Revocación de la libertad condicional

por Mays Law | Jun 3, 2025 | Defensa Penal

En lo que es cada vez más difícil para los abogados de defensa criminal en estos días, el abogado Stephen Mays y Mays Law Office, LLC prevaleció - finalmente - en una audiencia de revocación de la libertad condicional contra el Departamento de Correcciones (DOC) y un oficial de libertad condicional muy molesto y persistente y su supervisor.

En abril de 2023, en el condado de Dane, el cliente de MLO fue condenado (mientras representado por otro abogado) de Operar un Vehículo Motorizado Bajo la Influencia (OWI) como cuarta ofensa, un delito grave. En la sentencia, el tribunal retuvo la sentencia y ordenó tres años de libertad condicional, con algún tiempo de cárcel condicional.

Casi dos años más tarde, en enero de 2025, esta misma persona llamó a la policía porque su casa se estaba incendiando. El ahora cliente de MLO, que estaba en la escena cuando el oficial llegó y se identificó a través de su tarjeta de identificación estatal. El agente obtuvo información del cliente MLO, que declaró que estaba siguiendo el protocolo en relación con los incendios de estructuras. Primero preguntó si había algo inflamable en o cerca del edificio, aparentemente por razones de seguridad, antes de pasar a preguntar sobre cualquier objeto de valor que pudiera haber en la residencia. En cuanto a la primera cuestión, el cliente de MLO declaró que habría munición en la residencia, junto con otros artículos potencialmente inflamables o explosivos. Cuando se le preguntó por los objetos de valor, el cliente de MLO declaró que había armas en un cobertizo exterior no adosado.

En total, las fuerzas del orden recuperaron cinco armas largas (rifles o escopetas) de un cobertizo situado a más de 150 metros de la casa incendiada. No se localizaron ni incautaron pistolas, otras armas de fuego ni armas de ningún tipo. Basado en la presencia de esos artículos y el estado de libertad condicional del cliente MLO, fue detenido por ser un delincuente en posesión de armas de fuego. El cliente de MLO se mostró conforme al ser detenido, pero se lamentó de que tal vez no debería haber dicho a los agentes lo de las armas, ya que nunca las habrían encontrado.

El DOC entonces buscó revocar la libertad condicional de OWI del cliente de MLO por la violación de posesión de un arma de fuego por un criminal - un cargo que también fue traído por separado por la oficina del Fiscal de Distrito y lleva un potencial de 10 años en la prisión.

En la vista de revocación, el cliente de MLO declaró que había dicho a la policía que estaba en libertad condicional y que no debía estar en posesión de armas de fuego. También declaró que miembros de su familia y otras personas tenían acceso al edificio para guardarlas. No se recuperó ningún arma de fuego de la residencia. El agente testificó que el cliente de MLO se mostró cooperativo y comunicativo a lo largo de sus interacciones y que probablemente no se habría dado cuenta de la presencia de ningún arma de fuego, si el cliente de MLO no hubiera sido honesto y sincero con ellos. De hecho, el agente declaró que, en general, se sintió mal por tener que detener al cliente MLO debido a las infracciones, dado que se mostró tan comunicativo y colaborador con las fuerzas del orden.

En la vista, el cliente de MLO admitió que las armas de fuego estaban en su cobertizo. También admitió que su condición de delincuente convicto le prohibía específicamente poseer armas de fuego u otras armas. El único delito grave por el cual el cliente de MLO había sido condenado anteriormente era el delito grave subyacente de OWI 4to. El no tenia historia criminal fuera de OWI y ofensas relacionadas con trafico. No obstante, al poseer armas de fuego como delincuente, el cliente de MLO había violado su libertad condicional.

