As much as the attorneys at Mays Law Office relish achieving a win in a good old-fashioned dogfight in the courtroom, it is often determined and calculated advocacy outside the courtroom that is the best and sometimes only path to success.  Some of Attorney John Orth’s recent accomplishments illustrate this truth. 

While on probation for 10 counts of theft and robbery, R.A. was arrested for 14 additional counts of criminal charges, primarily theft and drug possession.  She was confined to jail on a probation hold and proceedings to revoke her probation were initiated.  Both episodes were clearly motivated by R.A.’s addiction.  Despite the severity of both the original and new charges, Attorney Orth was able to persuade both her probation agent and the prosecuting attorney that the inadequacy of her previous treatment plan was the root cause of reoffending.  After helping her to secure placement at a long-term treatment facility, Attorney Orth was able to avoid the revocation of her probation and secure a disposition on the new charges that avoided any further reincarceration. 

F.J. was charged with felony stalking based on repeated threats of physical harm to a roommate.  While in jail, F.J.’s former guardian contacted Attorney Orth to defend F.J.  Upon digging into the circumstances surrounding his case and meeting with him, it became evident that F.J., a young man with no prior criminal record who had endured a tremendously tragic childhood, was in the midst of a mental health crisis.  Attorney Orth’s first priority was to ensure that F.J.’s mental health needs were met.  Once F.J. was stabilized, Attorney Orth was able to quickly convince the prosecuting attorney that F.J. had no criminal intentions and that he simply needed help.  Within two weeks of F.J. being charged, Attorney Orth was able get the charge reduced from a felony to a misdemeanor and secure a disposition that would result in F.J.’s record being expunged upon completion of two years of probation.

R.E. was out for dinner with a relative and unbeknownst to him, law enforcement was in the process of searching his car in the restaurant parking lot under dubious pretenses.  The search resulted in the confiscation of a firearm (lawfully owned by R.E.) and a substantial quantity of suspected marijuana.  He was arrested and charged with possession of THC with intent to deliver, a Class I Felony.  Between the questionable grounds for searching the vehicle in the first place and strong evidence that R.E. had no connection to or even knowledge of the contraband seized from his vehicle, Attorney Orth had no doubt that he would be able to secure dismissal of the charge, whether through pre-trial litigation, or if need be, through a not guilty verdict at trial.  However, for an upstanding young man like R.E., justice delayed would be justice denied and Attorney Orth was determined that R.E. not be subjected to legal meat grinder that the criminal justice system can often be.  By opening the channels of communication with the District Attorney’s Office before R.E. had even had a bail hearing and vigorously advocating on behalf of R.E., Attorney Orth was able to get the case against R.E. dismissed outright within a mere seven days of it being filed.

S.R. was charged with criminal disorderly conduct, unlawful use of a telephone and harassment stemming from a bitter dispute with the staff of a healthcare facility in which his wife was a patient.  While the healthcare facility staff was adamant that S.R. be prosecuted for his actions, Attorney Orth was able to successfully portray the altercations as uncharacteristic outbursts caused by the unique circumstances of dealing with the stresses of his wife’s illness and all charges against S.R. were dismissed outright.

D.B. was charged with two criminal counts of disorderly conduct as acts of domestic abuse after his wife contacted police and alleged that he had engaged in threatening and abusive conduct towards her and the elder of their two sons.  Being domestic abuse-related offenses, a conviction on either count would result in a lifetime ban on the possession of firearm.  In addition to being an avid hunter, D.B. was greatly concerned about how a conviction could impact his prospects of child custody and placement in a parallel family law case.  Beyond the criminal charges, D.B.s wife filed a petition for a domestic abuse injunction to prohibit her from having further contact with her and barring him from returning to his home.  While previous counsel was unable to prevent the injunction from being granted, Attorney Orth was able to turn the testimony of D.B.’s wife at the injunction hearing against her.  Pointing to inconsistencies between her statements to police, her testimony at the hearing, and her statements in her injunction petition, coupled with statements from other family members gathered by a privately retained independent investigator, Attorney Orth was able to convince the prosecuting attorney that the State would be unable to secure a criminal conviction.  The charges were reduced to a single non-criminal, non-domestic civil ticket for a nominal monetary forfeiture.

