What Does it Take to Prove a DUI Charge in Wisconsin?

What Does it Take to Prove a DUI Charge in Wisconsin?

Driving under the influence (DUI) is a crime under Wisconsin law. It carries steep penalties, and having a DUI conviction on your record can impact many aspects of your life.

But, if you are facing a DUI charge, this does not necessarily mean that you will be convicted. Prosecutors must prove that you are guilty—and they must do so “beyond a reasonable doubt.”

So, what does it take to prove a DUI charge in Wisconsin?

Understanding the “Elements” of a Wisconsin DUI

The crime of driving under the influence (technically, operating under the influence, or OUI, in Wisconsin) is defined in Section 346.63(1) of the Wisconsin statutes. This section of the law states:

“No person may drive or operate a motor vehicle while: (a) Under the influence of an intoxicant [or] controlled substance . . . to a degree which renders him or her incapable of safely driving . . . ; or (b) The person has a prohibited alcohol concentration.”

To see what prosecutors need to prove in order to secure a DUI conviction, we need to break Section 346.63(1) down into its “elements.” In Wisconsin, these are the elements of a DUI charge:

  • You were driving or operating a motor vehicle; and,
  • You either (a) were under the influence to a degree that renders you incapable of safely driving, or (b) had a “prohibited alcohol concentration.”

1. Driving or Operating a Motor Vehicle

Under Wisconsin law, you don’t actually have to be driving in order to be convicted of DUI. Wisconsin law allows prosecutors to pursue charges in cases in which someone is “driving” or “operating a motor vehicle.” So, what’s the difference?

Section 346.63(3)(a) of the Wisconsin Statutes defines “driving” as follows:

“‘Drive’ means the exercise of physical control over the speed and direction of a motor vehicle while it is in motion.”

Section 346.63(b) of the Wisconsin Statutes defines “operating” as follows:

“’ Operate’ means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.”

Basically, “driving” means what you think it means. If you are going somewhere in your car, truck or SUV and you are behind the wheel, then you are driving for purposes of Wisconsin’s DUI law.

However, you can also face a DUI charge for “operating” a motor vehicle. Using any of the controls of a motor vehicle constitutes operating for purposes of Wisconsin’s DUI statute. This includes putting the key in the ignition (or pushing the button on your dashboard or key fob). It also includes releasing the handbrake, shifting out of park, or even turning the wheel from the passenger seat. Thus, not only is it possible to get a DUI if you are parked, but it is also possible to get a DUI as a passenger.

The last definition we need to examine is the definition of a “motor vehicle.” This definition appears in Section 340.01(35). A motor vehicle includes any “device in, upon, or by which any person or property is or may be transported or drawn upon a highway” that is “self-propelled.” This includes pretty much anything you could possibly think of as a vehicle, although electric bicycles are specifically excluded.

2. Driving Under the Influence or With a “Prohibited Alcohol Concentration”

So, let’s assume you were driving or operating a motor vehicle. The next question is whether you were legally impaired. Wisconsin law gives prosecutors two ways to prove impairment—they can present evidence to show that you were “incapable of safely driving,” or they can present evidence of your “prohibited alcohol concentration.”

Driving Under the Influence To a Degree That Renders You Incapable of Safely Driving

In Wisconsin, prosecutors do not need to prove that your blood alcohol concentration (BAC) was above the legal limit to secure a conviction. While this is an option, it is not the only option prosecutors have available. Thus, while disputing the reliability of your BAC reading can be an effective defense strategy in some cases, it is important not to assume that you will be found not guilty if your breath or blood test result is unreliable.