Con esto, el Juez de Derecho Administrativo (ALJ) determinó que el DOC había cumplido con su carga de probar una violación de la libertad condicional. Nunca se demostró que el cliente de MLO hubiera manejado él mismo las armas de fuego en ningún momento después de ser condenado y convertirse en delincuente y estar sujeto a sus normas de supervisión. Sin embargo, existió una violación. La siguiente cuestión era si la violación justificaba la revocación de la libertad condicional.

Al revocar la libertad condicional de una persona, dicha revocación sólo está justificada si, basándose en el delito original y la conducta interviniente, el ALJ considera que:

(1) el confinamiento es necesario para proteger al público de nuevas actividades delictivas por parte del cliente; o

(2) el cliente necesita un tratamiento correccional que puede proporcionarse de la forma más eficaz si está recluido; o

(3) depreciaría indebidamente la gravedad de la infracción si no se revocara la supervisión; y no existen alternativas apropiadas a la revocación (ATR).

Esto se conoce como los factores "Plotkin", basados en el caso State ex rel. Plotkin v. Dep't of Health & Soc. Servs., 63 Wis.2d 535, 544-45, 217 N.W.2d 641 (1974), Wis. Admin. Code § HA 2.05(7)(b)3.

Al dictar su decisión de no revocar la la libertad condicional del cliente de MLO, el ALJ observó que el cliente de MLO tenía 57 años y estaba en libertad condicional por OWI - la ofensa que resultó en su estado como un criminal. Sin embargo, el delito subyacente no comparte ningún nexo significativo con la violación en el procedimiento de revocación. No se alegó, ni siquiera se sugirió, que el cliente de MLO había consumido alcohol o cualquier otra sustancia en o alrededor del momento del incendio o sus interacciones con la policía. No hay alegaciones de OWI u otras alegaciones relacionadas con vehículos de motor.

La libertad condicional del cliente de MLO comenzó en abril de 2023. Desde su liberación a la comunidad, no hubo violaciones previas de sus reglas de supervisión comunitaria. Por el contrario, el cliente de MLO cumplió con la supervisión, se comprometió positivamente con su agente, y reflejó un ajuste general positivo mientras estuvo en libertad condicional. Tuvo una vivienda estable durante todo su tiempo en la comunidad, al menos hasta que el incendio se cobró su casa. También tenía un empleo estable, en la misma empresa desde hacía unos diez años. No tenía compañeros ni asociaciones antisociales. El Departamento de Libertad Vigilada no tuvo ningún problema con él durante su periodo de libertad condicional, incluido el consumo de alcohol o drogas. No planteó ninguna preocupación y había completado la evaluación de alcohol ordenada por el tribunal. De hecho, el Departamento de Libertad Vigilada declaró que había obtenido tan buenos resultados en el período de libertad condicional que solicitó al tribunal que se le concediera la libertad condicional anticipada, seis meses antes de lo previsto.

El ALJ prosiguió en su decisión afirmando lo siguiente al abordar los factores Plotkin antes mencionados:

"En general, el hecho de que un delincuente esté en posesión de un arma de fuego es una situación sumamente peligrosa que crea innumerables posibilidades de que se produzcan daños. Debido a la seriedad y naturaleza peligrosa de esa conducta, la revocación es ampliamente justificada como necesaria para no depreciar indebidamente la seriedad de la violación y para proveer protección pública de daño o riesgo de daño. También se observa que [cliente MLO] no tiene ninguna necesidad aparente de tratamiento en este momento; por lo tanto, no hay apoyo bajo Plotkin que la revocación se justifique para proporcionarle el tratamiento que sería más eficaz en un entorno confinado.

