Every person accused of Operating While Intoxicated (OWI) has constitutional and statutory rights. When law enforcement fails to follow those rules, the consequences can be significant.
In a recent OWI First Offense case, Mays Law Office filed three separate motions asking the court to suppress critical evidence:
The unlawful arrest.
An improperly obtained Preliminary Breath Test (PBT).
The blood test — because our client’s legally guaranteed alternative chemical test was never provided.
The judge granted all three motions, and the case was dismissed during one of the shortest motion hearings we’ve ever experienced.
The Traffic Stop
Our client, whom we’ll call JM, was stopped for an alleged speeding violation.
While speaking with JM, the officer claimed to notice two possible signs of impairment: an odor of alcohol and somewhat slurred speech. The officer then asked JM to perform standardized field sobriety tests.
Overall, JM performed well.
The officer claimed JM showed:
Six of six clues on the Horizontal Gaze Nystagmus (HGN) test.
Two of eight clues on the Walk-and-Turn (WAT) test.
Zero of four clues on the One-Leg Stand (OLS) test.
After the field sobriety tests, the officer retrieved a Preliminary Breath Test (PBT) device from his squad car. Rather than asking whether JM would agree to take the test, the officer simply explained what the device was, moved it toward JM’s mouth, and said, “Here.”
The PBT indicated the presence of alcohol.
JM was then arrested and read Wisconsin’s Informing the Accused form, which explains the rights of drivers arrested for an OWI offense.
At that point, JM specifically requested a breath test instead of a blood draw.
The officer responded that blood was the department’s primary test, but assured JM he could “absolutely” take a breath test afterward.
Motion #1: The Arrest Was Not Supported by Probable Cause
Our first motion challenged the legality of JM’s arrest.
Although the officer claimed to observe two clues on the Walk-and-Turn test, one of those clues was scored incorrectly.
The officer claimed JM “stopped while walking” after completing the turn. But that’s exactly what the standardized testing instructions require. Pausing after completing the turn is not a clue of impairment.
Because the Walk-and-Turn test was improperly scored and JM showed no clues on the One-Leg Stand test, we argued the field sobriety tests actually supported innocence—not intoxication.
Without properly administered and accurately scored field sobriety tests, the officer lacked probable cause to arrest JM. In fact, the information gleaned from these tests could not even amount to the lower “probable cause to believe” standard to request a PBT, an issue addressed by Motion #2.
Motion #2: The Preliminary Breath Test Was Not Voluntary
Our second motion focused on Wisconsin’s Preliminary Breath Test statute, and dovetailed nicely from the first motion to this one.
Wisconsin law allows an officer to request that a driver submit to a PBT before an arrest when the officer has the required level of probable cause.
That distinction matters.
The law permits a request—not a command. Not an order to do it.
In JM’s case, the officer never asked.
Instead, he simply produced the device, explained it, moved it toward JM’s mouth, and said, “Here.”
We argued that a reasonable person in JM’s position would believe the test was mandatory rather than optional. Because the statute requires a request, we asked the court to suppress the PBT results, as it was coerced.
Motion #3: The Officer Failed to Honor JM’s Right to an Alternative Test
Our third motion involved one of the most overlooked protections in Wisconsin’s Implied Consent law.
After an arrested driver completes the officer’s requested chemical test, Wisconsin law guarantees the driver the opportunity to obtain an alternative chemical test or arrange for an additional independent test.
This protection exists to ensure fairness and is considered an important component of statutory due process.
JM clearly requested a breath test after being informed that blood would be the primary test.
The officer responded that JM could “absolutely” take the breath test after the blood draw.
But after the blood was drawn, the officer never followed up.
Instead, he transported JM directly to jail.
Wisconsin courts have already addressed this exact situation.
In State v. Renard, the Wisconsin Court of Appeals held that once a driver requests an alternative chemical test, the arresting officer has a duty to make a diligent effort to provide it. Failing to do so violates the driver’s statutory rights and requires suppression of the primary chemical test.
They reviewed multiple National Highway Traffic Safety Administration (NHTSA) training manuals, body camera footage, squad camera videos, and detailed timelines before walking into court ready to present their arguments.
The hearing was scheduled to begin at 1:00 p.m.