Client N.B. turned to our office with serious drug charges including maintaining a drug trafficking place and possession of cocaine.  Her arrest was the culmination of an investigation including dozens of controlled drug purchases at her place of business by confidential informants working under the supervision of the U.S. Drug Enforcement Agency and local law enforcement.  Moreover, cocaine was found on her person when she was booked into jail.  While N.B. was lawfully residing in the U.S., she was not a citizen and potentially subject to deportation.  And any federally recognized drug conviction is grounds for deportation.  Given the extent of incriminating evidence, the prospect of running the table with not guilty verdicts at trial would be unlikely at best.  However, working with investigators Attorney Orth was able to substantiate that N.B. was in fact trapped against her will in a toxic relationship with a manipulative and violent drug dealer who was forcing her to allow him to use her place of business as a front for his criminal activity.  Attorney Orth was then able to persuade the prosecuting attorney to drop all criminal charges against N.B. and instead simply issue her a non-criminal ticket, little more than a warning, thus avoiding any criminal record or danger of deportation.

OWI vs. PAC: What’s the Difference in Wisconsin?

While most states have DUI laws, Wisconsin law does not define drunk driving as “driving under the influence.” Instead, the Wisconsin Statutes establish two different drunk driving-related offenses. If you get pulled over for drunk driving in Wisconsin, you may be charged with either: (i) “operating while intoxicated” (or “OWI”); and, (ii) driving with a “prohibited alcohol concentration” (or “PAC”).

Although OWI and PAC are both drunk driving charges, they are very different. They require the prosecution to prove different elements, and they require drivers to assert different defenses. As a result, if you’ve been arrested for drunk driving, you need to know whether you are being charged with OWI or PAC—and you need to build your defense strategy accordingly.

What is OWI in Wisconsin?

Let’s start with OWI. The offense of operating while intoxicated is established in Section 346.63(1)(a) of the Wisconsin Statutes. This section of the law states:

“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, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving . . . .”

As you can see, an OWI charge does not require proof of your blood alcohol concentration (BAC). If you have been drinking and your alcohol consumption “renders [you] incapable of safely driving,” you can be charged with OWI regardless of whether your BAC is over the legal limit.

This means two things. First, you can be charged with OWI if the police don’t record your BAC. If you refuse the breath test, or if the arresting officer does not test your BAC for any other reason, you can still face an OWI charge.

Second, if you take the breathalyzer and blow below the legal limit, you can face an OWI charge in this scenario as well. If the officer determines that you were driving unsafely and that alcohol consumption is likely to blame, he or she can charge you with an OWI. Studies have found that, “virtually all drivers are impaired regarding at least some driving performance measures at a 0.05 BAC,” and that “[t]he risk of being involved in a crash increases significantly at 0.05 BAC and above.” Thus, even if your BAC is below 0.08%, the officer may still determine that you are impaired and incapable of driving safely.

What is PAC in Wisconsin?

Now, let’s take a look at PAC. The offense of driving with a prohibited alcohol concentration is established in Section 346.63(1)(b) of the Wisconsin Statutes. This section of the law states:

“No person may drive or operate a motor vehicle while . . . [t]he person has a prohibited alcohol concentration.”

This, obviously, raises an important question: What is a “prohibited alcohol concentration”? This term is defined in Section 340.01(46m) of the Wisconsin Statutes:

“‘Prohibited alcohol concentration means one of the following: If the person has 2 or fewer prior convictions, suspensions, or revocations . . . an alcohol concentration of 0.08 or more[; or,] If the person is subject to an order under s. 343.301 [requiring use of an ignition interlock device] or if the person has 3 or more prior convictions, suspensions or revocations, . . . an alcohol concentration of more than 0.02.”