En última instancia, sin embargo, este es un caso muy singular y un conjunto de circunstancias que no justifica revocación of [MLO client’s] probation. [He] has been completely compliant with the department and his rules of supervision while in the community for over two years and on probation for nearly three. The only exception to this statement is the instant violation wherein [he] had been in possession of several long guns for an apparently extended period of time, while on probation. He was aware that he was not to possess firearms; however, it appears that he did not fully understand or appreciate the full extent of what it meant to possess those items. [MLO client’s] ignorance of the law or his rules of supervision is not a defense or mitigating consideration in this matter, but it is relevant to this decision. That is because [he] has been entirely forthcoming and cooperative with law enforcement and the department in regard to the violations. That he contested them here is not viewed as avoiding consequence, as he did not particularly contest any of the facts alleged in the report or by the department. In fact, [he] essentially self-reported the violation to … law enforcement [who] would not likely have been aware of the presence of firearms on the premises {MLO client] volunteering that information. After doing so, he remained compliant with law enforcement. While [MLO client’s] conduct is serious and he has at least been referred to new felony charges of being a felon in possession of a firearm, revocation is not necessary in this matter.

By the time this decision is final, [he] will have been in custody awaiting revocation for approximately four months. That period of time is a sufficient sanction for the proven conduct, if not in excess of what may be necessary to impart the severity of the offense on [him]. This was his first violation of any rule of community supervision. His adjustment was otherwise impeccable and stable over the course of years. He was honest to his own detriment but has appeared to be understanding of why the department has sought revocation. It does not appear that this incident is cause for concern regarding his ongoing relationship with the department or [his agent].

Finally, as previously mentioned, revocation is not supported by any treatment need that [MLO client] may have that is not being adequately addressed in the community. The conduct does not justify a lengthier term of incarceration for any need, much less treatment. [He] has not been directed to treatment by the department during his period of supervision and has not received any alternatives to revocation, based at least partially upon his lack of treatment needs. [He] should not be penalized with a term of confinement because, at least in part, he does not have an easily identifiable treatment need that he can be connected to services on.

It is therefore ORDERED that the probation of [MLO client] Dane County case 22CF*** is not revoked.”

However, as is becoming par for the court in revocation hearings in which the DOC loses, the DOC filed a barely one-page appeal seeking to overturn the above decision not revoking probation. This act, alone, kept MLO client in jail – on the continued probation hold – for at least another 21 days.

Then, 28 days after the DOC’s appeal was filed – and Attorney Mays filed a rebuttal to the DOC’s appeal the day the DOC appealed – the Administrator for the Division of Hearings and Appeals filed this brief decision.

“After review of this appeal pursuant to Wis. Stats. § 301.035, the Decision and Order of the Administrative Law Judge (ALJ) is Sustained for the following reasons:

The Department of Corrections (DOC) appeals the underlying decision not revoking [MLO client’s] probation supervision. The sole allegation was proven. To wit, on January 9, 2025, [MLO client] possessed firearms. They were discovered by law enforcement responding to a fire at his residence, at which time [MLO client] disclosed that there were rifles in his shed when asked whether there were any potentially flammable items nearby. Emphasizing [MLO client’s] previous excellent adjustment to probation and lack of evidence that he actually handled or used the long guns while on probation, the ALJ did not revoke probation, which would have returned [MLO client] to court for sentencing after revocation on the underlying offense of OWI (4th).

On appeal, the DOC requests reversal, emphasizing the danger of [MLO client] maintaining the firearms in an unlocked shed on his property. It submits that not revoking would unduly depreciate the seriousness of a felon in possession of firearms. In reply to the appeal, [MLO client’s attorney, Stephen Mays] argues that the underlying decision must be sustained. [Attorney Mays] notes the mitigating factors, including no violent criminal history, his truthfulness with the authorities to his own detriment, and his otherwise impeccable performance on probation to the point that the DOC had petitioned to discharge him early. On this de novo review, the record supports the decision.

This case presents unique circumstances making revocation unnecessary. In addition to the mitigating factors listed above, [MLO clients] is likely to have penal consequences as a result of being charged criminally for possessing the firearm, and he has now been in custody for nearly four months. Further, the violation bears no nexus to his underlying offense or criminal history.

Notably, OWI-related offenses constitute his only criminal history. The decision [not to revoke probation] is well-reasoned and supported by the record. It is sustained.”