The State had subpoenaed the arresting officer, who was the only witness needed to oppose the motions.
He never appeared.
After waiting approximately ten minutes, the judge ruled from the bench:
“If the defendant hadn’t shown up, I would have no choice but to find him in default. And what’s good for the goose is good for the gander. So I grant all three defense motions.”
Prior to doing so, the judge did state that if the assertions in the 3rd motion were factually accurate (which, of course they were – having been taken directly from the videos) he was inclined to grant that motion anyway had there been a hearing.
So 12 minutes into the “hearing,” the court granted all three motions and dismissed both the OWI and the PAC citations.
Why This Case Matters
This case is about much more than one favorable outcome.
It demonstrates why every OWI case deserves a careful review by experienced defense counsel. Police officers must follow the law just as citizens must. When procedures aren’t followed, courts have both the authority and the responsibility to enforce those rules.
At Mays Law Office, our team identified multiple legal issues, prepared extensively, and stood ready to present them in court. Although the hearing ended before testimony was taken, the result reflected the importance of thorough preparation and holding the State to the same standards expected of every defendant.
Justice works best when the rules apply equally to everyone — and as the judge chided, “What’s good for the goose is good for the gander!”
And Attorneys Mays and Geiger were pleased to deliver this very favorable outcome to our client in record time!
Facing an OWI or PAC Charge in Dane County? Talk to Mays Law Office.
If you have been arrested for an OWI in Madison, Middleton, or anywhere in Dane County, the details of the stop — the field sobriety tests, the PBT, the chemical test, and how your rights were explained — can decide the outcome. We offer a free, confidential consultation to review exactly what happened in your case. Learn more about how we defend these cases on our OWI / DUI defense page, or contact us and tell us how we can reach you.
This article describes an actual case handled by Mays Law Office; the client’s name has been abbreviated to protect privacy. Every case is different, and past results do not guarantee future outcomes. This article provides general legal information and is not legal advice. Consult a licensed Wisconsin attorney about your situation.
Wisconsin is among the minority of states where sobriety checkpoints are illegal. Section 349.02(2)(a) of the Wisconsin Statutes requires individualized reasonable suspicion before the police can stop a vehicle, and evidence from an unlawful stop can be suppressed. Mays Law (Madison/Middleton) builds custom-tailored OWI defenses based on a comprehensive case analysis that starts with scrutinizing the stop itself.
The U.S. Supreme Court has held that sobriety checkpoints are constitutional, and most states use checkpoints to catch drunk drivers on Friday and Saturday nights. But, Wisconsin does not. Wisconsin is one of just a dozen states that has banned police from using checkpoints for operating while intoxicated (OWI) enforcement.
While you won’t get arrested at a sobriety checkpoint in Wisconsin, you can still get an OWI as the result of a normal traffic stop. Police departments in Wisconsin might not be able to use checkpoints, but they can (and do) increase their patrols during times when people are most likely to be drinking and driving. This approach is completely legal; and, as a result, if you are facing an OWI charge in Wisconsin, determining what defenses you have available starts with scrutinizing the circumstances that led to your stop and arrest.
The Wisconsin Statute That Bans Checkpoints
Sobriety checkpoints are banned under Section 349.02(2)(a) of the Wisconsin Statutes. The relevant language in the statute states:
“[A] police officer . . . may not stop or inspect a vehicle solely to determine compliance with [the OWI statute] unless the police officer, sheriff, deputy sheriff, traffic officer or motor vehicle inspector has reasonable cause to believe that a violation . . . has been committed. This paragraph does not limit the authority of a police officer . . . to make an arrest or issue a citation for a violation of [the OWI statute] observed in the course of a stop or inspection made for a lawful purpose.”
The requirement for, “reasonable cause to believe that a violation . . . has been committed,” prevents the police from conducting sobriety checkpoints—which necessarily involve stopping drivers without reasonable cause. Crucially, this language also prevents the police from stopping drivers at random, based on racial or ethnic profiling, or for other unlawful reasons.
As a result, OWI traffic stops can be—and often are—unlawful. If your OWI stop was unlawful, this could render the state’s evidence against you inadmissible in court. In this scenario, filing a suppression motion can be a key defense strategy, and it can potentially result in pre-trial dismissal.