So, for most people, a “prohibited alcohol concentration” is a BAC of 0.08%. However, if you have (or are supposed to have) an ignition interlock device in your vehicle, or if you have three or more prior DUIs, you can be arrested for driving with a BAC above 0.02%.

Note that a PAC charge does not require evidence of actual impairment. In other words, even if you are still capable of driving safely, you can be found guilty of PAC if your BAC is over the legal limit. This is what is known as a “strict liability” offense. If you break the law, it doesn’t matter whether you put anyone’s safety at risk.

Recap: OWI vs. PAC

So, to recap, what is the difference between OWI and PAC in Wisconsin? While OWI and PAC are both drunk driving offenses, prosecutors can prove them in different ways:

• Operating While Intoxicated (OWI) – You can be convicted of OWI if you are unable to drive safely due to alcohol consumption. This is true regardless of your BAC.
• Prohibited Alcohol Concentration (PAC) – You can be convicted of PAC if your BAC is over the legal limit. This is true regardless of whether you are able to drive safely.

This means that defending against an OWI charge and defending against a PAC charge are very different as well. To defend against an OWI charge, you must be able to successfully challenge the government’s evidence that either (i) you were incapable of driving safely, or (ii) you were under the influence of alcohol. This could involve disputing the government’s evidence that you were drinking, providing an alternate explanation for your driving behavior, and/or asserting a variety of other defenses.

To defend against a PAC charge, you must be able to successfully challenge the government’s evidence of your BAC. This could involve challenging the reliability of your BAC reading (i.e., due to calibration issues), providing an alternate explanation for your BAC, or asserting other BAC-related defenses. However, arguing that your driving abilities weren’t impaired is not an effective defense to a PAC charge.

One similarity between OWI and PAC cases is the availability of constitutional defenses. If the police or prosecutors violate your constitutional rights, then any evidence obtained (or withheld) in violation of your rights may be inadmissible in court. Without admissible evidence of OWI or PAC, prosecutors won’t be able to secure a conviction in court.

Discuss Your OWI or PAC Case with a Drunk Driving Defense Lawyer at Mays Law Office

Are you facing an OWI or PAC charge in Wisconsin? If so, we encourage you to contact us for more information. To speak with a drunk driving defense lawyer at Mays Law Office, please call 608-257-0440 or request an appointment online today.

If the police stopped you on suspicion of drunk driving and you took the breathalyzer on the side of the road, there is a good chance that prosecutors will be able to use your blood alcohol concentration (BAC) reading against you. Unless the police violated your rights during your traffic stop or you can show that your BAC reading is invalid, prosecutors can most likely use it against you in court.

But, what if you refused the breathalyzer?

While Wisconsin’s “implied consent” law requires drivers to take the breathalyzer (provided that the police comply with the law’s requirements), some people don’t know this law exists, and some people refuse the breathalyzer for other reasons. If you refused the breathalyzer—and prosecutors don’t have your BAC to present as evidence in court—can you still be convicted of DUI?

Understanding What Happens When You Refuse the Breathalyzer During Your DUI Stop in Wisconsin

The short answer is, “Yes.” This is due to the language of Wisconsin’s DUI law. Under Section 346.63(1) of the Wisconsin Statutes, prosecutors have two ways to prove that a driver was drunk behind the wheel.

The first way prosecutors can prove a DUI case is by showing that the driver was over the legal limit. Section 346.63(1)(b) provides that:

“No person may drive or operate a motor vehicle while . . . [t]he person has a prohibited alcohol concentration.”

What does it mean to have a “prohibited alcohol concentration”? This term is defined in Section 340.01(46m) of the Wisconsin Statutes:

“Prohibited alcohol concentration” means one of the following . . . If the person has 2 or fewer prior convictions, suspensions, or revocations. . . an alcohol concentration of 0.08 or more[; or,] [i]f the person is subject to an [ignition interlock device order] or if the person has 3 or more prior convictions, suspensions or revocations . . . an alcohol concentration of more than 0.02.”

