If you have been arrested for drunk driving in Wisconsin, the best-case scenario is to get your operating while intoxicated (OWI) charge dismissed without going to trial. Getting your charge dismissed will allow you to avoid the life-altering consequences of an OWI conviction, and getting it dismissed without going to trial will save you time, money, and stress.

Is this outcome too good to be true?

In many cases, the answer is “No.” Not only are there ways to fight your OWI charge before your trial date arrives, but diversion is also an option for many first-time offenders.

What is “Diversion” in a Wisconsin OWI Case?

The Wisconsin Courts have established several diversion programs that allow first-time offenders to avoid the life-altering consequences of a conviction. While each program has different eligibility criteria and requirements, it generally functions the same way.

When you enter one of these programs, your case is “diverted” from trial. This means your case is taken off of the court’s docket during your participation. Your case will be dismissed if you fully participate in the program and complete its requirements successfully. You will not have to go to trial and will not have an OWI conviction on your record.

As a result, seeking diversion is a good option for eligible first-time offenders who do not have substantial grounds to fight their OWI charges. To qualify for diversion, you do not need to have a defense to your OWI charge. Even if there is no question that you were driving under the influence, you may still be eligible to enroll.

What to Expect if You Enroll in an OWI Diversion Program

Let’s say you are eligible for diversion, and let’s say you decide to enroll. What can you expect from this point forward?

Generally, participating in an OWI diversion program involves completing specific requirements while ensuring you stay out of trouble. In this way, it is somewhat similar to being on probation. However, while probation violations can lead to jail time, failing to complete a diversion program will put your case back on the court’s trial docket.

Some examples of typical requirements under OWI diversion programs include:

• Attending alcohol counseling
• Attending substance abuse classes
• Performing community service
• Submitting to mandatory blood alcohol concentration (BAC) testing
• Paying fines and restitution
• Abstaining from illegal drug use and excessive alcohol consumption
• Avoiding criminal activity (including OWI)

Again, these are just examples. If you are considering diversion to resolve your Wisconsin OWI case, you will want to make sure you understand the specific requirements that apply in your jurisdiction. If you are not confident that you can meet these requirements, seeking diversion might not be your best option.

Should You Seek Diversion in Your Wisconsin OWI Case?

With this in mind, should you seek diversion in your Wisconsin OWI case? The answer to this question depends on your specific circumstances, and you will want to consult with an experienced Madison OWI lawyer to ensure that you are making an informed decision. Here are some of the critical factors your lawyer will help you consider:

1. Are You Eligible to Enroll in an OWI Diversion Program?

First, you must determine whether you can enroll in an OWI diversion program. If you aren’t eligible, there is no point in going any further—instead, you should focus on building your defense or seeking a plea bargain. While many first-time offenders are eligible, there are exceptions, and you do not want to spend time, money, and effort seeking diversion when you should instead be focused on pursuing another route to minimize the consequences of your OWI arrest.

2. Are You Confident in Your Ability to Meet the Program’s Requirements?

Second, you must be confident in meeting the program’s requirements if you are eligible. As mentioned above, if you do not complete your OWI diversion program successfully, your case will be returned to court. If there is a good chance that you will end up fighting your OWI charge anyway, then enrolling in a diversion program might not be worth it.

3. Do You Have Strong Defenses to Your OWI?

Finally, while entering into a diversion program is one way to get your OWI charge dismissed (if you are eligible), this is not the only option for seeking dismissal. If you have strong defenses to your OWI charge, you may be able to avoid a conviction without going through a diversion program. Working with an experienced Madison OWI lawyer who can help you make informed decisions is also critical.

How Do You Enroll in an OWI Diversion Program in Wisconsin?

The steps for enrolling in an OWI diversion program vary between jurisdictions. When you hire a Madison OWI lawyer to represent you, your lawyer will guide you through seeking enrollment. Your lawyer will also help ensure you understand all the requirements you need to meet, and your lawyer will be there if you have questions or concerns while participating in the program.

While diversion can be a good option for resolving your OWI case, once again, you should not assume this is the best approach. To ensure that you are making informed decisions with your long-term best interests in mind and that you do not run out of time to protect yourself, you should speak with a lawyer as soon as possible.

Contact Us for a Free Consultation with a Madison OWI Lawyer

Do you have questions about seeking diversion in your Wisconsin OWI case? If so, we encourage you to contact us promptly for a free consultation. To discuss your case with an experienced Madison OWI lawyer in confidence, call 608-305-4518 or tell us how we can reach you online now.

The number one question asked of our attorneys in social settings is “Should I blow or not blow if stopped by the police?”  The cheap and easy response is blow if you know you will pass.  However, it’s more complicated than that in understanding your rights and the risks.

When pulled over under suspicion of operating while intoxicated (OWI) in Wisconsin, you might be faced with a crucial decision: whether or not to submit to an evidentiary chemical test of your blood, breath or urine. This decision can significantly impact your legal situation, and understanding both the legal and practical implications is essential.

Understanding the Legal Context

Wisconsin, like all states, has an Implied Consent Law. This means that by driving on public roads, you have implicitly consented to chemical testing (breath, blood, or urine) if an officer has probable cause to believe you are under the influence of alcohol, drugs or a combination thereof. Refusing to take an Implied Consent test has both immediate and long-term consequences.