So, while justice sometimes takes some time, if you have the right attorney, who is knowledgeable and well-versed in both the law and the criminal procedure, and is willing to fight on your behalf, justice can ultimately prevail as it did for her.

Attorney Stephen Mays successfully argued for the release of a client convicted of 1st Degree Intentional Homicide

by Mays Law | Jan 13, 2025 | Criminal Defense

In a case of first impression not only in Dane County, but in the State of Wisconsin as a whole, Attorney Stephen Mays successfully argued for the release of a client convicted of 1st Degree Intentional Homicide as a Party to the Crime from prison after serving 23 years in custody.

On February 19. 2001, our client was a party to the actions of another individual, wherein the other person caused the death of the victim by stabbing him 7 times. Our client knew the victim personally, had been to his home, knew his family and knew that he had a broken bedroom window. All of this knowledge was essential when it was decided that the killer and another accomplice should rob the victim of drugs they believed he had in his backpack at home. Because of our client’s knowledge and steps she took to confirm that the victim was home, and because she drove them to the victim’s residence, she aided the killer when he entered the bedroom, unbeknownst to her at the time, with a knife and stabbed the victim, causing his death. Our client and the killer were tried in Dane County, Branch 14, before the Honorable C. William Foust. Our client testified at trial in her own defense. More accurately, she lied at trial, casting herself as having no significant role in the crime and denying being present as the driver. She maintained her denials through the presentence investigation process, and at sentencing, Judge Foust endorsed the jury’s verdict and stated that he believed our client lied in her testimony. Thus, having been convicted of the most serious offense in Wisconsin law, Judge Foust imposed the required life sentence.

In Wisconsin, the law on sentences for those convicted of such a charge is that they receive a mandatory life sentence. The sentencing judge can then do 1 of 3 things: s/he can make the person never eligible for Extended Supervision (ES) (formerly known as parole); they can make them eligible for ES after serving a minimum of 20 years; or they can set a eligibility date some time after 20 years but short of never.

*The reason this case is the first of its kind in Wisconsin is because of the sentence structure stated above. That law went into effect in the year 2000. As such, there hasn’t been a single person convicted of 1st Degree Homicide who has been eligible to petition for release to Extended Supervision – mostly because no one previously sentenced had been given the minimum 20 year eligibility. Most have been given the maximum life sentences with no eligibility for ES. Some have been given the last option – 20 yrs, plus some additional time for eligibility. Our client was one of those. So was the killer – but he is not eligible until having served 20 years + 35 additional years.. So he’ll be a while yet ….

Getting, then, to this case, (one, incidentally, which Attorney Mays did not represent the client at the homicide trial itself, but was retained to file and argue the Petition for Release to Extended Supervision) then-Dane County Judge Foust sentenced our client to life in prison. He made her eligible for release to ES after serving 20 years + 3 years, for a total of 23 years in prison, before which she could petition the Court for release from her life sentence to ES. Once a person is granted such release, the remainder of the life sentence is commuted to ES (i.e., parole) – meaning, if a person is granted release to ES, they are on ES for the remainder of their life (i.e., the “new” life sentence – life on “parole”).

At a hearing on such a Petition for Release to ES, the petitioner (the person in prison arguing for release) carries the burden in the petition. As some background, the level of proof in any criminal case (in order to gain a conviction) is to the standard “beyond a reasonable doubt.” The legislature specified that the burden of proof for a person convicted of a Class A felony and seeking release on extended supervision is lower. There are two lower burdens of proof applicable in civil trials and, as here, in certain proceedings within the criminal law. The lower burden of proof is the preponderance of the evidence standard, which requires the litigant to demonstrate by the greater weight of credible evidence the certainty of his or her claim. The higher burden of proof is the clear and convincing standard, which requires evidentiary proof to a reasonable certainty by evidence that is clear and convincing. Hence, our client had to convince the Court, to a reasonable certainty by evidence which is clear and convincing, that she no longer presents a danger to the public. The statutory scheme requires the Court to determine whether now is the time that our client should be released to extended supervision. The legislature has made the public policy determination that sentencing courts should use discretion in fashioning a sentence that is based on the nature of the criminal offense, the public’s need for protection and the rehabilitative needs of the convicted defendant. Public policy requires a person convicted of a crime that carries a life sentence to serve a certain minimum number of years before being eligible for parole release.