So, as you can see, a DUI charge under Section 346.63(1)(b) requires evidence of the driver’s BAC. In fact, a DUI charge under this section is based entirely on the driver’s blood alcohol concentration at the time of his or her arrest. If you are driving with a prohibited alcohol concentration (i.e., a BAC of 0.08 percent or above), this is all prosecutors need to prove that you are guilty of DUI.

Now, let’s take a look at the second way prosecutors can prove a DUI case in Wisconsin. Section 346.63(1)(a) states:

“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 . . . .”

This form of DUI does not require evidence of the driver’s blood alcohol concentration. Under Section 346.63(1)(a), if prosecutors can show that you were drinking and that this rendered you “incapable of safely driving,” then it doesn’t matter whether your BAC was over the legal limit at the time of your arrest.

How can prosecutors prove that you were under the influence of alcohol if they don’t have your BAC from the breathalyzer? Depending on the circumstances of your case, prosecutors may be able to use a variety of forms of evidence to prove that you are guilty. For example, in many cases, prosecutors will be able to use evidence such as:

• An open container in the vehicle
• The driver’s admissions to the police
• The driver’s performance on the field sobriety tests (FSTs)
• The arresting officer’s testimony regarding the driver’s behavior or appearance
• Dash camera or traffic camera footage

Again, these are just examples. Since prosecutors don’t need your BAC to prove that you were driving drunk, even if you refused the breath test, it is still extremely important that you discuss your case with an experienced DUI defense lawyer as soon as possible. If prosecutors have other evidence against you, they may still be able to secure a conviction—and, if so, you are still at risk for substantial penalties.

What Are the Consequences of Refusing a Breath Test in Wisconsin?

Since prosecutors can prove a DUI case regardless of whether they have the driver’s BAC reading, does it really matter whether you refused the breathalyzer during your DUI stop? One again, the short answer is, “Yes.” There are two very important reasons why:

1. “Implied Consent” Violations Carry Substantial Penalties in Wisconsin

First, “implied consent” violations carry substantial penalties under Wisconsin law. Since this violation relates to your breathalyzer refusal—not your actions behind the wheel—you can face these penalties regardless of whether you were driving drunk. In Wisconsin, the penalties for first-time “implied consent” violations include:

• A 12-month driver’s license suspension
• A 30-day waiting period before you can apply for an occupational license
• Mandatory installation of an ignition interlock device for 12 months

2. Prosecutors Can Use Your Refusal Against You in Your DUI Case

Second, while prosecutors won’t be able to rely on your BAC if you refused the breathalyzer, they will be able to rely on your refusal. Under Wisconsin’s “implied consent” law, refusing the breathalyzer creates an inference that you knew you were driving drunk. While it may be possible to overcome this inference by arguing that you refused the test for other reasons (i.e., you didn’t understand the test was mandatory or you were worried about a “false positive”), there are never any guarantees in court.

Discuss Your Case with an Experienced Wisconsin DUI Defense Lawyer in Madison

If you are facing a DUI charge in Wisconsin after refusing the breathalyzer during your traffic stop, it is important that you discuss your case with an experienced defense lawyer as soon as possible. We offer free initial consultations, and we can explain everything you need to know about fighting your DUI (and your “implied consent” violation). To speak with a Wisconsin DUI defense lawyer in Madison as soon as possible, call 608-257-0440 or tell us how we can reach you online now.

In Wisconsin, the consequences of getting arrested for drunk driving can be severe. Even “standard” first-time drunk driving charges carry substantial penalties, and having a conviction on your record for operating a motor vehicle while intoxicated (OWI) can negatively impact many aspects of your life.

But, the consequences are even more severe if you cause an accident while driving drunk.

If you cause an accident while driving drunk, the penalties that are at stake depend on the consequences of the accident. Wisconsin law establishes three separate offenses for OWI accidents: (i) causing injury while OWI; (ii) causing great bodily harm while OWI; and, (iii) homicide by OWI. These are felony charges in many cases, and convictions carry mandatory jail time.

