reasonable fulfillment of any duties of a public office.
When the actor's conduct is a reasonable accomplishment of a lawful arrest.
When the actor's conduct is reasonable discipline of a child by a person responsible for the child's welfare.
When for any other reason the actor's conduct is privileged by the statutory or common law of this state.

COERCION

A threat by a person other than the actor's coconspirator which causes the actor reasonably to believe that his or her act is the only means of preventing imminent death or great bodily harm to the actor or another and which causes him or her so to act is a defense to the crime.

NECESSITY

Pressure of natural physical forces which causes the actor reasonably to believe that his or her act is the only means of preventing imminent public disaster, or imminent death or great bodily harm to the actor or another and which causes him or her so to act, is a defense to a prosecution.

SELF-DEFENSE AND DEFENSE OF OTHERS

A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force, which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.

Provocation affects the privilege of self-defense as follows:

A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defense, but the person is not privileged to resort to the use of force intended or likely to cause death to the person's assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.
The privilege lost by provocation may be regained if the actor in good faith withdraws from the fight and gives adequate notice thereof to his or her assailant.
A person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant is not entitled to claim the privilege of self-defense.
The privilege of self-defense extends not only to the intentional infliction of harm upon a real or apparent wrongdoer, but also to the unintended infliction of harm upon a third person, except that if the unintended infliction of harm amounts to the crime of first-degree or second-degree reckless homicide, homicide by negligent handling of dangerous weapon, explosives or fire, first-degree or second-degree reckless injury or injury by negligent handling of dangerous weapon, explosives or fire, the actor is liable for whichever one of those crimes is committed.
A person is privileged to defend a third person from real or apparent unlawful interference by another under the same conditions and by the same means as those under and by which the person is privileged to defend himself or herself from real or apparent unlawful interference, provided that the person reasonably believes that the facts are such that the third person would be privileged to act in self-defense and that the person's intervention is necessary for the protection of the third person.
A person is privileged to use force against another if the person reasonably believes that to use such force is necessary to prevent such person from committing suicide, but this privilege does not extend to the intentional use of force intended or likely to cause death.

DEFENSE OF PROPERTY AND PROTECTION AGAINST RETAIL THEFT

A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with the person's property. Only such degree of force or threat thereof may intentionally be used, as the actor reasonably believes is necessary to prevent or terminate the interference. It is not reasonable to intentionally use force intended or likely to cause death or great bodily harm for the sole purpose of defense of one's property.
A person is privileged to defend a third person's property from real or apparent unlawful interference by another under the same conditions and by the same means as those under and by which the person is privileged to defend his or her own property from real or apparent unlawful interference, provided that the person reasonably believes that the facts are such as would give the third person the privilege to defend his or her own property, that his or her intervention is necessary for the protection of the third person's property, and that the third person whose property the person is protecting is a member of his or her immediate family or household or a person whose property the person has a legal duty to protect, or is a merchant and the actor is the merchant's employee or agent. An official or adult employee or agent of a library is privileged to defend the property of the library in the manner specified in this subsection.

SENTENCING

Felonies and misdemeanors involving habitual criminality are governed by truth in sentencing, which provides for bifurcated sentences. Regular misdemeanors are governed by more traditional penalty structures.

A Wisconsin sentence of imprisonment has two components: confinement (prison) and extended supervision (parole).

Imprisonment = Confinement + Extended Supervision (ES)

The minimum term of confinement is one year. The minimum term of ES is not less than 25 percent of the confinement. The minimum term of probation is one year for a felony, six months for a misdemeanor. Unclassified felonies and habitual criminality misdemeanors have a maximum confinement of 75 percent of the total length of the bifurcated sentence and a minimum ES of 25 percent of the confinement. The maximum term of probation may be increased by one year for each additional felony.

*Several statutes can increase the maximum term of misdemeanor probation by an extra one, two or even three years.

PROBATION-DEFERRED PROSECUTION

WHAT IS PROBATION?

Probation is an alternative to prison. It is usually offered to first (or second) offenders whose crimes are not of the most serious nature, and whom the court believes can benefit from rehabilitative services. These services might include treatment for alcoholism, domestic violence, sex offender issues, drug dependency, psychological issues, or anything else a person needs help with to become a law-abiding member of the community. Compliance with these services is required to remain on probation.

On probation, a person is assigned to an agent, who monitors the person's progress, checks up on them, and makes sure they comply with the terms of probation.

Probation may also have a punishment component, including either jail time or electronic monitoring.

A person on probation will be ordered to pay probation service fees as well as any restitution owed to the crime victims involved in the case. A probationer will be ordered to perform community service.

