If you have been arrested for drunk driving in Wisconsin, it will be important for you to quickly familiarize yourself with Wisconsin’s drunk driving laws. Drunk driving convictions can have serious consequences; and, while you might have options for avoiding a conviction, leveraging these options requires a clear understanding of the law and how it applies to your specific circumstances.

Of course, you should also hire a drunk driving lawyer to represent you—and your lawyer will be able to explain everything you need to know. But, learning the basics before your free initial consultation will help ensure that you can work with your lawyer as effectively as possible.

What You Need to Know About Wisconsin’s Drunk Driving Laws

So, what do you need to know about Wisconsin’s drunk driving laws? Here are some of the basics:

OWI and PAC: Wisconsin’s Drunk Driving Offenses

While most states use the term driving under the influence (DUI), Wisconsin does not. Instead, Wisconsin’s drunk driving laws establish two different offenses: operating while intoxicated (OWI) and driving with a prohibited alcohol concentration (or PAC). Under Section 346.63(1) of the Wisconsin Statutes:

• Operating While Intoxicated (OWI) – “No person may drive or operate a motor vehicle while . . .[u]nder the influence of an intoxicant . . . to a degree which renders him or her incapable of safely driving.”
• Driving with a Prohibited Alcohol Concentration (PAC) – “No person may drive or operate a motor vehicle while . . . [t]he person has a prohibited alcohol concentration.” A “prohibited alcohol concentration” is 0.08 percent in most cases, though it is possible to face a PAC charge with a blood alcohol concentration (BAC) of just 0.02 percent in certain circumstances.

As you can see, under Wisconsin’s OWI statute, prosecutors do not need evidence of your BAC to secure a conviction. This means that you can be convicted of OWI even if you refuse the breath test or are unable to register a BAC reading. Generally speaking, OWI and PAC charges carry the same penalties under Wisconsin law, though having a significantly elevated BAC (0.15 percent or above) can enhance the penalties that are on the table in a PAC case.

Wisconsin’s Implied Consent Law

Another factor that can enhance the penalties you are facing is a violation of Wisconsin’s implied consent law. In fact, if you violate Wisconsin’s implied consent law, you can face penalties regardless of whether you are guilty of OWI or PAC. Wisconsin’s implied consent law states:

“Any person who . . . operates a motor vehicle upon the public highways of [Wisconsin]. . . is deemed to have given consent to one or more tests of his or her breath, blood or urine, for the purpose of determining the presence or quantity in his or her blood or breath, of alcohol . . . .”

Basically, if you drive on Wisconsin’s public roads, you give your implied consent to a BAC test if the police pull you over on suspicion of drunk driving. If you revise to take a BAC test, you can be charged with an implied consent violation, which can carry penalties including:

• A 12-month driver’s license suspension
• Mandatory ignition interlock device (IID) installation
• Mandatory alcohol assessment and treatment

But, while Wisconsin drivers need to comply with the state’s implied consent law, the police need to comply with the law as well. If the police did not fully comply with the law during your drunk driving stop, this could provide a defense in your case.

Wisconsin’s Drunk Driving Penalties

Regardless of whether you are facing an OWI charge or a PAC charge, you are facing steep penalties under Wisconsin’s drunk driving laws. Depending on the circumstances of your case, if convicted, you could face penalties including:

• Fines
• Surcharges
• Driver’s license suspension
• Mandatory IID installation or 24/7 sobriety program
• Jail time

Various factors can increase the penalties for OWI and PAC charges in Wisconsin as well. For example, if you caused an accident or had a minor under age 16 in your vehicle at the time of your arrest, this could increase the risks of your drunk driving case significantly.

Wisconsin’s Ignition Interlock Law

As discussed above, mandatory IID installation is a potential penalty for both implied consent violations and OWI/PAC charges. Under Wisconsin law, mandatory IID installation is required in some cases. Specifically, the judge must order mandatory IID installation if either: (i) your BAC was 0.15 percent or above; (ii) you have a qualifying prior drunk driving conviction; or, (iii) you refused to provide a BAC sample during your traffic stop.