Besides your BAC, there are a number of ways prosecutors may seek to prove that you were legally impaired. Some examples include:

  • The arresting officer’s testimony regarding your driving behavior
  • The arresting officer’s testimony regarding your speech, physical appearance, or unsteadiness
  • The arresting officer’s testimony regarding your performance on the field sobriety tests (FSTs)
  • Body camera or dash camera footage
  • Your statements during your traffic stop or after your arrest

Driving with a “Prohibited Alcohol Concentration”

Regardless of whether you were “incapable of safely driving,” prosecutors in Wisconsin can also secure a DUI conviction by proving that your BAC was over the legal limit. The Wisconsin Statutes refer to this as “prohibited alcohol concentration,” because different BAC limits apply under different scenarios. For example:

  • In most cases, adults over the age of 21 cannot drive with a BAC of 0.08% or above.
  • Adults over the age of 21 who have three or more prior DUI convictions cannot drive with a BAC of 0.02% or above.
  • Adults over the age of 21 who have previously refused a breath test or who have previously received a DUI with a BAC of 0.15% or above cannot drive with a BAC of 0.02% or above.

Even if you took a breath test and blew over the legal limit, it may still be possible to fight your DUI. There are several potential ways to challenge a BAC reading—and there are several other potential defenses to Wisconsin DUI charges as well. The key is to build a defense based on the particular facts of your case, and hiring an experienced defense lawyer will give you the best possible chance to avoid life-altering consequences.

Get a Free Wisconsin DUI Defense Consultation

Are you facing a DUI charge in Wisconsin? If so, we can help. To speak with an experienced Madison DUI lawyer in confidence, call 608-257-0440 or request a free consultation online now.

What Happens if You Refuse a Breathalyzer Test in Wisconsin?

What Happens if You Refuse a Breathalyzer Test in Wisconsin?

When the police pull you over and ask if you’ve been drinking, you need to make a lot of very important decisions in a very short period of time. One of these decisions is whether to take the breathalyzer test.

Wisconsin, like all other states, has an “implied consent” law. Under this law, you give your consent for the police to take a breath, blood, or urine sample when you get pulled over on suspicion of DUI. Typically, the police ask suspects to take a breath test, as this test can be performed quickly on the side of the road using a breathalyzer device.

Criminal Penalties for Violating Wisconsin’s Implied Consent Law

Just like any other law, you can break Wisconsin’s implied consent law. In other words, you can refuse to take a breathalyzer test during a DUI stop. However, just as there are consequences when you break any other law, there are consequences for breaking Wisconsin’s implied consent law as well.

These consequences can be substantial.

For a first-time offense, violating Wisconsin’s implied consent law carries the following penalties: (i) loss of your driver’s license for one year, (ii) mandatory installation of an ignition interlock device (IID) for one year; and, (iii) a 30-day waiting period before you can apply for an occupational license (a limited driver’s license that allows you to drive back and forth to your job). If you have a child under the age of 16 in your vehicle, these penalties double.

If you have a prior conviction on your record, you will face enhanced penalties as a repeat offender.

Crucially, you can be convicted of an implied consent violation and face penalties for refusing a breath test even if you were not driving under the influence. If the police lawfully stopped you and requested that you take the breathalyzer in accordance with Wisconsin’s implied consent law, you were required to comply. It doesn’t matter if you weren’t actually drunk behind the wheel.

Inference of Guilt for Refusing a Breathalyzer Test in Wisconsin

In addition to facing penalties under Wisconsin’s implied consent law, you can also face what is known as a “negative inference” in your DUI case. Basically, this means that prosecutors will be able to use your refusal of the breathalyzer test as evidence against you.

Does this mean that you stand no chance of avoiding a DUI conviction? Absolutely not. While prosecutors will assert that you refused to take a breath test because you knew you were drunk, your attorney can argue that this wasn’t actually the case. Maybe you weren’t aware of the implications of Wisconsin’s implied consent law. Or, maybe you refused the test because you didn’t want to risk a “false positive.” Or, maybe you were concerned about taking the test for other reasons. Whatever the case may be, a skilled attorney will be able to argue that the factfinder (i.e. the judge or jury) shouldn’t use your refusal against you.