Probation isn't easy. A lot is required of the participant, and the agent is authorized to intrude significantly into your personal life. (He can show up unannounced and search your house without a warrant). However, it is also a way of avoiding prison. Good performance on probation can result in discharge. Poor performance can result in revocation, which will land a person behind bars.

WHAT IS DEFERRED PROSECUTION?

Deferred prosecution can be a pretty sweet deal, usually only offered to people accused of fairly minor offenses who have no prior criminal history. A person who successfully completes deferred prosecution will have his case dismissed, and therefore will continue to have no criminal history. It's not all a bed of roses, though. Deferred prosecution agreements require defendants to plead guilty and then do several time consuming and sometimes expensive requirements. If the person fails, they have already entered a guilty plea, and they are taken back to court to receive a sentence and a criminal record. Because you give up your right to trial, it is really important not to enter into a deferred prosecution agreement unless you are really guilty of the charges.

Some of the standard requirements for a deferred prosecution agreement are:

The agreement shall be in writing, signed by the district attorney or his or her designee, a representative of the department and the defendant.
The defendant admits, in writing, all of the elements of the crime charged.
The defendant participates in therapy or in community programs and to abide by any conditions imposed under the therapy or programs.
The defendant performs community service.
The defendant pays monthly fees to the State for administering the agreement, plus any fees for classes and counseling ordered.
The defendant refrains from using alcohol or drugs, if these were part of the offense, and may be subject to random testing.
Pay restitution (money to compensate a crime victim's loss).

POTENTIAL CONSEQUENCES OF A CRIMINAL CONVICTION

As you know, you have been charged with a crime. Here are some potential consequences to which you may be subjected if you receive a criminal conviction:

In addition to the potential for a term of incarceration, a period of supervision (“probation”), payment of supervision fees, fines, court costs and assessments to name a few, there exist a number of consequences that follow conviction of a criminal offense, regardless of whether the offense is classified a misdemeanor or a felony.

“f” (felony); “m” (misdemeanor)

f You may not possess a firearm. Wis. Stat. § 941.29; 18 U.S.C. § 922(g)(1).

f/m You may not possess a firearm if the offense of conviction is a crime of domestic violence. This prohibition applies even if you have not been convicted of a felony offense. 18 U.S.C. § 922(g)(9).

f/m This prohibition applies to all handguns, starter pistols, shotguns, hunting rifles and ammunition. This prohibition includes both actual or constructive possession of a firearm; that is, you may not hold in your hand, store, borrow, or in any manner use or exercise control over the firearm of another. Having a firearm in your home, even if it belongs to a parent, spouse or child who also resides there, could be construed as possession of a firearm. You may, however, still fish and possess and hunt with a bow, unless a judicial order provides otherwise.

f/m Relatedly, you may not possess a firearm if you are a fugitive from justice, addicted to any controlled substance, committed to a mental institution, an illegal alien, discharged from the armed services under dishonorable conditions or subject to a restraining order. 18 U.S.C. § 922(g)(1) – (8).

f/m You may not obtain state issued licenses for hunting, fishing, etc., for up to 5 years if you have been convicted of violating certain hunting regulations. Wis. Stat. § 29.971.

f You may not possess bulletproof body armor. Wis. Stat. § 941.291.

f You may not hold elective office. Wis. Const. Art. 13, § 3(2).

f You may not vote until your civil rights have been restored. Wis. Stat. § 6.03(1)(b).

f You may not serve on a jury until your civil rights have been restored. Wis. Stat. § 756.02.

f/m At sentencing, a court may prohibit you from having contact with co-actors involved in the offense conduct during the period of probation. Wis. Stat. § 973.049.

f/m You may be deported, excluded or denied entry into the United States based upon a criminal conviction, if you are not a citizen of the United States (i.e., a resident alien, green card holder, here on any visa). 8 U.S.C. § 1227.

f/m You may not receive federal student financial aid (for a set period of time) if you are convicted of a drug offense; the length of time varies, depending upon the offense of conviction. 20 U.S.C. § 1091(r).

f/m You may not obtain certain federal health, welfare and housing benefits if you are convicted of a drug offense. 42 U.S. C. § 1320.

f/m You may not operate a motor vehicle for at least six months if you are convicted of a drug offense. Wis. Stat. § 961.50.

f/m You may not operate a motor vehicle for at least six months if you are convicted of drunk driving. Wis. Stat. § 343.30. Second or subsequent convictions for drunk driving will result in a longer period during which you may not operate a motor vehicle. In some cases an ignition interlock device may have to be installed before you may operate a motor vehicle again. Wis. Stat. § 343.301.

f You may be required to provide a DNA sample which will then be posted to a database maintained by the state crime laboratory. There is a $250 fee for this analysis. Certain misdemeanor offenses also qualify for this requirement.

