Most first-time OWI defendants in Wisconsin assume there is nothing to defend — the machine said 0.08, so pay the ticket. After three decades practicing in Dane County’s courts — on both sides of OWI cases — I can tell you that assumption gives away real defenses in a surprising number of cases. The state’s evidence is built by human beings following detailed rules at every step — the stop, the roadside tests, the arrest, the chemical test — and when a step violates your constitutional or statutory rights, Wisconsin courts can suppress what came from it.
This page lays out the defense options that actually exist for a first offense OWI in Wisconsin — what each one challenges, and what honest outcomes look like.
Why Fight a Ticket That Isn’t a Crime?
Because it never goes away. A first offense stays on your Wisconsin driving record effectively for life — WisDOT retains alcohol-related convictions for 55 years, and no expungement removes them — and for the next 10 years it is the prior that turns any second incident into a criminal charge with mandatory jail. It also brings a 6-to-9-month revocation, a mandatory alcohol assessment, a possible year-long ignition interlock order, a three-year SR-22 filing if you need an occupational license, and a one-year commercial disqualification for CDL holders. (And a first offense is not civil at all if a minor under 16 was aboard or another person was hurt — those variants are criminal from day one.) The full picture is in what a first offense really involves — the short version is that this is the cheapest point in your life to contest an OWI, and the only chance to keep the record clean.
Challenging the Stop
An officer needs reasonable suspicion of a violation to pull you over. If the stop fails, everything after it falls. Wisconsin courts have drawn real limits here: in State v. Post, 2007 WI 60, the Wisconsin Supreme Court held that weaving within your own lane is not, by itself, automatic grounds for a stop — the whole picture has to add up. Stops built on hunches, anonymous tips without corroboration, or minor touching of a lane line are all litigable. The squad video usually settles what really happened, which is why preserving it early matters.
Challenging the Field Sobriety Tests and the PBT
The three standardized roadside tests — horizontal gaze nystagmus, walk-and-turn, one-leg stand — feed the officer’s probable cause to arrest. They are also far weaker than they look on a police report:
NHTSA’s own training materials caution that people over 65 or significantly overweight may have difficulty with the balance tests regardless of sobriety.
Knee, hip, back, and inner-ear conditions mimic “clues,” and so do cold, wind, uneven pavement, and footwear.
Officers must administer and score the tests to the NHTSA standard — improvised instructions or misscored clues are cross-examination material. In one recent case of ours, the report claimed a walk-and-turn clue the video showed was scored against the manual.
The roadside preliminary breath test (PBT) is a screening device. Under Wis. Stat. § 343.303, its result helps a court review probable cause — it is not admissible to prove intoxication at your OWI trial. The same limit applies to the roadside oral-fluid (saliva) screening Wisconsin authorized in 2026. And how the PBT was obtained matters on the right facts: an improperly obtained PBT was one of the three granted motions in the first-offense dismissal we published. We break down the roadside battery in common issues with field sobriety tests.
Challenging the Breath or Blood Test
The evidentiary test — the number on the citation — has its own rulebook:
Breath tests require an observation period of at least 20 minutes before the sample (Wis. Admin. Code Trans 311.06) and a maintained, calibrated instrument. The observation logs and maintenance records are discoverable, and gaps in them are defenses.
Blood draws are Fourth Amendment searches. Absent your actual consent or true exigent circumstances, police need a warrant — the U.S. Supreme Court said so in Missouri v. McNeely (2013), and the Wisconsin Supreme Court struck down the statute’s “incapacitated driver” consent shortcut in State v. Prado (2021). Chain of custody and lab analysis are also fair game.
Timing. Wisconsin’s presumptions attach to tests taken within three hours of driving (Wis. Stat. § 885.235). Beyond that window the state needs expert testimony to establish what the number proves — and even inside it, a rising-alcohol curve can, on the right facts and with expert support, put your level at the time of driving below the limit when the test came long after the stop.
The alternative-test right is the sleeper. After you submit to the agency’s primary test, Wisconsin law entitles you, on request, to a second test — one the agency must provide free of charge, or one you arrange at your own expense (Wis. Stat. § 343.305(4)–(5)). When police promise or deny that requested second test and fail to make a diligent effort to provide it, courts can suppress the primary result. That exact violation was one of the three motions that got a first-offense OWI dismissed for our client in twelve minutes of hearing time.