Immediate Consequences of Refusing

1. Automatic License Revocation: In Wisconsin, refusing to take an Implied Consent test results in the issuance of a Notice of Intent to Revoke Operating Privilege form which law enforcement will file with the applicable court. If you fail to request a hearing to contest the refusal allegation within 10 business days, adverse judgment will be entered against you and your license will be revoked commencing 30 days from the date of notice. For a first offense, the revocation period is one year with a 30-day wait period before you would be eligible for even an occupational license. For a second offense, the revocation period is two years with a 90-day wait period before you would be eligible for an occupational license. For a third offense or greater, the revocation period is three years with a 120-day wait period before you would be eligible for an occupational license. In all cases the court will order that any vehicle owned or operated by you be equipped with an Ignition Interlock Device (IID). The court will additionally order that you complete an Alcohol and Other Drug Abuse (AODA) assessment and complete any recommended education or counselling. Failure to do so will result in a separate non-compliance revocation and render you ineligible for an occupational license. This revocation is separate from any criminal charges or penalties that may arise from the underlying OWI arrest itself.
2. Potential for a Search Warrant: If you refuse any Implied Consent test, the arresting officer may, and in most cases will, obtain a search warrant to compel a blood test. This can lead to further complications and delays, and a blood test may be more incriminating if it shows a higher blood alcohol concentration (BAC) than what might have been indicated by a breath or urine test, in the event that one of those methods was what was originally requested. More importantly, if a compelled blood draw is performed, you will potentially have incurred the penalties for refusing in vain.
3. Evidentiary Concerns and Potentially Increased Penalties: Even if a compelled blood draw is not performed, the refusal itself can be used as evidence of guilt in court. Prosecutors may argue that your refusal indicates a consciousness of guilt. In other words, a judge or jury may presume that the reason you refused an implied consent test is that you knew that it would likely be incriminating. Recent U.S. Supreme Court rulings have held that an individual has a protected constitutional right to refuse a blood draw and cannot be criminally punished for exercising such a protected right. That said, the reality is that a sentencing judge will be aware of your lack of cooperation and while no express punishment is permissible, it is likely to influence his or her sentencing decision. And there is no such prohibition on increased penalties if a breath or urine test is originally requested.
4. Long-Term Considerations
   1. Impact on Legal Strategy: If you refuse an Implied Consent test, your defense attorney may have fewer options to challenge the evidence against you. For example, the burden of proof in a refusal hearing is significantly lower than the burden of proof in the underlying OWI.  This is particularly problematic in a first offense OWI, where the penalties for the refusal are more onerous than those of the underlying OWI. In other words, even if you have a winning strategy for a defense to the OWI, you may end up in a worse position if you are convicted of the refusal but avoid the OWI. On the other hand, if you agree to the test and your BAC is above the legal limit, the evidence against you is straightforward, but there might still be avenues to contest the legality of the stop, arrest or the administration of the test.
   2. Insurance and Driving Record: An OWI conviction, combined with a license revocation, can impact your driving record and insurance rates for years to come. A refusal can exacerbate these issues, leading to increased insurance premiums and potential difficulties in getting coverage.

When Might Refusal be Considered?

Refusing an Implied Consent test might be considered if you believe the test could lead to an inaccurate result, particularly if you have concerns about the test’s reliability or the potential for a false positive. Additionally, if you are aware that your BAC is significantly over the legal limit, some might argue that refusing the test could be a strategic move to avoid more compelling evidence of intoxication. However, as stated above, law enforcement will almost certainly obtain a search warrant for a compelled blood draw rendering the refusal futile. The reality is that refusing an Implied Consent test is a mistake in nearly every situation.

Consulting a Legal Professional

Given the complexities of OWI cases, consulting a DUI lawyer who specializes in Wisconsin law is crucial if you’ve been charged with a refusal and underlying OWI. Here at Mays Law Office, LLC, our experienced drunk driving attorneys can provide personalized advice based on your case specifics, help you understand the potential outcomes, guide you through the legal process, and develop and execute winning defense strategies.

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.

Diversion Programs in Wisconsin Drunk Driving Cases

One reason why you might not want to negotiate a plea bargain is that your case could qualify for diversion. Entering into a diversion program allows you to avoid a conviction entirely—provided that you complete the program successfully. While Wisconsin’s drunk driving laws allow diversion in most first-time OWI and PAC cases, they also impose stringent requirements for defendants who choose to participate. Even so, participating can still be worth the time and effort involved.

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 608-257-0440 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.

3 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 all Wisconsin OWI cases, 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.

Option #3: Enter Into a Diversion Program Before Trial

A third option for getting an OWI charge dismissed before trial in Wisconsin is to enter into a diversion program. While different counties have different diversion programs, the fundamental concept behind each of these programs is the same: If you enter into the program, your OWI case will be “diverted” from trial during your participation; and, if you complete the program successfully, your OWI charge will be dismissed.

Entering into a diversion program can be a good option in many circumstances—especially if you got caught driving under the influence. But, as there are costs involved in completing a diversion program (in addition to a substantial time commitment), you should not assume that this is your best option automatically. If you have grounds to keep the prosecution’s evidence out of court, or if prosecutors simply don’t have the evidence they need to win in court, then working with your lawyer to file a motion to dismiss could be a better option.

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 608-257-0440 or request a free consultation online today.

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”).
• Entering into one of Wisconsin’s diversion programs, which allows you to avoid a conviction regardless of the facts of your case.

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 608-257-0440 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.