Plea Bargaining in Wisconsin Drunk Driving Cases

While some states prohibit plea bargaining in drunk driving cases, Wisconsin does not. If you are facing an OWI or PAC charge and do not have a strong defense available (and do not qualify for diversion), then negotiating a plea bargain could be the best option for minimizing the consequences of your arrest. Before you seek a plea bargain, however, there are several important factors to consider, and you will want to ensure that you are making an informed decision based on the advice of an experienced drunk-driving lawyer.

Schedule a Free Consultation with a Drunk Driving Lawyer in Madison, WI

Do you need to know more about Wisconsin’s drunk driving laws? If so, we encourage you to contact us promptly. To schedule a free consultation with a drunk driving lawyer at Mays Law Office in Madison, please call 608-305-4518 or tell us how we can help online today.

If you are facing an OWI charge in Wisconsin, you are probably wondering what you can do to get your charge dismissed. Maybe you made a mistake, or maybe you didn’t, but regardless you want to know what you can do to get out of going to court and move on with your life.

So, how do you get an OWI dismissed in Wisconsin?

We need to start with a point of clarification: While it is possible to get an OWI charge dismissed before trial in some cases, there are no guarantees. Regardless of the facts of your case, a conviction is a very real possibility. It is up to you to fight your OWI charge; and, to learn about the options you have available in your case, you will need to speak with an experienced Madison OWI lawyer as soon as possible.

2 Options for Getting an OWI Dismissed in Wisconsin

While the options you have available depend on the unique circumstances of your case, there are generally three options for seeking dismissal of an OWI charge in Wisconsin. To be clear, we are talking about seeking dismissal before trial. Fighting your OWI charge at trial is always an option, and there are several defenses an experienced Madison OWI lawyer may be able to assert on your behalf in court.

With this in mind, the options for getting an OWI charge dismissed before trial in Wisconsin include:

Option #1: Keep the Prosecution’s Evidence Out of Court

One option is to keep the prosecution’s evidence out of court. If prosecutors cannot use their evidence against you, they won’t be able to meet their burden of proof—and you should not have to stand trial.

Keeping the prosecution’s evidence out of court involves proving that the police or prosecutors violated your constitutional rights. If the police violated your constitutional rights, any evidence that they obtained in violation of your rights can be deemed inadmissible in court. If prosecutors violated your rights, their violation may have made it impossible for you to receive a fair, speedy, and impartial trial.

Some examples of potential constitutional violations in OWI cases include:

• The police pulled you over without reasonable suspicion
• The police arrested you without probable cause
• The police failed to read your Miranda rights before interrogating you
• Prosecutors have withheld evidence that is relevant to your defense
• Prosecutors have engaged in other misconduct depriving you of your rights

If the police or prosecutors have violated your constitutional rights—and if you can prove it—you may be entitled to dismissal of your OWI charge. When you hire an experienced Madison OWI lawyer to represent you, your lawyer will determine whether your constitutional rights have been violated; and, if so, your lawyer will determine what this means for your case. While constitutional violations can warrant dismissal in some cases, in others the judge may find that the violation does not preclude a fair trial.

Option #2: Show that the Prosecution’s Evidence Doesn’t Prove Your Guilt Beyond a Reasonable Doubt

Even if the prosecution’s evidence is admissible in court, an experienced Madison OWI lawyer may still be able to help you secure a dismissal by showing that the prosecution’s evidence doesn’t prove your guilt beyond a reasonable doubt. “Beyond a reasonable doubt” is the burden of proof in any criminal OWI (in Wisconsin, any 2nd or greater offense), and it is up to the prosecution to meet this burden. As a defendant, you do not have to prove anything at trial. Prosecutors will present their case first; and, if they don’t meet their burden of proof, you will be entitled to an acquittal without needing to present any evidence in your defense.

This also means that you can seek dismissal before trial if prosecutors don’t have the evidence they need to secure a conviction. If the prosecution’s evidence is lacking, there is no reason to waste your time—or the court’s time—with a trial. During the early stages of your case, your lawyer will be able to learn what evidence prosecutors have in their possession (unless they improperly withhold evidence), and then your lawyer will be able to use this information to determine whether a motion to dismiss is warranted.