If You Refused: the Refusal Hearing
A refusal starts its own case against your license — and its own opportunity. You have 10 days from the Notice of Intent to Revoke to demand a refusal hearing (Wis. Stat. § 343.305(9)). The hearing’s issues are narrow — whether the officer had probable cause, whether you were properly read the Informing the Accused advisories, whether you actually refused, and whether the refusal was due to a physical inability unrelated to alcohol — but requesting it stops the automatic revocation from taking effect until a judge rules, and it puts the arresting officer under oath on the record — testimony the rest of the defense can use. More in what happens if you refuse a breathalyzer in Wisconsin.
Suppression Works in Civil OWI Cases
A first offense being civil does not weaken these defenses — constitutional and statutory violations are litigated by motion in municipal and circuit court alike. When a motion is granted, the state’s case often collapses: no lawful stop means no evidence; no valid test means no number. And if the case must be tried, the forum is a choice you make early: in a municipal-court case, a written jury demand plus the jury fee within 10 days of a not-guilty plea moves the case to circuit court for a six-person jury, while state-cited cases start in circuit court, where the same 10-day demand rule applies. The mechanics and deadlines are covered in what happens at your first OWI court appearance.
What Are the Realistic Outcomes?
Honesty matters more than marketing here:
Dismissal happens when suppression guts the case or the state cannot prove its elements — it is the exception, not the rule, and it is earned by finding real defects, as in the three-motion dismissal we published. A dismissal or acquittal also reaches the license side: the administrative suspension is purged from your record once the court reports the outcome to the DOT (Wis. Stat. § 343.23(4); different rules apply to commercial drivers).
Amendment to a lesser violation is tightly policed in Wisconsin: a prosecutor seeking to amend or dismiss an OWI must apply to the court and state the reasons, and the court may approve only if doing so is consistent with the public’s interest in deterring drunk driving (Wis. Stat. § 967.055). Translation: charges get amended when the evidence has a genuine problem, not as a courtesy — which is another reason the defense work above is what moves cases.
Trial puts the state to its proof — “clear, satisfactory and convincing” evidence in a civil forfeiture case. Bench or jury is a strategic call we make together.
A managed plea — when the evidence holds up, the remaining work is protecting your license timeline (occupational eligibility, interlock scope, assessment scheduling) so the consequences land as lightly as the law allows.
What will not work: “I only had two beers,” “I drive better than I test,” or waiting for the case to resolve itself — we keep a candid list in defenses that won’t protect you. No lawyer can promise a result; what a defense lawyer promises is that every rule the state had to follow gets checked.
Frequently Asked Questions
Can a first offense OWI be dismissed in Wisconsin?
Yes, when the evidence fails legally — an invalid stop, a defective arrest, a suppressed test. Wisconsin law requires prosecutors to justify any OWI dismissal or amendment on the record, so dismissals come from defense work, not negotiation charm.
Is it worth getting a lawyer for a first OWI?
A first offense is the one conviction you can still prevent — the driving-record entry it creates is permanent. A defense review costs nothing here (consultations are free), and the deadlines it protects — the 10-day administrative review, the 10-day refusal hearing, the 10-day jury demand — expire fast whether or not you use them.
Should I have refused the tests?
That decision is behind you, and both paths are defensible — a test case has the number to attack; a refusal case has the hearing and its own procedures. What matters now is acting inside the windows that are still open.
Do these defenses apply to the PAC charge too?
Largely, yes — a defective stop or arrest undermines both citations. But the two charges have different elements: knocking out the test result can defeat the PAC while the state still argues impairment on the OWI, which is why a full defense addresses both.
Want Your First-Offense Case Actually Reviewed? Talk to Mays Law Office.
Attorney Stephen E. Mays began his career in the Dane County District Attorney’s office and has since won OWI cases at the municipal, circuit, appellate, and Wisconsin Supreme Court levels. If you were arrested in Madison, Middleton, or anywhere in Dane County, bring us the citation and the notices — the review is free and confidential. Start with how we defend OWI cases, read about Attorney Mays, or contact us and tell us how we can reach you.
This article provides general legal information about Wisconsin law and is not legal advice. Case results depend on their specific facts, and past results do not guarantee future outcomes. Consult a licensed Wisconsin attorney about your situation.