f/m You may be required to register with law enforcement as a sex offender if you are convicted of certain sex offenses, even if the conviction was entered in another state. Wis. Stat. § 973.048 and 301.45. The period of registration may last for no less than 15 years. In some cases, depending on the offense of conviction, you could be subject to lifetime registration. The registration requirement applies as well to an adjudication of juvenile delinquency. The registration requirement exists as well under federal law. 42 U.S.C. § 16901-16962. The failure to register or to update your registration is a crime. Wis. Stat. § 301.45(6); 18 U.S.C. § 2250. Please note that under federal law, the sex offender registration requirement is on-going and relates to current convictions as well as those that have previously been adjudicated (after 1993).

f/m Related to sex offender registration, please also consider that information regarding sex offender registration is available to the public over the internet. Also, some municipalities have enacted ordinances limiting a registered sex offender’s ability to reside in that municipality; some ordinances enact distance restrictions (i.e., shall live no closer than 1,000 feet from a school or park), while others forbid registered sex offenders from residing in that municipality.

f/m Conviction of certain “sexually violent offenses” may subject you to civil commitment during which time you will be placed into the custody of the Department of Health and Family for purposes of treatment. Such period of custody and treatment continues until it is determined that there has been “significant progress in treatment”.

f/m You may not work with children if you are convicted of a serious child sex offense. Wis. Stat. § 948.13.

f/m You may not intentionally photograph minors if you are a registered sex offender. Wis. Stat. § 948.14.

f/m If your employment requires a professional license or bond, your conviction may have consequences in this regard as well. This is particularly true if you are employed in health care, child care and education. In those professions requiring a license, to sell real estate, stocks, or to be a barber, for example, a felony conviction may be a bar to obtaining the necessary license. Wis. Stat. § 440.03(13)

f/m If you are an over-the-road truck driver, a conviction under certain felony offenses, including offenses of dishonesty or fraud, will disqualify you from hauling materials such as fuel oil and you will be barred from entering refineries under rules promulgated by the Department of Homeland Security. 49 CFR § 1572.103(b)(14).

f/m If you are employed as a “care giver” to adults or children – including, but not limited to, working in daycare centers, hospitals, and nursing homes, a criminal conviction may act as a bar to such employment for up to five years. Wis. Stat. §§ 48.685 and 50.065.

f/m If you are employed in health care, a criminal conviction may result in your being disbarred from obtaining any federal funds, even if your position is not funded through federal grants or programs. 42 C.F.R. § 424.535. The Center for Medicine and Medicaid services is authorized to revoke a currently enrolled provider or supplier’s Medicare billing privilege based on a felony conviction within the 10 years proceeding enrollment or revalidation of enrollment. This applies to convictions under state or federal law that are considered felony offenses and which “CMS has determined to be detrimental to the best interest of the program and its beneficiaries”. Such offenses include felony crimes against persons, such as murder, rape, assault, financial crimes such as extortion, embezzlement, income tax evasion, insurance fraud and other similar crimes for which the individual was convicted including guilty pleas. Importantly adjudicated pretrial diversions are not excluded. Further, any felony that places the Medicare program or its beneficiaries at immediate risk such as in malpractice actions that result in a conviction of criminal neglect or misconduct; and any felony that would result in mandatory exclusion under § 1128(a) of the act.

f/m You may find that a criminal conviction and even some non-criminal adjudications such as for drunk driving (first offense) will act as a bar to the entry of some foreign countries, such as Canada, Australia and Japan, for example.

f/m If you move to another state, your record moves with you; but each state’s consequences differ. For example, some states impose a lifetime ban on voting for persons who have been convicted of a felony. Additionally, it is possible for the legislature to impose new collateral consequences after you have been convicted.

DRUNK DRIVING DEFENSE LAWYER IN CHIPPEWA FALLS, WISCONSIN

When you get pulled over for drunken driving, you might feel that it’s the end of the world. You’ve been caught; what can you possibly do? Fortunately, there are still a lot of legal options available to you, especially for first-time offenders. Consult with Cohen Law Offices to determine the best course to take for this situation. We can navigate judicial complexities and give you better results.

GET OUR HELP

You’ll want powerful legal representation as soon as possible. A lawyer can help you dodge legal landmines. Hire our firm and we’ll do our part to improve your situation. We can give you advice for what to do next.

LEGAL DEFENSE FOR YOUR CIRCUMSTANCE

If you have been charged with an OWI — Operating While Intoxicated — the state is already trying to suspend your license. You have a short time frame to challenge the suspension. Work with us to take back your ability to drive. We can fight for you in any legal setting. We’ve won cases and gotten people back in control of their circumstances.