What About Negotiating a Plea Bargain?

What about negotiating a plea bargain? This is an option in Wisconsin OWI cases, and negotiating a plea bargain can save you from an OWI conviction. However, your “plea” will still involve accepting responsibility for a violation of Wisconsin law—usually reckless driving. As a result, while this can also be a good option in some cases, here too, you will want to be careful to ensure that you are considering all of the options you have on the table.

Discuss Your Options with an Experienced Madison OWI Lawyer in Confidence

Are you facing an OWI charge in Wisconsin? If so, we encourage you to contact us for more information. To discuss your case with an experienced Madison OWI lawyer in confidence, call 608-302-6614 or request a free consultation online today.

The year 2024 started off especially successful for Attorney Lisa Pierobon Mays with the settlement of a workers compensation injury that involved life-changing injuries to a Wisconsin worker who had a long work history with the same employer doing very strenuous work.  Client S.S. (“SS”) worked as a Diesel Mechanic for a small Wisconsin City Municipality for over 16 years when he was seriously hurt on the job due to heavy mower falling off its hoist while he was working under it.  The 500-pound mower fell off its lift, about 5 feet to the ground, landing on SS’s backside and pinning him. SS landed face down and was pinned to the ground at his hips and low back. SS was able to free himself and scream for Help. A co-worker heard him, called for 911 who kept him stable despite his dropping blood pressure until Med Flight arrived and flew him to the hospital.

SS’s injuries were severe. His urethra was torn from his bladder requiring a catheter. He also suffered a pelvic fracture and injury to his groin. SS’s rehabilitation progress was painful and lengthy.  Regaining mobility took months, pain was constant requiring strong pain medication, nerve blocks, and surgery was performed to repair his urological injuries. SS continues to suffer chronic symptoms and pain.  He is no longer able to work as a diesel mechanic, or any job suitable for his skills and mobility issues. He is deemed functionally permanently and totally disabled, meaning his injury is debilitating enough to deem him not marketable in a normal job setting with his skill set.   Even his time-of-injury employer of over 16 years claimed that they did not have accommodating work for him and dismissed/terminated him from their employment.

The Workers Compensation Insurance Carrier accepted responsibility and paid workers compensation benefits of lost time, medical treatment, medical mileage, and some permanent partial disability but then cut SS off additional workers compensation benefits claiming that he had hit a healing plateau with improvement.  The insurance carrier argued that while SS was no longer able to work as a diesel mechanic, he was not permanently totally disabled and that he was still able to work. With this, they offered SS a minimal settlement amount for the difference in his lower earning capacity now compared to what he made as a diesel mechanic. Confused and uncertain, SS and his family turned to Attorney Lisa Pierobon Mays of Mays Law Office. Attorney Pierobon met with SS and advised him that his claim was worth much more than what the workers compensation carrier was offering.

After hiring Mays Law Office, Attorney Pierobon Mays worked with SS’s medical specialists to complete paperwork supporting his injury as totally and permanently disabling. Attorney Pierobon Mays also hired a Vocational Rehabilitation Expert who met with SS to discuss his past education, work and wage-earning history, current medical condition, chronic pain symptoms, and physical restrictions to give an opinion on SS’s current occupational abilities.

In response, Opposing Counsel hired multiple medical experts to discredit SS’s total disability claim.  One expert even gave a preposterous opinion that the 500-pound mower that landed on SS only caused a contusion to his low back. Opposing Counsel was out for blood when he hired a private investigator to secretly surveil SS over several days, recording video of him with the family horses in a snowy paddock on his own property.  While SS’s mobility in the snow and presence around the horses was of some concern, Attorney Pierobon Mays believed that Opposing Counsel was hoping for more dramatic video footage of SS doing things that he once enjoyed, such as riding the horses, stock car racing, snowmobiling, actively coaching football and hockey, volunteer firefighting, and hunting. Attorney Pierobon Mays argued that the omission of such activities in SS’s life proved the seriousness of SS’s injury because a person would never truly give up all of these fulfilling things, once loved by SS, if he could still physically do them.