Criminal Charges for OWI Accidents in Wisconsin

Each of these offenses carries its own set of penalties, and each offense has its own “elements” that prosecutors must prove in order to secure a conviction. Here is an overview of the charges you may be facing if you have been accused of causing a serious or fatal accident while driving drunk in Wisconsin:

1. Causing Injury While OWI

Causing an accident that results in any level of injury elevates the risks of facing an OWI charge in Wisconsin. If convicted, you could face a $2,000 fine and up to a year of jail time—with a mandatory minimum sentence of 30 days.

2. Causing Great Bodily Harm While OWI

If the accident results in “great bodily harm,” you can be charged with a Class F felony. These felonies carry up to a $25,000 fine and 12.5 years of imprisonment.

What constitutes “great bodily harm”? Section 939.22(14) of the Wisconsin Statutes defines “great bodily harm” as “bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.” As you can see, this is extremely broad, and this breadth allows prosecutors to pursue Class F felony charges in many cases.

3. Homicide By OWI

If you are involved in a fatal accident while driving under the influence, you can be charged with homicide by OWI. Under Section 940.09 of the Wisconsin Statutes, homicide by OWI is a Class D felony in most cases. However, it can be elevated to a Class C felony for individuals who have prior criminal records. As a Class D felony, homicide by OWI carries up to a $100,000 fine and 25 years of imprisonment. Repeat offenders facing Class C felony charges can be sentenced to as many as 40 years behind bars.

Defending Yourself Against an OWI Accident Charge in Wisconsin

Due to the severe consequences of getting convicted of causing injury or death while driving under the influence in Wisconsin, if you are facing an OWI accident charge, you need to defend yourself by all means available. This starts with putting an experienced OWI defense lawyer on your side. When you hire an experienced lawyer to represent you, your lawyer will examine all potential defenses and put together a trial strategy focused on protecting you to the fullest extent possible.

While there are several potential defenses to OWI accident charges in Wisconsin, the defenses you have available will depend on the facts of your case. With this in mind, some examples of defense strategies your lawyer might be able to use to protect you include:

• Challenging the Prosecution’s Evidence that You Caused the Accident – Even if you were involved in an accident while driving drunk, this doesn’t necessarily mean that you caused the accident. If prosecutors cannot prove that you caused the accident, then you do not deserve to be held accountable for any serious or fatal injuries that resulted from the collision. Since the prosecution has the burden of proof, you don’t need to be able to prove that the accident was someone else’s fault—you just need to be able to convince the jury that prosecutors haven’t proven that you caused the accident beyond a reasonable doubt.
• Challenging the Prosecution’s Evidence that You Were Intoxicated or Impaired – Your lawyer may also be able to fight your OWI accident charge by challenging the prosecution’s evidence that you were intoxicated or impaired. There are several ways to fight an “ordinary” OWI charge, and all of these are potential defenses to OWI accident charges as well.
• Challenging the Admissibility of the Prosecution’s Evidence – Even if the evidence shows that you caused an accident while driving drunk, prosecutors still won’t be able to secure a conviction if their evidence is inadmissible in court. If you have grounds to keep the prosecution’s evidence out of court (i.e., because the police violated your Fourth Amendment rights), this could save you from a conviction as well.
• Asserting Other Constitutional and Procedural Defenses – Along with challenging the admissibility of the prosecution’s evidence, there are several other potential constitutional and procedural defenses to OWI charges filed in the Wisconsin courts. If prosecutors violate your right to a speedy trial, if there are issues with the jury selection process, or if any of a variety of other issues arise during your case, these could all potentially serve as grounds for acquittal.
• Negotiating a Plea Bargain if Necessary – Finally, if the cards are stacked against you, you may be able to minimize the consequences of your OWI accident by negotiating a plea bargain. Your lawyer can help you decide if this is in your best interests; and, if it is, your lawyer can negotiate with the prosecutor’s office on your behalf.

Discuss Your Wisconsin OWI Accident Case with an Experienced Defense Lawyer

Are you facing an OWI accident charge in Wisconsin? If so, we encourage you to contact us promptly for more information. To discuss your case with an experienced defense lawyer in confidence as soon as possible, call 608-257-0440 or tell us how we can reach you online now.