At the hearing on our client’s petition (on Friday the 13th of December no less) the State argued that release should be denied, and a future date set for our client to meet additional goals or reach additional benchmarks of achievement or treatment/counseling, leading to a future conclusion that our client was no longer a risk to the public. At the hearing, much evidence (4+ hours worth) was presented in our client’s favor that she was not a risk to the public nor that there were any additional goals for her to achieve. The evidence at the hearing demonstrated, and the Court indeed held in its ruling, that our client met the necessary evidentiary standard and that no further efforts were necessary to safeguard the community or to rehabilitate our client prior to her release. Specifically, the evidence presented showed that our client sought opportunity, embraced counseling, and at every turn bettered herself throughout the majority of her 23 years in prison. She steadily maintained employment while institutionalized, having been employed with little interruption for 23 years. For over 12 years she oversaw the greenhouse and gardens. She had been continually employed in property maintenance. She participated as a mentor for new inmates and for mentally ill inmates. She was employed in painting and maintenance of murals. She also worked in programs within the community. She also sought to participate in therapy and counseling to address her needs. Mental health treatment options were nearly non-existent to female inmates when our client began her incarceration. Once available, she continuously engaged in therapy and counseling, including being the first inmate at Taycheedah to undergo EMDR (Eye Movement Desensitization and Reprocessing) therapy to treat PTSD. Our client also also experienced the negative side of imprisonment – she was the victim of a sexual assault committed by a prison guard. This event spurred her in her PTSD struggle and led to her EMDR therapy experience.

She also used her term of incarceration to gain an education. She earned a bachelor’s degree while in prison in Natural Science and Holistic Nutrition, an associate degree in Health and Wellness Consultation and another in Energy Balance Therapies. She also completed a two-year program and received a certificate for Building Maintenance.

The Court, in granting the Petition for Release to Extended Supervision, ruled as follows: “While there may be more she can achieve in prison over the next period of months or years, as clearly she is an achiever, there is nothing [our client] must achieve to be ready for her release. [She] has obtained an education, earned and saved money to support herself as she transitions into the community, and gained marketable skills that may provide or enhance employability. She has been substance free and recognizes the dangers of returning to the use of alcohol or drugs. She has been committed to treating her mental health issues within the institution, and to being committed to continuing in the community. [She] has built a record of giving to others within the prison community. She has earned a level of respect from the warden and others, and has a generous amount of support awaiting her in the community. [Her] crimes are heinous. The loss of [the victim’s] life is an event which still reverberates within the community of his loved ones. [Our client] testified credibly and with evident heartfelt remorse. She took full responsibility for her crime and, looking face to face with the survivors who she damaged, reluctantly asked for forgiveness.”

As such, the Court ordered that our client be released to extended supervision under the original sentence imposed by Judge Foust. She will now be supervised in the community by the Department of Corrections Division of Community Corrections for the rest of her life. The Court believes that the DOC will supervise her and require her to continue in her mental health treatment and follow all the general and specific rules of supervision that they establish for her. Due to the hard work and diligence by Attorney Stephen Mays, she was then released within 24 hours of the Court’s Order and was able to spend the first Christmas with her family in the last 23 years.