What Police Can and Can’t Do During a Wisconsin Traffic Stop
Not only do the police need to comply with the law when stopping drivers, but they also need to comply with the law once they have pulled someone over. Illegal police conduct during a traffic stop can potentially serve as grounds for a suppression motion as well. With this in mind, here are some things that the police can and can’t do during a Wisconsin traffic stop:
The police can ask for your driver’s license and registration (and you are generally required to provide them).
The police can ask you if you have been drinking, but they cannot continue to press for answers if you assert your right to remain silent.
The police can look into your vehicle and ask for your consent to conduct a search.
The police can search your vehicle if you consent, and they can seize any evidence in plain view with or without your consent.
The police can ask you to take the breathalyzer and field sobriety tests (FSTs), but they cannot force you to do so (though drivers must comply with Wisconsin’s implied consent law).
If a police officer determines that there is probable cause to make an OWI arrest based on the evidence that is available, the officer can conduct an arrest and proceed with further processing. However, if probable cause is lacking, the officer must inform the driver that he or she is free to leave.
When a Stop or Arrest Is Unlawful: How OWI Suppression Motions Work
If you are facing an OWI charge in Wisconsin and the police violated your rights during your traffic stop or arrest, the state’s evidence against you could be inadmissible in court. Without admissible evidence, prosecutors won’t be able to prove your guilt beyond a reasonable doubt.
But, as a defendant, it is up to you to assert your legal rights. To keep the prosecution’s evidence out of court, you must file a suppression motion prior to trial. If your suppression motion is successful, then the next step may be to file a motion to dismiss.
Filing a suppression motion is a complex process. You must be able to prove that the police violated your rights, and you must be able to prove that prosecutors obtained their evidence against you as a result of the violation. As a result, if you have grounds to file a suppression motion, it will be important to have an experienced OWI defense lawyer on your side.
Other Pre-Trial Defenses in a Wisconsin OWI Case
Along with defenses based on unlawful traffic stops and arrests, defendants in Wisconsin OWI cases may be able to assert various other pre-trial defenses as well. These include defenses based on:
Improper breathalyzer or FST procedures
Inaccurate or unreliable blood alcohol concentration (BAC) reading
Withholding of exculpatory evidence
Violation of the right to a fair and speedy trial
Other substantive and procedural flaws in the prosecution’s case
An experienced OWI defense lawyer will be able to evaluate all potential pre-trial defenses based on the facts of your case and seek to have your OWI charge dismissed before trial if warranted. If seeking pre-trial dismissal is not a viable option, your lawyer can help you make an informed decision about whether to seek a plea bargain, enter into a diversion program, or fight your OWI at trial.
Schedule a Free Consultation with an OWI Defense Lawyer at Mays Law Today
If you are facing an OWI charge in Madison or Middleton, we encourage you to contact us promptly for more information. Call 608-305-4518 or contact us online to schedule a free consultation with an OWI defense lawyer at Mays Law today.
Section 973.195 of the Wisconsin Statutes allows for the early conversion of prison time into supervision once a convicted individual has served 75% to 85% of their confinement. Mays Law (serving Middleton and Madison) seeks judicial release for its clients in Dane County, even when the district attorney (DA) objects under the Stenklyft precedent.
Individuals who are serving prison time for qualifying felonies are eligible to seek sentencing adjustments under Section 973.195 of the Wisconsin Statutes. While the Wisconsin Supreme Court held that district attorneys (DAs) have the authority to block inmates’ requests for sentencing adjustments in State v. Stenklyft, the Court also clarified that lower courts have discretionary authority to grant inmates’ requests absent a valid objection—and inmates may be able to challenge the validity of the DA’s objection in certain cases.
With this in mind, it is important for inmates in Dane County to be aware of their rights under Section 973.195. Those who are eligible to seek early release can engage legal counsel to represent them during the process, and an experienced Dane County criminal defense lawyer will be able to assist with challenging any objections or other issues that may arise.
Eligibility for § 973.195 Adjustment
Not all inmates in Dane County are eligible to seek a sentence adjustment under Section 973.195. Sentence adjustments are only available to inmates who are serving prison time for certain classes of felonies, and other strict requirements apply as well.