The court date printed on a Wisconsin OWI citation is rarely immediate — and for a first offense, that first appearance is short, procedural, and, if you understand what it is for, nothing to fear. But two things about it surprise almost everyone: the most important deadlines in your case expire before that date, and what you say at the appearance can lock in or give away your right to a jury.
Here is what actually happens at a first OWI court appearance in Wisconsin, what happens after it, and how the sequence runs in Madison, Middleton, and the rest of Dane County, where our office defends these cases.
Which Court Will You Be In?
Wisconsin routes a first-offense OWI — a civil violation — based on the law behind the citation:
City police, city ordinance → municipal court. A first offense cited by the Madison Police Department is handled by the Madison Municipal Court; a Middleton PD citation goes to the Middleton Municipal Court. Nearly every Dane County suburb — Sun Prairie, Verona, Fitchburg, Monona, Stoughton — runs or shares a municipal court for these citations.
Sheriff or State Patrol, state statute → circuit court. Those citations are filed as civil forfeiture actions in Dane County Circuit Court at the courthouse in downtown Madison.
Any criminal version → circuit court. If a minor under 16 was in the vehicle, the intoxicated driving injured another person, or a prior OWI-related offense counts against you (a 10-year window for a second offense; lifetime counting from a third), the case is criminal, prosecuted by the District Attorney in circuit court — and the first appearance is a formal initial appearance in a criminal case.
The Deadlines That Come Before Your Court Date
By the time of a typical first appearance, these windows have already closed unless someone acted:
10 days to request an administrative review if you took the test and blew 0.08 or higher (13 days, excluding weekends and holidays, if the notice was mailed) — otherwise a 6-month administrative suspension starts when the 30-day temporary license on your Notice of Intent to Suspend expires (Wis. Stat. § 343.305(7)–(8)). That request goes to the Wisconsin DOT, not to the court.
10 days to request a refusal hearing if you declined testing (Wis. Stat. § 343.305(9)) — otherwise a revocation of at least one year takes effect, separate from the OWI charge itself.
Neither request happens at your court appearance, and the court will not raise them for you. This is the concrete reason to involve a lawyer in week one rather than the night before court.
What Happens at the First Appearance for a Civil First Offense?
It is brief — usually a few minutes. The judge or court official confirms who you are, confirms the charge (typically OWI and its companion PAC citation), and asks for your plea:
Not guilty keeps every option open. The court schedules a pretrial conference with the prosecutor, and your attorney can then obtain the police reports, squad and body camera video, and test records.
Guilty or no contest ends the case that day: conviction, forfeiture, revocation, assessment — everything described in our first-offense guide, permanently on your record.
Three practical points for a first offense:
You generally do not have to appear in person. Because the case is civil, Wisconsin law lets a municipal-court defendant make the initial appearance by filing a written not-guilty response before the hearing time (Wis. Stat. § 800.035), and courts accept an appearance through your attorney. Check the citation’s instructions — and never simply skip the date: in a forfeiture case the court can enter a default judgment against you for not answering, which is a conviction with none of your defenses heard.
No bail, no booking, no jail on this charge. A standard first offense is not a crime; the appearance is about the plea and scheduling.
Say nothing about the facts. The plea is the only substantive thing communicated. Explanations about the stop or the drinking belong in negotiations or motions, not on the record at appearance one.
Bench Trial or Jury — the 10-Day Decision After Your Plea
Municipal courts in Wisconsin do not hold jury trials — a contested case there ends in a bench trial, decided by the municipal judge. If you want a jury for a first-offense OWI, Wisconsin law gives you a transfer mechanism with a hard clock:
Enter a not guilty plea in municipal court;
File a written jury demand within 10 days of that plea; and
Pay the six-person jury fee — $6 per juror, $36 in total (Wis. Stat. § 814.61(4)).
The case then transfers to Dane County Circuit Court, where it is heard by a six-person jury. Miss the window and the right is gone — the case stays in municipal court for a bench trial, with a later appeal to circuit court as the fallback (an appeal that has its own short deadline and its own rules). In a case that starts in circuit court, the same rule applies through Wis. Stat. § 345.43: a written jury demand plus the jury fee within 10 days of the not-guilty plea. Whether a jury actually helps is a strategy call — we cover how we make it in requesting a jury trial in a Wisconsin OWI case.