Settlement negotiations intensified days before the scheduled hearing in May 2024 where Attorney Lisa Pierobon Mays and Opposing Counsel argued back and forth the strengths and weaknesses of each other’s case. Ultimately, the workers compensation insurance carrier agreed to settle for more than five times the amount that they originally offered to SS before hiring Attorney Lisa Pierobon Mays!  In addition, Attorney Lisa Pierobon Mays helped coordinate that a large portion of the settlement monies be placed into an Annuity that would pay monthly benefits, guaranteed, until Summer 2044 and then monthly thereafter for SS’s lifetime.  This settlement would sustain SS comfortably during his lifetime and leave a legacy for his family should he pass before 2044.  SS was overcome with emotions and relief with the settlement terms as the litigation was weighing heavy on his mental health.

Attorney Lisa Pierobon Mays has been representing injured workers for almost three decades. She aggressively advocates for the Wisconsin injured worker. Attorney Pierobon Mays works directly with every single one of her clients. Her clients are never pushed off to a paralegal or legal secretary, she handles every single communication with them.  This kind of attention to detail has given Attorney Lisa Pierobon Mays the coveted 5 Star Google Rating based on true and honest reviews from her past client’s. Such an accomplishment is very hard to achieve because Google demands authenticity and refuses to delete unfavorable reviews.

Attorney Lisa Pierobon Mays is not intimidated to take on prominent business or their insurance companies when an injured Wisconsin worker has been treated unfairly in the denial of workers compensation benefits. A free consultation is offered at Mays Law Office so do not hesitate to call Mays Law Office at (608)302-6614.  Attorney Lisa Pierobon Mays is happy to answer your questions.

If you have been charged with operating while intoxicated (OWI) in Wisconsin, should you testify in court? Or, is it better to stay silent and rely on other means of defense? Just like requesting a jury trial—which we discussed in last month’s post—the short answer is, “It depends.”

Understanding Your Right to Testify in Wisconsin

First, let’s talk about your right to testify. When you are facing an OWI case in Wisconsin, you have the right to testify in your own defense. You have the right to take the stand, and you have the right to explain what happened from your point of view—with the goal of convincing the judge or jury that a “Guilty” verdict is not warranted.

Whether you take the stand is completely up to you. While you have the right to testify if you choose to do so, the prosecution cannot force you to face the judge or jury under oath. However, if you choose to testify, then the prosecution does get the right to conduct a cross-examination. You can assert your privilege against self-incrimination during cross-examination, but you cannot refuse to answer prosecutors’ questions entirely.

When Does It Make Sense to Testify in an OWI Case?

With this in mind, when might you want to testify? Testifying can make sense in various circumstances. For example, it may be worth testifying in your OWI case if:

• You Need to Set the Record Straight – If you made self-incriminating statements during your OWI arrest, taking the stand could provide an opportunity to set the record straight. Did the arresting officer ask confusing questions? Did you get flustered? Did you feel pressured to say something that you didn’t mean? If prosecutors are already planning to use your own words against you, then testifying could make sense.
• You Weren’t Driving Under the Influence – If you are absolutely certain that you weren’t driving under the influence, then you don’t have anything to hide. While you will still need to be thoroughly prepared to deal with the prosecution’s cross-examination, this could be a situation in which it makes sense to testify as well.
• The Prosecution’s Evidence is Limited – It could also be worth taking the stand if the prosecution’s evidence is limited. For example, if the prosecution’s case largely hinges on your arresting officer’s testimony, telling your side of the story could be enough to convince the judge or jury that the prosecution hasn’t proven your guilt beyond a reasonable doubt.

It won’t always make sense to testify in these scenarios—and these aren’t the only scenarios in which it may make sense to testify on your own behalf. Rather, these are examples of situations in which it may make sense to take the stand in some cases. Due to the potential risks involved with taking the stand, you need to make an informed decision about whether to testify, and this means that you should discuss your case with an experienced OWI defense attorney.

Why Wouldn’t You Take the Stand in Your Own Defense?