NEXT STEPS FOR YOUR LEGAL JOURNEY

We’ve helped numerous individuals navigate their legal journey. Mistakes happen, and your life doesn’t have to be ruined for it. Instead of settling for a dead end, consult with Cohen Law Offices for powerful counsel. We can guide you through this complex affair. Contact us today to work on overcoming your OWI charge.

Fight Your Charge Now

ARRESTED FOR DRUNK DRIVING – NOW WHAT?

Don't Panic: Stay calm. You have some important decisions to make.
Establish the Facts: Write down the events leading up to your arrest as soon as possible – where you were, who was there, how many drinks you had, prescription medications you take, and anything else that may have contributed to getting you pulled over. Also try to recall anything you can about the arrest itself.
Don't Talk: Keep this information to yourself. Anything you say can end up as evidence against you if your case goes to trial.
Consult With an Attorney ASAP: Don't wait.
Be Prepared to Pay: It's not all profit for the attorney: some typical costs in a drunk driving defense case include ordering discovery (police reports, DOT records, court transcripts and copies), subpoena service and witness fees, court fees and hiring an investigator or expert if necessary.
Gather Documents: You will start to receive important items in the mail: your ticket(s), test results, letters from the DOT about your driving privileges, and other paperwork. Start a file and keep all these documents together for your attorney.

If you have been charged with OWI, the state is already in the process of suspending your license. Should you fail to challenge the administrative suspension within the required time period, the suspension will become effective for six months. Cohen Law Offices can fight your driver's license suspension.

OWI and DUI defense lawyer Michael Cohen understand Wisconsin's drunk driving law and know how to fight OWI charges. We have obtained dismissals and not-guilty verdicts in numerous OWI cases. If you have refused a breath test, their work as OWI defense attorneys is that much more important. Attorney Cohen have won cases where their clients refused the breathalyzer test.

WHAT TO DO WHEN YOU ARE PULLED OVER

DO NOT ANSWER ANY QUESTIONS REGARDING YOUR ALCOHOL CONSUMPTION

Do not panic! Be patient and stay calm. You have some important decisions to start making. First, do not talk. Like most good people, you will want to be honest and cooperative with the police officer. I strongly urge you, however, to politely decline to answer any questions related to what you had to drink, when you were drinking, etc. You may have a defense based on your drinking history, but you could lose that defense if you accidentally give the officer an incorrect drinking history. Besides, you have the right to remain silent.

Write down the events that you can remember leading up to and including your arrest as soon as possible. Write down things such as where you were, who you were with or who was present, what you ate and drank and when, any medications that you were on, and anything else that may be important to remember later.

Also, you will start to receive important documents in the mail. Collect and save them all. Get them to your attorney. On this note, do not wait to get an attorney who is qualified and experienced, such as Mr. Cohen at Cohen Law Offices.

THE FIELD SOBRIETY TESTS

Whether you take the field sobriety test is up to you. But consider that not doing the field sobriety tests is often misconstrued by judges and juries as evidence of guilt. Also, whether you cooperate with the police may be taken into consideration during plea negotiations and sentencing.

DON'T BE PRESSURED INTO PLEADING GUILTY TO AN OWI CHARGE!

The penalties are too severe. A drunk-driving conviction can affect your driving privileges, your insurance rates and your freedom. If you win your case, you not only clear your record, but you won't have to pay fines, attend alcohol classes or pay high-risk car insurance. An arrest for drunk driving has serious consequences. Without a strong defense strategy, you could lose money, your privilege to drive and your freedom. Attorney Michael Cohen is experienced trial lawyer who aggressively defend people accused of drunk driving and other related traffic violations. They will work zealously to defend your rights and preserve your freedom.

YOU FACE TWO LEGAL CHALLENGES

An arrest for drunk driving in Wisconsin leads to two legal proceedings — a criminal proceeding and an administrative proceeding that could result in the suspension of your privilege to drive. Attorney Michael Cohen will represent you effectively in both actions.

It is important to act quickly to obtain legal representation after an OWI/DWI arrest. If you took a test and the result was over the legal limit, then you must request an administrative hearing within 10 days. If you refused to take a test, then you must request a hearing within 10 days. Failure to request a hearing may result in your losing your privilege to drive in Wisconsin.

AGGRESSIVELY DEFENDING YOUR RIGHTS

Michael Cohen will zealously defend against criminal drunk driving charges. They carefully examine every aspect of your case, looking for a potentially successful defense strategy to suppress evidence, collaterally attack prior convictions and, when necessary, to effectively try the case to a jury.

Our attorneys will explain the issues in your case and recommend appropriate courses of action. If possible, they will seek to obtain a dismissal of the charge or reduction to a non-alcohol traffic offense. If you decide to fight the charge, they will take care of you and zealously defend you before, during, and after trial.