One more difference worth knowing: because a first offense is civil, the city or state does not have to prove it beyond a reasonable doubt. The standard is “clear, satisfactory and convincing” evidence (Wis. Stat. §§ 800.08(3), 345.45) — lower than criminal court, which is exactly why the suppression motions described below carry so much weight.
What Happens After the First Appearance?
A contested first-offense case follows a predictable arc over the next few months:
Pretrial conference. Your attorney meets the city attorney or prosecutor, reviews the evidence, and tests whether the case should resolve or proceed.
Motions. If the stop, the field sobriety testing, the arrest, or the chemical test was legally defective, your attorney files suppression motions — fully available even though the case is civil. Our office recently had a first-offense OWI dismissed twelve minutes into the motion hearing after filing three of them.
Trial. Bench trial in municipal court, or a six-person jury in circuit court if the demand was made in time.
Madison Municipal Court — City-County Building, 210 Martin Luther King Jr. Blvd., Madison. Handles first-offense OWI citations written by Madison PD.
Middleton Municipal Court — 7341 Donna Dr., Middleton. Handles City of Middleton citations.
Dane County Circuit Court — Dane County Courthouse, 215 S. Hamilton St., Madison. Hears state-cited forfeiture cases, jury transfers, and every criminal OWI.
Arrive early, bring your citation and any DOT notices you received, and dress as you would for a job interview. If we appear for you, you may not need to be there at all — we will tell you exactly which dates require you.
Frequently Asked Questions
Do I have to go to my first OWI court date?
For a civil first offense, usually not in person — a written not-guilty plea or an appearance through your attorney typically satisfies it. What you cannot do is ignore the date: non-appearance in a forfeiture case invites a default judgment.
Will I be arrested or jailed at the appearance?
Not on this charge. A standard first offense is a civil matter — it carries no bail and no custody. Criminal OWI cases (minor passenger, injury to another person, countable priors) follow criminal procedure instead.
Should I plead guilty at the first appearance to get it over with?
That decision is permanent — an OWI conviction stays on your Wisconsin driving record for decades, with no expungement path — and it is being made before anyone has reviewed the video, the testing, or the paperwork for defects. Plead not guilty, have the evidence examined, and decide with complete information. You can always resolve the case later; undoing a conviction after you plead is a far harder, discretionary process.
How soon after the arrest is the court date?
It depends on the court’s calendar — often a matter of weeks. But the 10-day license deadlines run from the dates on the DOT notices you were handed, not from the court date.
Facing Your First OWI Appearance in Dane County? Talk to Mays Law Office.
Attorney Stephen E. Mays began his career in the Dane County District Attorney’s office and has spent three decades practicing in Dane County’s courts, with OWI wins at the municipal, circuit, appellate, and Wisconsin Supreme Court levels. Before your court date, get the deadlines protected and the evidence requested. We offer a free, confidential consultation: see how we defend OWI cases or contact us and tell us how we can reach you.
This article provides general legal information about Wisconsin law and is not legal advice. Court procedures vary by municipality and change over time. Consult a licensed Wisconsin attorney about your situation.
A first offense OWI in Wisconsin is a civil violation, not a crime — no jail, no criminal record. That is the part most people hear first, and it is true. What almost nobody tells you at the roadside is that the deadlines that decide your driver’s license start running within days of the arrest, and that this “civil ticket” follows you for the rest of your life if you simply pay it.
Our office has defended OWI charges in Madison, Middleton, and the surrounding Dane County communities for decades. This page explains what a first offense actually involves under Wisconsin law: the penalties, what happens to your license, what it really costs, and the decisions you have to make in the first ten days.
Is a First OWI a Crime in Wisconsin?
No — with important exceptions. Wisconsin is the only state that treats a standard first-offense OWI as a civil forfeiture rather than a criminal charge. Under Wis. Stat. § 346.65(2)(am)1, the penalty is a forfeiture of $150 to $300. There is no jail time, and the violation does not create a criminal record.
A first offense becomes a criminal charge when any of the following is true:
A passenger under 16 was in the vehicle. The charge becomes a criminal offense punishable by a $350 to $1,100 fine and 5 days to 6 months in jail (Wis. Stat. § 346.65(2)(f)1).