Now that we’ve covered some of the scenarios in which it can make sense to testify, why wouldn’t you take the stand in your own defense? Simply put, taking the stand can be risky. As you evaluate your options, it will be important to consider factors such as:

• You Might Not Perform as Well as You Expect To – Almost everyone gets nervous on the witness stand. No matter how much you prepare, and no matter how confident you are in what you are planning to say, testifying under oath when you have a lot at stake can be overwhelming. If you say the wrong thing, or if you come across as being scared or nervous, this could have adverse consequences for your defense.
• You Will Need the Judge or Jury to Believe You – While some forms of evidence are undeniable, testimony is not. No matter how honest you are on the stand, there is a chance that the judge or jury simply won’t believe you. If this happens, testifying could have the opposite of its intended effect.
• Testifying Means Submitting to Cross-Examination – As we mentioned above, if you choose to testify, you will be subject to cross-examination. Many prosecutors are very good at what they do, and they know how to get defendants to contradict themselves and say things that make them appear untrustworthy.

Taking the stand can entail other risks as well. Understanding the specific risks in your case requires a careful look at the facts involved. Once again, an experienced OWI defense attorney can help, and we strongly recommend speaking with an attorney before you make any decisions about how to approach your case.

What Are Your Options if You Don’t Testify?

Let’s say you choose not to testify. If you don’t take the stand, what can you do to fight your OWI? While the options you have available depend on the facts of your case, some examples of potential options include:

• Seeking to have the prosecution’s evidence excluded from trial based on a lack of reasonable suspicion or probable cause.
• Challenging the reliability of your field sobriety test (FST) results or your blood alcohol concentration (BAC) reading.
• Showing that the prosecution’s evidence is insufficient to prove all elements of your OWI charge beyond a reasonable doubt.
• Negotiating a plea bargain that reduces your OWI to a reckless driving charge (commonly referred to as a “wet reckless”).

Discuss Your Case with an OWI Defense Lawyer at Mays Law Office in Madison, WI

Do you have questions about testifying in your Wisconsin OWI case? If so, we invite you to contact us for a free and confidential consultation. To discuss your case with an experienced OWI defense lawyer in Madison, give us a call at 608-305-4518 or tell us how we can reach you online today.

ATTORNEY STEVE MAYS WINS FOR HIS CLIENT CHALLENGING THE VALIDITY OF FIELD SOBRIETY TESTING (SFST)

Attorney Steve Mays got the OWI charge (operating while under the influence) dropped for his Client M.E. when he challenged the lawfulness of the police officer’s Field Sobriety Testing performed on the scene of arrest.

ME was pulled over due to his vehicle registration being expired. In his report of the incident, the arresting officer indicated that he detected an odor of intoxicants and noticed ME had bloodshot eyes. He further suggested that ME initially handing him a credit card when he was asked to provide his driver license was a sign of possible alcohol impairment. When asked to provide proof of insurance, ME “grabbed a bunch of papers but fumbled through them.” The officer further viewed this as evidence of impairment. When asked if he had been drinking, ME responded that he had consumed one beer approximately four hours prior. Based on these observations, the officer asked ME to exit his vehicle to perform standardized field sobriety testing (SFST).

Standardized Field Sobriety Testing is comprised of a battery of three (3) standardized tests: the Horizontal Gaze Nystagmus (HGN), the Walk-and-Turn (WAT), and the One-Leg Stand (OLS). These tests are designed to evaluate a person’s balance, coordination, and cognitive function—skills often impaired by alcohol consumption. This battery of three tests was developed after many, many national studies by the National Highway Traffic Safety Administration (NHTSA).

1. Horizontal Gaze Nystagmus (HGN): The HGN test involves observing the involuntary jerking of the eyes as they gaze to the side. Alcohol consumption exaggerates this jerking, making it more pronounced at lower angles. Officers assess the smoothness of eye movement, tracking ability, and onset of nystagmus, providing insights into the level of intoxication.

2. Walk-and-Turn (WAT): In the WAT test, individuals are instructed to take nine heel-to-toe steps along a straight line, turn on one foot, and return in the same manner. Officers look for indicators such as the ability (or inability) to maintain balance, follow instructions, and perform the task accurately, all of which can be compromised by alcohol impairment.