Whether you call it OWI, DWI or DUI, your future is at risk. Our legal team will work with you to protect your freedom and your privilege to drive.

OWI – THE BASIC DEFENSE

Operating While Intoxicated, whether it’s your first or seventh, involves the same core set of elements.

First, the prosecutor has to prove you drove or operated a motor vehicle on a highway or a “premises held out to the public for motor vehicle usage.” Second, they have to prove you were “under the influence” of alcohol or another drug, or had a prohibited blood alcohol concentration in excess of a legal limit.

WHAT DOES “OPERATE” MEAN?

Plain English. You can be arrested and successfully prosecuted in Wisconsin for “operating” while impaired for sure if your engine is running, even if the car is in park and you are asleep trying to sober up. You will also be in trouble, most likely, if you do any of the things you would normally do to start a vehicle, such as put the keys in the ignition, turn on the electrical, take the car out of park, maybe even turn on the headlights. Even if it is not your intent, these are all parts of what you do to start up a vehicle to prepare it for motion.

WHAT IS A “MOTOR VEHICLE”?

Any self-propelled device by which a person may be transported on a highway. Snowmobiles and boats have their own statutes.

WHAT COUNTS AS A “HIGHWAY”?

Any “official” roadway in the state that you might drive on would count as a highway. Also counting are “premises held out to the public for motor vehicle usage,” which includes things like business parking lots, parking lots at work, and parking lots at an apartment complex, unless there are four or fewer units. Driveways or single-family farms are not included.

WHAT DOES “UNDER THE INFLUENCE” MEAN?

Under the Influence means impaired by alcohol or other intoxicant or controlled substance. Just impaired. Buzzed driving is drunk driving. If your case involves a combination of alcohol and drugs, or a combination of different drugs, under the influence means any impairment by intoxicating chemicals that prevents a person from driving safely.

Under the Influence includes being influenced by alcohol, any other intoxicant, a controlled substance or its “analog,” or any combination of these.

BLOOD ALCOHOL LEVEL

Your BAC is determined by testing your blood, breath or urine.

Breath testing is most common, because police don’t have to send in a sample to get results. These machines can only detect alcohol.

Blood testing may only be done according to approved methods established by the Wisconsin Hygiene Lab.

Urine testing is used less often. It is the least accurate of the three.

HOW ARE THE RESULTS OF MY BREATH OR BLOOD TEST USED AT COURT?

The law says that the results of a breath or blood test are presumed to be accurate and are admissible at trial against you. In other words, the jury is going to hear the result. All you can do is try to convince them it is inaccurate. You cannot get the judge to prevent them from hearing it in the first place.

There are exceptions. If there are independent reasons for keeping the results away from the jury, the judge can do that. If a chemical test is done within three hours, the results are admissible at trial to prove you were intoxicated without an expert to establish that the given level would really make a person like you intoxicated.

IMPLIED CONSENT

Implied consent is a legal rule which allows the police to obtain a chemical test from you to see if you have been drinking or using drugs to the point of being intoxicated while driving. If you are unconscious, the law says you consent to have your blood drawn.

DO I HAVE TO LET THEM TEST MY BLOOD ALCOHOL LEVEL?

Yes. If you drive on the roads in Wisconsin or have a Wisconsin driver’s license, you are deemed by law to have consented to providing a breath, blood or urine test under certain circumstances. This is called Wisconsin’s Implied Consent Law. Refusal to give a sample when asked is a separate offense, which then counts as a prior conviction.

CAN I GET A SECOND ALCOHOL TEST?

Yes, blood alcohol tests fall into three categories.

There is the primary test, the one law enforcement chooses. For the primary test, the officer can ask you to perform “one or more tests.”

The alternative test is one the police have to provide you at their expense if you request it. Before you are entitled to it, you have to submit to the primary test(s).

Finally, the additional test is another test you may request at your own expense. It is up to you to choose which type of test to get, and where to get it. This opportunity must be provided to you within three hours of your arrest if you request it. To comply with this time limit, police only have to process you and release you.

You only have a right to either an alternative or additional test, not both. If the police fail to comply with your right to a second test, suppression of the primary test results is the remedy.

DO I HAVE A RIGHT TO AN ATTORNEY BEFORE I SUBMIT TO A TEST?

You do not have a right to speak to an attorney before you decide whether to submit to a chemical test of your breath or blood. If you insist on waiting until you speak to an attorney that will count as a refusal.

WHAT HAPPENS IF I REFUSE THE TEST?