How To Defend Against an Implied Consent Violation in Wisconsin

In order to protect your driver’s license and avoid installing an IID device in your vehicle (at your expense) as the result of refusing a breathalyzer test during a DUI stop, you must request a hearing within 10 days. You will want to have an attorney represent you at this hearing, as you need to present a sound defense strategy, and you need to do everything you can to avoid losing your driver’s license for a year (or longer if you are being charged as a repeat offender).

Some examples of potential defenses to implied consent violations in Wisconsin include:

  • Your DUI Stop was Unlawful – The police cannot stop you for any reason. In order to conduct a traffic stop, the police must have “reasonable suspicion” that you have committed or are in the process of committing a crime. If your traffic stop was unlawful (i.e. because the police racially profiled you), this could provide a justification for your breath test refusal.
  • The Officer Did Not Have Reason to Believe that You Were Driving Drunk – In order to validly request a breath test before arresting you, the arresting officer must “detect[] any presence of alcohol” on your person or have other “reason to believe” that you were driving drunk. If the arresting officer did not detect the presence of alcohol or have other reason to believe you were driving drunk, this may provide you with a defense.
  • The Officer Failed to Provide All Required Information – Prior to administering a breath test, an officer conducting a DUI stop must read the statement required under Section 343.305(4) of the Wisconsin Statutes. If the officer fails to provide any of the information required under Section 343.305(4), this may provide you with a defense as well.

These are not the only potential defenses to a breath test refusal in Wisconsin. An experienced DUI attorney will be able to thoroughly evaluate the circumstances of your case and identify all of the defenses you have available.

What to Do if You Refused a Breath Test During a DUI Stop in Wisconsin

Given the potential for severe consequences and the requirement to request a hearing within 10 days, what should you do if you refused a breath test during a DUI stop in Wisconsin?

At this point, you need to discuss your situation with an attorney. In addition to determining what defenses you have available, an experienced attorney can request a hearing on your behalf, begin building your defense strategy immediately, and begin working on your DUI defense. Don’t forget, fighting your refusal charge is just the first part of the process. You also need to fight your DUI—as DUI convictions carry substantial penalties in Wisconsin as well.

Schedule a Free Consultation with a Middleton, WI DUI Defense Attorney

Did you refuse a breath test during your DUI stop? If so, it is strongly in your best interests to speak with an attorney promptly. To schedule a free consultation with a Middleton DUI defense attorney at Mays Law Office, call 608-257-0440 or tell us how we can reach you online now.

What are the DUI penalties in Wisconsin?

What are the DUI penalties in Wisconsin?

In Wisconsin, driving under the influence (DUI) is a serious criminal offense. Technically referred to as operating while intoxicated (OWI) in Wisconsin, a drunk driving charge carries severe penalties, with the specific penalties that are on the table being determined based upon the defendant’s criminal history and other factors.

If you are facing a DUI (or OWI) charge in Wisconsin, it is important that you know what is at risk. Here is an overview of the DUI penalties in Wisconsin, followed by a brief discussion of the “collateral consequences” of a DUI conviction:

Overview of Wisconsin’s DUI Penalties

Wisconsin law imposes different penalties for first-time and repeat DUI offenders. In fact, the penalties for repeat offenders increase all the way up through a tenth offense. Here is an overview of the statutory penalties that apply in “standard” DUI cases (those that do not involve an accident or other aggravating factors) for first, second, and third-time offenders:

First-Time DUI Offenders

If this is your first time being charged with a DUI, you are facing financial penalties and a driver’s license suspension. If your blood alcohol concentration (BAC) was 0.15 or above, you may also be required to install an ignition interlock device (IID) in your vehicle or participate in a 24/7 sobriety program. The penalties for a first-time DUI offense in Wisconsin are:

  • $150 to $300 in fines
  • $435 OWI surcharge
  • Six to nine month driver’s license suspension
  • IID installation or 24/7 sobriety program for 12 months (if your BAC was 0.15 or above)