3. One-Leg Stand (OLS): During the OLS test, drivers are asked to stand on one leg while keeping the other foot approximately six inches off the ground. Officers monitor the individual’s ability to maintain balance and count seconds as a measure of impairment.
While SFST’s are a widely accepted tool, they are not without criticisms and limitations. Critics argue that factors such as age, weight, physical condition, and nervousness can affect test performance, leading to false positives. Additionally, certain medical conditions, environmental factors, and even footwear can influence results, casting doubt on the tests’ reliability.

Furthermore, concerns about subjectivity in interpretation exist. Officers undergo training to administer and evaluate SFST’s, but human judgment remains a factor. Bias, unconscious or otherwise, could potentially influence the outcome of tests, raising questions about fairness and accuracy.

In this particular case, an environmental factor, as mentioned above, played a pivotal role in the success of ME’s defense. One such environmental factor which can interfere with the HGN in particular is flashing lights. Nystagmus is an “involuntary jerking of the eyes.” It is always present to some degree but is exacerbated by alcohol consumption. This manifests as what is known as “gaze nystagmus.” However, there are numerous other causes of nystagmus ranging from neurological disorders to vitamin deficiencies. The particular cause at play in this case was flashing lights, which can cause “optokinetic nystagmus,” something that law enforcement officers are not trained or qualified to distinguish from gaze nystagmus.

When the officer began the first test, the HGN, pursuant to his training, he deactivated his front facing flashing squad lights so as to not be a source for a potential false positive. However, before the test commenced, a second officer arrived on scene. He did not deactivate any of his flashing squad lights. Video evidence revealed that throughout the entire HGN test there were flashing lights directly in ME’s line of vision. ME’s performance on the other two standardized field sobriety tests revealed little, if any, indications of impairment. Nevertheless, the arresting officer requested that ME submit to a handheld preliminary breath test (PBT). Based on the HGN test and the PBT result, ME was placed under arrest for Operating While under the Influence of an Intoxicant as a third offense and taken into custody to perform an evidentiary chemical test of his breath, which unlike the PBT, is admissible in court.

Based on the video evidence Attorney Stephen Mays filed a motion to suppress ME’s arrest. Suppression is a remedy for a violation of one’s constitutional rights, in this case a violation of ME’s Fourth Amendment right to be free from unreasonable searches or seizures. Two issues were raised in this case. The larger issue was whether ME’s arrest was supported by evidence of impaired driving sufficient to rise to the level of probable cause. However within that issue is the secondary question of whether the evidence leading up to the PBT request met the lesser standard of “probable cause to believe” that ME was impaired, which is the standard of proof required by statute and case law before an officer is permitted to request a PBT (see: County of Jefferson v. Renz, 231 Wis. 2d 293, 316, 603 N.W.2d 541 (1999), which was also handled and argued by Attorney Mays in the Wisconsin Supreme Court).

In practice, what this means is that if the evidence prior to the PBT request was sufficient to make the request and the result is over the legal limit, in most cases this means that the arrest itself will be deemed supported by probable cause, and therefore, lawful. If not and the PBT result is suppressed, then it is axiomatic that the arrest itself was not supported by probable cause and everything that occurred after that point becomes inadmissible in court, most importantly the evidentiary chemical breath test.

When the motion was heard by the Court, Attorney Mays mercilessly cross-examined the arresting officer regarding the impropriety of administering an HGN test in the presence of flashing lights – which he claimed did not happen, until he was proven wrong when viewing the video in court – thereby introducing the possibility that what he observed may not have been gaze nystagmus at all. Ultimately, the officer was forced to admit that he did not administer the HGN in a manner consistent with his training and as required by NHTSA, and that the validity of that test was compromised as a result. Following briefing of the legal issues, as requested by the Court, the Court ruled that the arrest of ME was not supported by probable cause in violation of ME’s Fourth Amendment rights. As a result, the evidentiary chemical breath test was suppressed for use at trial. Deprived of its most significant piece of evidence, the State had no choice but to move to dismiss the case.

Attorney Steve Mays is an aggressive advocate for his client’s. He has more than two decades of experience winning for his client’s. He has a 5 Star Google review from his previous client’s. Charged with a crime? Do not hesitate to call Mays Law Office and talk to Attorney Steve Mays for a free consultation.