Eligible Felony Convictions and Time Served
Section 973.195 only applies to incarcerated individuals who are serving prison time for Class C through Class I felonies. Under subsection 973.195(1g), individuals who are serving time for felonies covered under the law can apply for a sentencing adjustment once they have served the “applicable percentage” of their prison sentence:
Class C to Class E Felonies: Inmates can file for a sentence adjustment once they have served 85 percent of their prison sentence.
Class F to Class I Felonies: Inmates can file for a sentence adjustment once they have served 75 percent of their prison sentence.
As explained in subsection 973.195(1r)(a), “[i]f an inmate is subject to more than one sentence imposed under this section, the sentences shall be treated individually for purposes of sentence adjustment under this subsection.” In other words, if you have served the “applicable percentage” of one prison sentence but have not yet served the “applicable percentage” of another, you will generally be ineligible for early release under Section 973.195.
Grounds to File a Petition for Early Release
In addition to serving the “applicable percentage” of their sentence for an eligible felony, inmates must also be able to prove that they have grounds to file a petition for early release. Under subsection 973.195(1r)(b), the grounds for filing a petition are as follows:
“The inmate’s conduct, efforts at and progress in rehabilitation, or participation and progress in education, treatment, or other correctional programs since he or she was sentenced.”
“A change in law . . . related to sentencing or revocation of extended supervision effective after the inmate was sentenced that would have resulted in a shorter term of confinement in prison or, if the inmate was returned to prison upon revocation of extended supervision, a shorter period of confinement in prison upon revocation . . . .”
“The inmate is subject to a sentence of confinement in another state or the inmate is in the United States illegally and may be deported.”
Granting a sentence adjustment is, “otherwise in the interests of justice.”
If you believe that you may be eligible to seek a sentence adjustment under Section 973.195, an experienced Dane County criminal defense lawyer can assist with determining if you have the required grounds to file. If you do, your lawyer can then file a petition on your behalf in the appropriate court and fight to secure an early release to extended supervision on your behalf.
Importantly, subsection 973.195(1r)(i) makes clear that, “[a]n inmate may submit only one petition . . . for each sentence imposed . . . .” In other words, when it comes to seeking a sentence adjustment following a felony conviction in Dane County, you don’t get a second chance. This is one reason—among many—why it is essential to have an experienced lawyer on your side.
The Stenklyft Precedent in 2026
While Section 973.195 provides eligible inmates with the right to apply for a sentence adjustment, it also provides the DA with the authority to object. Specifically, under subsection 973.195(1r)(c):
“Upon receipt of a petition filed . . . the sentencing court may deny the petition or hold the petition for further consideration. If the court holds the petition for further consideration, the court shall notify the district attorney of the inmate’s petition. If the district attorney objects to adjustment of the inmate’s sentence within 45 days of receiving notification under this paragraph, the court shall deny the inmate’s petition.”
An inmate named David Stenkyft challenged the constitutionality of subsection 973.195(1r)(c) in 2005. However, in the case of State v. Stenklyft, the Wisconsin Supreme Court ruled that this provision of the law was constitutional—and the Court’s decision remains in force today.
Overcoming Prosecutorial Objections
While the Supreme Court ruled that subsection 973.195(1r)(c) is constitutional, inmates may still be able to challenge prosecutorial objects to their petitions in certain circumstances. For example, if the DA does not object within 45 days, the objection should be deemed invalid. If necessary, our lawyers can determine if you have grounds to challenge any prosecutorial objections to your petition.
Reentry Strategy for Dane County Inmates
Reentering society after serving a lengthy prison term presents a number of challenges. Yet, while on extended supervision, former inmates must be very careful to ensure that they do not do anything that could result in being sent back to prison. Our lawyers can assist you with developing a reentry strategy as well, and there are various resources that we can help you pursue if desired.
Schedule an Appointment with a Dane County Criminal Defense Lawyer at Mays Law Office
If you have questions about applying for a sentence adjustment under Section 973.195, we invite you to get in touch. To schedule an appointment with a Dane County criminal defense lawyer at Mays Law Office, call us at 608-305-4518 or contact us online today.
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