You injured someone. Causing injury to another person while operating intoxicated is a criminal charge carrying a $300–$2,000 fine and a mandatory 30 days to one year in jail (Wis. Stat. § 346.65(3m)); causing great bodily harm or death is a felony (Wis. Stat. §§ 940.25, 940.09).
You have a prior. An OWI-related conviction, suspension, or revocation within the last 10 years makes the new charge a criminal second offense.
Most people arrested for a first OWI are actually cited for two violations from the same stop: OWI (driving under the influence, Wis. Stat. § 346.63(1)(a)) and PAC (operating with a prohibited alcohol concentration of 0.08 or more, § 346.63(1)(b)). They are defended together, and a guilty finding on both counts as one conviction for sentencing and prior-offense counting. We explain the distinction in OWI vs. PAC: what’s the difference?
What Are the Penalties for a First Offense OWI?
For a standard first offense (no priors, no minor passenger, no injury), a conviction carries:
Forfeiture of $150–$300 plus a mandatory $535 driver improvement surcharge (Wis. Stat. § 346.655) and court costs.
Driver’s license revocation of 6 to 9 months (Wis. Stat. § 343.30(1q)).
A mandatory alcohol and drug assessment (AODA) and a driver safety plan you must complete — this applies to every OWI, including a first offense.
An ignition interlock device (IID) if your test result was 0.15 or higher, or if you refused testing — for at least one year (Wis. Stat. § 343.301). The order works two ways: the device goes on the vehicles registered to you, and your license only permits you to drive IID-equipped vehicles. While it lasts, your legal limit drops to 0.02. A court can exempt a vehicle if equipping all of them would cause undue financial hardship (§ 343.301(1m)(a)), but that is discretionary, never automatic.
Proof of insurance (SR-22) filing if you want an occupational license — maintained for three years — which typically means paying high-risk rates.
Occupational licenses exist for exactly this situation: a restricted license that lets you drive for work, school, medical care, and household duties while revoked — up to 12 hours a day and 60 hours a week, for the hours, purposes, and counties you list in your application. For a standard first-offense revocation or administrative suspension you are eligible to apply at any time (Wis. Stat. §§ 343.30(1q)(b)2, 343.305(8)(d)); a test refusal currently means waiting out the first 30 days of its one-year revocation. (A new law, 2025 Wisconsin Act 210, will eventually end that refusal wait in exchange for stricter interlock rules — it is not yet in effect, so the current rules above govern.) Details in our occupational license guide.
What Does a First OWI Actually Cost?
The forfeiture is the smallest number on the bill. A realistic tally for a first offense with a test result of 0.15 or higher looks like this:
Forfeiture: $150–$300 (set by statute)
Driver improvement surcharge: $535 (set by statute)
License reinstatement fee: $200 (set by statute)
AODA assessment: roughly $165–$500 depending on the county (about $300 in Dane County)
Ignition interlock (if ordered): WisDOT estimates roughly $1,500 a year for installation, monthly rental, and servicing
Insurance: if you need an occupational license, the SR-22 filing plus three years of high-risk premiums — the increase depends entirely on your insurer and record
Add it up and the real cost of this “civil ticket” runs well into the thousands of dollars. The statutory figures above are fixed; the assessment, interlock, and insurance numbers vary by county, vendor, and carrier — your numbers will differ.
What Happens to Your License — and the 10-Day Deadline
Two separate tracks can take your license after a first-offense arrest, and both start before you ever see a courtroom.
If you took the test and the result was 0.08 or higher: the officer gives you a Notice of Intent to Suspend. Your license will be administratively suspended for 6 months (Wis. Stat. § 343.305(7)) when the 30-day temporary license on that notice runs out. You have 10 days from the notice (13 days, excluding weekends and holidays, if it was mailed) to request the administrative review that can stop that suspension — the request goes to the Wisconsin DOT, not to the court. This suspension track runs whether or not you have been convicted of anything.
If you refused the test: the officer gives you a Notice of Intent to Revoke. You have 10 days to request a refusal hearing in court (Wis. Stat. § 343.305(9)). Miss it, and your license is revoked for at least a year, an ignition interlock is required, and the refusal is treated separately from — and in addition to — the OWI charge itself. What happens next is covered in what happens if you refuse the breathalyzer in Wisconsin.