If you refuse the test for blood or breath alcohol, the officer will take your license and issue you a notice of intent to revoke your license, which becomes your license for 30 days. As long as you request it within 10 days, you have a right to a hearing before the circuit court to test whether the revocation is valid. You can be prosecuted for refusal as well as the underlying OWI offense you may also be charged with. One defense is if you have a physical disability or disease that prevents you from cooperating.

If the court finds you did in fact refuse, your license will be revoked for at least one year, or more if you have prior OWI convictions. If you have enough priors, you may also be required to install an ignition interlock device on your car.

DEFENSES

Many people are under the false impression that OWI cases are impossible to defend, that if you are over the legal limit, you are guilty and there’s nothing to fight about. Cases can be attacked from a number of different angles.

SUPPRESSION OF THE EVIDENCE

Police offers have to have a reasonable suspicion to stop you and probable cause to arrest you. If the officer pulls you over for an invalid reason, or gives you a PBT without establishing probable cause to believe you are OWI, or does any number of other things wrong before gathering evidence against you, he may be violating your rights. All procedures in an OWI case must be followed, and if they are not, the evidence against you is subject to possible suppression. There are dozens of ways that the police can make mistakes that result in suppression. Suppressed evidence means the prosecutor cannot use it against you.

CHALLENGING “UNDER THE INFLUENCE”

The law defines “under the influence” as being “incapable of safe driving,” and the usual jury instruction defines it as “less able to exercise the clear judgment and steady hand necessary to handle and control a motor vehicle.” It is quite possible that a person can feel the effect of alcohol and still be capable of safe driving and able to exercise clear judgment. A defense to an under the influence charge can be built around any evidence of good driving. This type of defense is only useful in the absence of a blood alcohol reading over the legal limit. If you are over the limit, you are presumed to be under the influence.

MOTIONS TO DISMISS

A criminal OWI case, like any criminal case, starts with a complaint. A complaint must be sufficient in that it must allege probable cause to believe a crime has been committed. If it does not, it can be dismissed.

CHALLENGES TO PRIOR CONVICTIONS

If you have prior convictions and did not have an attorney for them, you may challenge their validity for use as a prior in your current case.

CHALLENGES TO THE “MACHINE” AND THE “SCIENCE”

The Intoximeter – the machine the police have you blow in at the station – is just that: a machine. The Intoximeter is a machine that, in order to work properly, has to trap the deepest part of your lung exhale, and then blow that air over a tiny little disk that supposedly throws off two electrons for every molecule of alcohol in your breath. Meanwhile, hydrogen is also given off, and that forms into water with the air in the test tube, which creates a tiny electrical current between the water and the extra electrons. That current is measured and converted into your breath alcohol reading. The results, therefore, are subject to all sorts of challenges. Another challenge is to other sources of alcohol in your breath. For the machine to be accurate, it needs deep lung air, but that air passes through the upper lungs, mucous membranes and saliva on its way out, all of which can expel excess alcohol that contaminate the sample. It only takes a tiny 1.04 millionth of an ounce of alcohol in an Intoximeter sample to produce a 0.08.

Similarly, blood evidence must be scientifically evaluated. There are issues about whether alcohol develops after the draw, and whether the crime lab mixed your sample up with someone else’s. There are also issues with the gas chromatograph (a machine that, basically, vaporizes your blood, then shines a light through it to see how many alcohol molecules there are). Urine is also subject to challenge, primarily in that it is mainly a sample of what your BAC used to be.

CHALLENGES TO THE FIELD SOBRIETY TESTS

The field sobriety tests are the evidence the officer uses to establish probable cause to arrest you, and also provide evidence at trial that you were too impaired to drive. These tests have to be given by the officer precisely according to the instructions; even then, they are only accurate a relatively small percentage of the time in showing a person is overthe limit.

THE CURVE DEFENSE

The law is you can’t be over the limit at the time of driving. If you took a drink right before you drove and were stopped shortly thereafter, that last drink wasn’t in your system when you were driving, but would have absorbed by the time of the test. That means the reading on the machine is higher than what your BAC really was at the time of driving.

PUNISHMENT

The chart below captures the basic sentencing scheme for OWI law, but keep in mind that penalties change often, and there are often other consequences than those listed here.

For all violations after 12-1-18 for OWI 4th and higher and other serious OWI offenses, upon conviction the person will lose their drivers license for life with no occupational for a min of 10 yrs.

For any OWI 4th offense and subsequent, including if that 4th or higher offense is Homicide by Intoxicated Use of Motor Vehicle or Injury by Intoxicated Use of Motor Vehicle, the Department of Transportation will revoke the individual’s driving privileges permanently. This provision is only triggered where the 4th offense or higher offense occurs within 15 years of the previous offense.