Pre-Charge Representation

by Mays Law | Oct 15, 2024 | Criminal Defense

The Importance of Pre-Charge Representation in Criminal Defense

When facing the possibility of criminal charges, many people feel overwhelmed and unsure of their next steps. A common misconception is that legal representation is only necessary after being formally charged with a crime. However, *pre-charge representation* can be a critical step in protecting your rights, potentially avoiding charges altogether, and mitigating future legal consequences.

What is Pre-Charge Representation?

Pre-charge representation refers to legal assistance provided before formal criminal charges are filed. This often occurs during the investigation phase of a criminal case, when law enforcement is gathering evidence, conducting interviews, and determining whether to bring charges against a suspect. During this time, prosecutors and police may already be considering a case against you, even if you haven’t been arrested or formally accused. A skilled criminal defense attorney can intervene at this early stage, advising you on your rights, guiding your interactions with investigators, and working to prevent charges from being filed.

Why Is Pre-Charge Representation Important?

Protect Your Rights Law enforcement officers are trained to gather evidence and build cases, and they may attempt to question you without informing you of your rights. A criminal defense attorney can ensure you don’t unintentionally incriminate yourself during questioning or give law enforcement unnecessary information. They can also prevent unlawful searches or seizures of your property, safeguarding your Fourth Amendment rights. Further, by invoking your Fifth Amendment right to counsel, you are likely to dissuade law enforcement from further attempts to interact with you.
Early Case Intervention A defense attorney can intervene before charges are filed, potentially influencing the prosecutor’s decision to pursue or drop the case. This could involve presenting exculpatory evidence or arguing that the investigation lacks probable cause or sufficient evidence to bring a successful prosecution and that further pursuing the matter would be a waste of time and resources. By addressing weaknesses in the prosecution’s case early, an attorney may convince prosecutors not to pursue charges or seek lesser charges. In many counties in Wisconsin there are programs for what it known as a deferred prosecution. This involves taking responsibility for any potentially unlawful conduct and abiding by terms of an agreement for a period of time after which a charge may be dismissed. This may be done after formal charges have been filed and the case has wound its way through the criminal justice system. This, of course, involves fully retaining an attorney and paying a substantial fee. By being proactive and hiring an attorney before charges are filed at a reduced fee, a pre-charged deferral is one possibility to avoid criminal charges altogether. Such a positive and swift outcome can not only spare our clients the stress and expense of defending against formal criminal charges, but can also spare them the humiliation of having an easily accessible public court record of a criminal prosecution having been brought against them no matter the outcome.
Guidance on Cooperation Pre-charge representation helps you navigate how much, if any, cooperation is in your best interest. In some cases, cooperation with law enforcement can lead to favorable outcomes, such as immunity or reduced charges. In other cases, it may expose you to unnecessary risk. An attorney can guide you on the best course of action for your specific situation. Attempting to handle such complex circumstances without the benefit of years of experience in gauging likely outcomes of varying degrees of cooperation could likely run a significant risk of greater legal jeopardy.
Negotiating Terms If charges are likely to be filed, a defense attorney can negotiate the terms of your surrender, reducing the chances of a public arrest or other disruptive actions. They may also be able to arrange for a signature bond rather than substantial cash bail or other conditions that minimize the impact of a potential arrest.
Mitigating Public Relations Consequences Criminal investigations can become public knowledge, potentially harming your reputation, career, or personal life. Having an attorney involved early can help manage any media attention or public scrutiny. They can work to protect your privacy and advise on how to handle any necessary public relations aspects of the case.

Examples of Pre-Charge Scenarios

White-Collar Crimes: When suspected of fraud or embezzlement, financial records may be under scrutiny before you are even aware of an investigation. An attorney can work with accountants and financial experts to present a strong defense during this stage. Drug Crimes: In drug-related investigations, law enforcement may rely on confidential informants or other means of surveillance ranging anywhere from intercepted phone records to GPS monitoring of vehicles. An attorney can assess the legality of such actions and challenge the constitutionality of improper police procedures. DUI Charges: If you are involved in an accident and suspected of driving under the influence, pre-charge representation can help ensure proper protocols are followed and provide sound and experienced advice on steps to minimize suspicion and avoid disclosing incriminating information to law enforcement.