Second-Time DUI Offenders

If this is your second time being charged with a DUI, the penalties you are facing depend on whether (i) you received your prior DUI conviction within the past 10 years, and (ii) your prior conviction involved great bodily harm or death. If your prior DUI conviction is more than 10 years old and did not involve great bodily harm or death, the penalties you are facing include:

  • $150 to $300 in fines
  • $435 OWI surcharge
  • Six to nine month driver’s license suspension
  • IID installation or 24/7 sobriety program for 12 months (if your BAC was 0.15 or above)

If your prior DUI is less than 10 years old or involved great bodily harm or death, the penalties you are facing include:

  • $350 to $1,100 in fines
  • $435 OWI surcharge
  • Five days to six months in jail
  • 12 to 18 month driver’s license suspension
  • IID installation or 24/7 sobriety program for 12 to 18 months

Third-Time DUI Offenders

Once you get to a third-time DUI offense in Wisconsin, the penalties begin to increase dramatically. For a third offense (regardless of the specifics of your prior convictions), you will face penalties including:

  • $600 to $2,000 in fines
  • $435 OWI surcharge
  • 45 days to one year in jail
  • 24 to 36 month driver’s license suspension
  • IID installation or 24/7 sobriety program for 12 to 36 months

Certain factors can increase the penalties that are on the table. For example, if you were arrested for DUI with a minor in your vehicle, or if you caused an accident resulting in injury or death, you could be at risk for penalties including:

  • Minor Passenger Under Age 16 – For a first-time offense, a DUI with a minor passenger carries up to a $1,100 fine, five days to six months in jail, driver’s license suspension of six to nine months, and 12 to 18 months of IID use or 24/7 sobriety program participation (penalties increase for repeat offenders).
  • Accident Resulting in Injury – With no prior offense or breath test refusal, causing an accident while driving under the influence carries up to a $2,000 fine, 30 days to 12 months in jail, driver’s license suspension of 12 to 24 months, and up to 24 months of IID use or 24/7 sobriety program participation. With a prior offense or breath test refusal, the penalties increase to a $10,000 fine, up to six years in prison, driver’s license suspension of 12 to 24 months, and up to 24 months of IID use or 24/7 sobriety program participation.
  • Accident Resulting in Great Bodily Harm – If you cause an accident that results in great bodily harm while driving under the influence, you can face up to a $25,000 fine and 12.5 years in prison, plus a 24-month driver’s license suspension and 24 months of IID use or 24/7 sobriety program participation after your release.
  • Accident Resulting in Death – Causing an accident while driving under the influence is prosecuted as the crime of “homicide while OWI” in Wisconsin. If convicted, you can face up to a $100,000 fine and 25 years in prison (increased to 40 years if you have a prior DUI conviction), plus a five-year driver’s license suspension and five years of IID use or 24/7 sobriety program participation after your release.

Understanding the Collateral Consequences of a DUI Conviction

In addition to the penalties imposed by the Wisconsin Statutes, individuals who are convicted of DUI (or OWI) in Wisconsin can face various collateral consequences as well.  These are consequences outside of your sentence that can impact virtually all aspects of your life. For example, having a DUI conviction on your criminal record in Wisconsin can lead to:

  • Suspension or expulsion from school (or difficulty getting into college)
  • Loss of your current job
  • Difficulty finding a job (since many companies are hesitant to hire individuals with criminal records)
  • Difficulty finding housing (since many landlords and lenders conduct criminal background checks as well)
  • Increased car insurance rates
  • Professional discipline or loss of your professional license
  • Challenges related to child custody, eligibility for government assistance, immigration status, and other issues

Schedule a Free Consultation with a Wisconsin DUI Defense Lawyer

Are you facing a DUI (or OWI) charge in Wisconsin? If so, you must speak with a DUI lawyer about your case. To learn about the defenses you may be able to use to fight your DUI, call Mays Law Office at 608-257-0440 or request a free consultation online today.