During the period of lifetime revocation, the individual will not be eligible for an occupational license at any time. After 10 years of the revocation period has elapsed, if there are no violations for Operating after Revocation during that time, the individual may apply for reinstatement of driving privileges. Violations for driving without a license during the period of lifetime revocation resets the 10 year period for reinstatement application.

Conviction	Fine or Forfeiture	Confinement Sentence	Driving Consequences if Commited in Wisconsin	Consequences if Minor under 16 in Vehicle	Consequences if Committed in Another Jurisdiction	Occupational License
OWI, First Offense	$150 - $300 (plus $365 OWI surcharge)	No	Revocation: 6 - 9 month If AC is 0.15 or more: Vehicle equipped with IID for 1 year	Fine: $350 - $1100 Jail: 5 days to 6 months 12 - 18 months + confinement length	Revocation: 6 months	Can apply immdediately If IID is ordered: 0.02 PAC limit
OWI, Second Offense No prior OWI within 10 years nor Great Bodily Harm or Homicide by Intoxication Use offenses during offender's life.	$150 - $300 (plus $365 OWI surcharge)	No	Revocation: 6 - 9 month If AC is 0.15 or more: Vehicle equipped with IID for 1 year	Fine : $350 - $1100 Jail: 5 days to 6 months Rev./IID Max. Length: 12 - 18 months + confinement length	Revocation: 6 months	Can apply immediately Absolute Sobriety Required
OWI, Second Offense Prior OWI within 10 years or Great Bodily Harm or Homicide by Intoxicated Use offense during offender's life.	$350 - $1,100 (plus $365 OWI surchage)	5 days - 6 months	Revocation: 12 - 18 month + confinement length Vehicle equipped with IID for 1 year to 18 months confinement length	Fine: $700 - 2,200 Jail: 10 days - 12 months Rev./IID Max. Length: 2 - 3 years + confinement length	Revocation: 1 year	Can apply after 45 days Absolute Sobriety Required
OWI, Third Offense	$600 - $2,000 (Excessive BAC Escalator) (plus $365 OWI surcharge)	45 days - 1 year	Revocation: 2 - 3 year + confinement length Vehicle equipped with IID for 1 year to 3 years +	Fine: $1,200 - 4,000 Jail: 90 days - 2 years Rev./IID Max. Length: 4 - 6 years + confinement length	Revocation: 1 year	Can apply after 45 days Absolute Sobriety Required
OWI, Fourth Offense including 1 or more within previous 5 years	$600 - 10,000 (Excessive BAC Escalator) (plus $365 OWI surcharge)	Class H Felony 60 Days - 6 years	Revocation: 2 - 3 year + confinement length Vehicle equipped with IID for 1 year to 3 years + confinement length	Fine: $1,200 - 20,000 Jail: 1 year - 12 years Rev./IID Max. Length: 4 - 6 years + confinement length	Revocation: 1 year	Can apply after 45 days Absolute Sobriety Required
OWI, Fifth or Sixth Offense	$600 - 10,000 (Excessive BAC Escalator) (plus $365 OWI surchage)	Class H Felony 6 months - 6 years	Revocation: 2 - 3 year + confinement length Vehicle Equipped with IID for 1 year to 3 years + confinement length	Fine: $1,200 - 20,000 Jail: 1 year - 12 years Rev./IID Max. Length: 4 - 6 years + confinement length	Revocation: 1 year	Can apply after 45 days Absolute Sobriety Required
OWI, Seventh, Eighth, or Ninth Offense	Up to $25,000 (plus $365 OWI surchage)	Class G Felony 3 - 10 years	Revocation: 2 - 3 years + confinement length Vehicle equipped with IID for 1 year to 3 years + confinement length	Fine: Up to $50,000 Jail: 6 - 20 years Rev./IID Max. Length 4 - 6 years + confinement length	Revocation: 1 year	Can apply after 45 days Absolute Sobriety Required
OWI, Tenth or Greater Offense	Up to $25,000 (plus $365 OWI surcharge)	Class F Felony 4 - 12.5 years	Revocation: 2 - 3 years + confinement length Vehicle equipped with IID for 1 year to 3 years + confinement length	Fine: Up to $50,000 Jail: 8 - 25 years Rev./IID Max. Length: 4 - 6 years + confinement length	Revocation: 1 year	Can apply after 45 days Absolute Sobriety Required
Causing Injury Whil OWI with no prior OWI offense or chem test refusal	$300 - 2,000 (plus $365 OWI surchage)	30 days - 1 year	Revocation: 1 - 2 years + confinement length If AC of 0.15 or higher: Vehicle equipped with IID for 1 year to 2 years + confinement length	FFine: $600 - 4,000 Jail: 60 days - 2 years Rev./IID Max. Length: 2 - 4 years + confinement length	Revocation: 1 year	Can apply after 60 days If IID is ordered: 0.02 PAC limit
Causing Injury while OWI offense or chem test refusal	Up to $10,000 (plus $365 OWI surchage)	Class H Felony Up to 6 years	Revocation: 1 - 2 years + confinement length If AC of 0.15 or higher: Vehicle equipped with IID for 1 year to 2 years + confinement length	Fine: $20,000 Jail: Up to 12 years Rev./IID Max. Length: 2 - 4 years + confinement length	Revocation: 1 - 2 years	Can apply after 60 days except if 2 or more offenses within 5 years: Can apply after 1 year Absolute Sobriety Required
Causing Great Bodily Harm by OWI	Up to $25,000 (plus $365 OWI surcharge)	Class F Felony Up to 12.5 years	Revocation: 2 years + confinement length If AC is 0.15 or more, or not first offense: Vehicle equipped with IID for 1 year to 2 year + confinement length	Rev./IID Max. Length: 4 years + confinement length *If unborn child is in vehicle: Rev./IID Max. Length: 4 years + confinement length	Revocation: 2 years	Can apply after 120 days except if 2 or more offenses within 5 years: Can apply after 1 year AND Absolute Sobriety Required
Homicide While OWI	Up to $100,000 (plus $365 OWI surcharge)	class D Felony up to 25 years If one or more prior OWI-related offense: Class C Felony, up to 40 years	Revocation: 5 years + confinement length If AC is 0.15 or more, or not first offense: Vehicle equipped with IID for 1 year to 2 years + confinement length	Rev./IID Max. Length: 10 years + confinemnt length * If unborn child is in vehicle: Rev./IID Max. Length: 10 years _ confinement length	Revocation: 5 year	Can apply after 120 days except if 2 or more offenses within 5 years: Can apply after 1 year AND Absolute Sobriety Required
Chemical Test Refusal (First Offense) [343.305]	None	None	Revocation: 1 year * Vehicle Equipped with ID for 1 year	Rev./IID Max. Length: 2 years	None	Can apply after 30 days
Chemical Test Refusal (Second Offense) No prior OWI within 10 years nor Great Bodily Harm or Homicide by Intoxicated Use offenses during offender's life. [343.305(9)]	None	None	Revocation: 1 year Vehicle equipped with IID for 1 year	Rev./IID Max. Length: 2 years	None	Can apply after 30 days Absolute Sobriety Required
Chemical Test Refusal (Second Offense) Prior OWI within 10 years or Great Bodily Harm or Homicide by Intoxicated Use offenses during offender's life. [343.305(9)]	None	None	Revocation: 2 year Vehicle equipped with IID for 1 year to 2 years + confinement length	Rev./IID Max. Length: 4 years	None	Can apply after 90 days, except if 2 or more offenses within 5 years Can apply after 1 year Absolute Sobriety Required
Chemical Test Refusal (Third or Greater Offense) [343.305(9)]	None	None	Revocation: 3 years Vehicle equipped with IID for 1 year to 3 years + confinement length	Rev./IID Max. Length: 6 years	None	Can apply after 120 days except if 2 or more offenses within 5 years Can apply after 1 year Absolute Sobriety Required
Administrative Suspension for Prohibited Alcohol Concentration [343.305(7)]	None	None	6 month suspension [343.304(7)(a)]	N/A	N/A	Can apply immediately [343.305(8)(d)]