When Should You Seek Pre-Charge Representation?

If you are aware that you are being investigated for a crime, or if you believe you may be under suspicion, it is crucial to consult with an attorney as soon as possible. Some common indicators that pre-charge representation may be needed include:

Law enforcement contacts you for questioning.
You receive a subpoena or search warrant.
You are aware of an internal investigation at your workplace.
You believe you may have been implicated in a crime by someone else.

Conclusion

Pre-charge representation can make the difference between being charged with a crime and avoiding prosecution altogether. By involving an experienced criminal defense attorney at the earliest stages of an investigation, you are taking proactive steps to protect your rights, defend your reputation, and reduce the potential consequences of criminal charges. If you suspect you are under investigation or have been contacted by law enforcement, don’t wait until it’s too late. Reach out to the experienced and qualified criminal defense attorneys at Mays Law Office, LLC. at (608)257-0440, for pre-charge representation and protect yourself from the outset.

The Year 2024 Started Off With A Bang Due To Incredible Advocating By Attorney John Orth

by Mays Law | Mar 5, 2024 | Criminal Defense

Sometimes clients can be their own worst enemies. And when acts of self-sabotage occur, that is when patience, compassion and persistence are at a tremendous premium. In a recent post, Attorney John Orth reported the following:

“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.”

Sounds like a happy ending? Not so fast. Between the writing of the above narrative and the next court date at which this superlative disposition was to be formalized, R.A. absconded from her treatment facility after less than two weeks and resumed intensive drug use. Upon learning this, Attorney Orth immediately contacted R. A. and recommended that she turn herself in prior to the next court date as the best first step to repaving the way to reviving the settlement that he had previously secured. R. A. did not follow Attorney Orth’s recommendation and instead committed seven more felony retail thefts.

As is inevitably the case, R.A. was eventually picked up and placed on a probation hold and revocation proceedings were initiated once again. Attorney Orth was able to again secure an alternative to probation revocation in the form of supervised drug abuse treatment. However, this outcome would be contingent on the prosecuting attorney’s agreement to not pursue imprisonment on any of the pending charges. Given the circumstances and chronic nature of R.A.’s criminal history, this seemed unlikely. Yet that is exactly what happened. While the prosecution had initially revoked its previous agreement upon learning of R.A.’s latest crime spree, Attorney Orth was able to work with the Department of Corrections and the District Attorney’s Office to craft a solution that adequately satisfied both the concern for public welfare and R.A.’s treatment needs. R.A. is presently participating in an intensive treatment program. Upon successful completion of this program all pending charges will be resolved with a non-prison disposition. Although, as we know from experience, things don’t always go as planned.

Now, let’s consider the results achieved for client E.R. Following a highly contentious separation from his wife, E.R. was arrested and charged with felony first degree reckless endangering safety from an incident in which he was alleged to have deliberately cut the gas line at his ex-wife’s home in what the prosecution viewed as an attempt to end the lives of his ex-wife and children. The crime of first degree reckless endangering safety is defined by Wisconsin law as follows:

1. The defendant endangered the safety of another human being.

2. The defendant endangered the safety of another by criminally reckless conduct.

“Criminally reckless conduct” means the conduct created a risk of death or great bodily harm to another person; and the risk of death or great bodily harm was unreasonable and substantial; and the defendant was aware that his or her conduct created the unreasonable and substantial risk of death or great bodily harm.

“Great bodily harm” means 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.

3. The circumstances of the defendant’s conduct showed utter disregard for human life. In determining whether the circumstances of the conduct showed utter disregard for human life, consider these factors: what the defendant was doing; why the defendant was engaged in that conduct; how dangerous the conduct was; how obvious the danger was; whether the conduct showed any regard for life; and all other facts and circumstances relating to the conduct.