Drunk Driving: The Prosecutor’s Role

Drunk Driving: The Prosecutor’s Role

Prosecution refers to the government’s role in the criminal justice system. When criminal activity is suspected, it is often up to the government to investigate, arrest, charge, and bring the alleged offender to trial. Prosecutors are the lawyers who work for the government and who are responsible for developing and presenting the government’s case against a defendant. Prosecutors may be called county attorneys, city attorneys, or district attorneys. The prosecutor is the opponent or “adversary” of the criminal defendant and his or her attorney; the two sides go head-to-head against each other in court. Because these criminal attorneys focus their energies on prosecuting criminal cases, they are generally very experienced in criminal law, and it is therefore essential to have an experienced defense attorney. Thus, in order to best preserve a criminal defendant’s rights and strike a fair balance in court, representation by an experienced criminal defense attorney, particularly one knowledgeable in drunk driving law, is a must.

Does Wisconsin have an ignition interlock law?

Does Wisconsin have an ignition interlock law?

Every state in the Union has laws against drunk driving. However, it is important to know that the particular laws may vary between states.

As a DUI lawyer in Madison and Middleton, I am informing you that Wisconsin is one of many states that has ignition interlock requirements after certain kinds of DUI convictions. According to the state of Wisconsin, you will have to install an ignition interlock device if you have had multiple DUIs, if you had a BAC higher than .15 at the time the police pulled you over, or if you refuse a breathalyzer test when stopped.

What is ignition interlock?

An ignition interlock device is a small breathalyzer a mechanic installs in your car. If you have an ignition interlock device installed, you must breathe into it as you are starting your car. If the device detects any alcohol on your breath, the car will not start.

Once the car is operating, you will need to breathe into it at regular intervals. This is to ensure that you have not consumed alcohol after starting the vehicle.

Can I “wait it out?”

It is of course possible to choose not to drive after receiving a DUI. However, there is no way of waiting out an ignition interlock order. Even if you choose not to drive in the direct aftermath of a DUI conviction, the requirement for ignition interlock will still stay on your record. If at any point in the future you wish to obtain a driver’s license, the requirement will still be there.

If you require an ignition interlock device, the burden for payment is on you. However, if you can prove your need to the state, you may be eligible for a 50% reduction in cost.

What Are Pretextual Traffic Stops?

What Are Pretextual Traffic Stops?

There are so many traffic laws and motor vehicle equipment regulations on the books that nearly all of us could be pulled over at any time. In other words, it’s very difficult to drive without violating some sort of traffic law.

Every year throughout the United States, law enforcement officers institute 20 million traffic stops, which is about 50,000 every single day. The reason these stops are so common is that police can pull someone over for very mundane reasons, but then use that traffic stop to investigate more serious crimes. These are known as pretextual stops.

These kinds of stops may lead to arrests for drunk driving, drug possession and other offenses unrelated to the initial reason for the stop. Law enforcement advocates claim that pretextual stops are necessary to ensure public safety. But are they? And should police have this much authority?

One major problem with pretextual stops is that officers have a lot of discretion in who they stop, which has led to significant racial bias. White drivers are 20 percent less likely to be stopped than black drivers, despite the fact that white drivers are a much larger percentage of the population. And in a large-scale analysis of stops, one study found that white drivers were more likely to be in possession of contraband (like drugs or guns), yet black drivers were searched 1.5 to 2 times more often.

Because of problems like these, some state legislatures are working to restrict the offenses for which officers can make pretextual stops. In doing so, they hope to reduce racial disparities in policing and to generally limit the amount of investigative interactions between police and average citizens (some of which can turn deadly).

Until or unless Wisconsin enacts such changes, all drivers should know that while police have broad authority to make traffic stops, their power isn’t endless. If you have been charged with drunk driving, drug possession or another offense based on a traffic stop, it may be worth investigating whether the officer had a justifiable reason to pull you over. If not, you can petition the court to suppress any evidence gathered during the stop.

For more information on how you can fight your DUI or DWI charges, contact our Madison, WI office to speak to an experienced DUI attorney today.

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