NEW LEGISLATION AFFECTING OWI LAWS

2015 Wisconsin Act 183 passed as Senate Bill 29 on February 29, 2016. This Act allows for a search warrant to be issued to obtain a blood sample for a civil violation of operating while intoxicated. This law went into effect on March 2, 2016. This means that if a person refuses a chemical test upon an arrest for an OWI 1st, law enforcement can contact the prosecuting agency and seek a search warrant to forcibly obtain a blood sample.

2015 Wisconsin Act 371 passed as Senate Bill 455 on April 25, 2016. This Act goes into effect on January 1, 2017. This Act increases the maximum confinement terms for most felony level OWI offenses. The following chart shows the current penalty and the new penalty:

OWI	Current Penalty	New Penalty
5th	Class H, 6 mos., 6 years max	Class G, 6 mos., 10 years max
6th	Class H, 6 mos., 6 years max	Class G, 6mos., 10 years max
7th	Class G, 3 years IC, 10 yrs max	Class F, 3 years IC, 12.5 years max
8th	Class G, 3 years IC, 10 yrs max	Class F, 3 years IC, 12.5 years max
9th	Class G, 3 years IC, 10 yrs max	Class F, 3 years IC, 12.5 years max
10th	Class F, 4 years IC, 12.5 yrs max	Class E, 4 years IC, 15 years max