These deadlines are the single most common thing first offenders lose by waiting. Requesting the review or hearing costs little, preserves your options, and in a refusal case lets your attorney question the arresting officer under oath early in the case.
Does a First OWI Stay on Your Record?
Effectively forever. There is no expungement path for a first-offense OWI — the expungement statute (Wis. Stat. § 973.015) does not reach civil forfeitures — and WisDOT retains alcohol-related convictions on your driving record for 55 years. First offenses are common — Wisconsin recorded nearly 26,000 OWI convictions in 2024, per WisDOT records — but common does not mean harmless. The permanence has three practical consequences:
The 10-year rule. A second offense within 10 years of the first is a criminal misdemeanor with mandatory jail. Your first offense is the clock that makes that possible.
Lifetime counting. From a third offense on, every prior OWI in your lifetime counts toward penalties — there is no washout. A fourth offense is a felony regardless of how old the priors are.
Commercial drivers. A first OWI conviction — even in your personal vehicle — disqualifies a CDL for one year (three years if hauling placarded hazmat). A second means lifetime disqualification (Wis. Stat. § 343.315).
One distinction worth knowing: a driver under 21 cited under Wisconsin’s absolute sobriety rule (any alcohol above 0.00, Wis. Stat. § 346.63(2m)) faces a $200 forfeiture ($400 if a passenger under 16 was aboard) and a 3-month suspension — and that violation is not a countable prior offense. An under-21 driver at 0.08 or above, though, faces the standard adult OWI/PAC charges.
Where Will Your Case Be Heard in Dane County?
It depends on the law behind the citation. A first-offense OWI written by a city police department under a local ordinance — Madison PD, Middleton PD — is prosecuted in that city’s municipal court. A citation written under the state statute, typically by the Dane County Sheriff’s Office or the State Patrol, goes to Dane County Circuit Court in Madison. Criminal versions of a first offense (minor passenger, injury) always go to circuit court.
The venue matters: municipal court trials are decided by a judge alone, and moving the case to a jury requires a written demand and a jury fee within 10 days of your not-guilty plea. We walk through the whole sequence — including what happens at your initial appearance and the deadlines that follow — in what happens at your first OWI court appearance.
Can You Fight a First Offense OWI?
Yes — and because the conviction is permanent, a first offense is often the most important one to fight. Every element of the state’s case can be examined: the reason for the stop, the field sobriety testing, the preliminary breath test, the arrest itself, and the chemical test procedures. When the police cut corners, courts suppress the evidence. Our office recently had a first-offense OWI and PAC dismissed after filing three suppression motions — the unlawful arrest, an improperly obtained PBT, and a denied alternative test.
Not for a standard first offense — it is a civil violation with no jail penalty. Jail enters the picture only if a minor under 16 was in the car, another person was injured, or a countable prior OWI offense is on your record.
Should I just pay the ticket?
Paying is a conviction: a permanent driving-record entry, a 6-to-9-month revocation, the surcharge, the assessment, an SR-22 filing when you need an occupational license, and a loaded gun for a criminal second offense during the next 10 years. At minimum, have the evidence reviewed before you decide — consultations here are free.
Do I need a lawyer for a civil OWI?
Because a first offense is civil, the state will not appoint one — but the deadlines, the administrative suspension, and the suppression issues are the same machinery used in criminal OWI cases. An attorney can request the hearings in time, obtain the squad video and test records, and identify the defenses before the plea deadline.
How long does a first-offense OWI case take?
A contested case commonly runs several months from citation to resolution — pretrial conference, motions, and, if needed, trial. The license clocks run on their own schedule, which is why the 10-day requests come first.
Arrested for a First OWI in Madison or Middleton? Talk to Mays Law Office.
Attorney Stephen E. Mays has spent three decades practicing in Dane County’s courts — he began his career in the Dane County District Attorney’s office and has since won OWI cases at the municipal, circuit, appellate, and Wisconsin Supreme Court levels. The first ten days decide more than most people realize. We offer a free, confidential consultation: read about how we defend OWI cases, learn more about Attorney Mays, or contact us and tell us how we can reach you.
This article provides general legal information about Wisconsin law and is not legal advice. Statutes and penalties change, and every case is different. Consult a licensed Wisconsin attorney about your situation.
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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