E.R. acknowledged tripping over a gas line while visiting the property but fastidiously denied that he caused any damage intentionally. Certainly a simple accident could not constitute “criminally reckless conduct” as described above. Knowing that an accidental tear could be distinguished from and intentional cutting, Attorney Orth enlisted the assistance of an expert from the National Association of Firearm and Tool Mark Examiners and was ultimately able to convince the prosecuting attorney that no crime at all had been committed resulting in the dismissal of the first degree reckless endangering safety charge.

And then there is client G.T., a U.W. Madison student. G.T. had a not-so-great evening recently. Following a bit more imbibement than good judgment would recommend, G.T. woke up to find that he had been issued a criminal charge of disorderly conduct. It turns out that passing out in a stranger’s front lawn can be viewed as criminally disturbing behavior. Given G.T.’s relative youth and lack of any criminal history, it would seem a shame to have G.T.’s reputation marred by even a criminal charge being filed, much less a conviction being sought. In such situations it is critical to have experienced and aggressive representation that knows when and how to intervene to get the best possible outcome. Where some attorneys might simply wait for the court date assigned to G.T., enter a not guilty plea and then attempt to negotiate a favorable disposition at a later time, Attorney Orth took a more proactive approach. Knowing that police reports and a charging recommendation would be filed with the District Attorney’s Office within the few weeks following the incident, he made contact with the District Attorney’s Office on a daily basis until the case was under review for a charging decision. When that occurred Attorney Orth was able to arrange a meeting with the Assistant District Attorney who was reviewing the case. Following that meeting charges were declined altogether and G.T. was spared with unpleasantness and public humiliation that comes with defending against criminal charges.

Attorneys Steve Mays and John Orth Continue to Advocate Great Deals For Their Clients in 2023

by Mays Law | Oct 20, 2023 | Criminal Defense

Some recent success stories from the criminal defense side of Mays Law Office, LLC.

In the Village of Marshall four teenagers were charged with one count each of disorderly conduct and damage to public property. The charges arose from an incident in which a public park’s bathrooms and concession stand were vandalized. An onlooker flagged down an officer and reported what she had just seen. Four of the teenagers were identified and subsequently questioned by the officer. Each one gave conflicting and shifting accounts of what occurred. The only consistency is that each one denied being involved and suggested that the others were responsible. A little over a week prior to the matters proceeding to trial, Attorney John Orth was retained to represent one of the teens. After obtaining police reports Attorney Orth made contact with the prosecuting attorney. Her position was that given the fact that no one was accepting any responsibility, she would not be offering any plea deals or concessions and simply proceed to trial and let the judge decide which, if any, of the teens were being truthful. When the trial was about to commence, Attorney Orth requested a meeting with all of the parents present. After a rocky start with each of the parents being angry in varying degrees with their own children, the other children, and the police, Attorney Orth set about seeking some common ground, common sense, and a unified plan for how to proceed. As always, the number one objective is to avoid convictions and sometimes that requires creativity, flexibility, and persuasion. After some back and forth between the prosecuting attorney and the group of parents, Attorney Orth was able to reach a solution that was beneficial to all involved. Rather than proceeding to trial and having the judge try to sort out the truth, Attorney Orth was able to convince the prosecuting attorney to agree to hold the charges open for 60 days. During that time each of the teens would agree to perform eight to ten hours of community service for the Parks Department and all of the families would split the relatively modest restitution for repairing the damage four ways. Upon fulfilling these obligations, all charges were dismissed. An event that began with palpable anxiety and angry grumbling ended with a group of families lightheartedly chatting and catching up.

Attorney Stephen Mays was contacted by the distraught mother of a 17-year-old boy, ND, who was being held in the county jail for days pending a bail hearing before a court commissioner. He was being charged with felony reckless endangering of safety for allegedly driving at a speed in excess of 115 MPH in a high-traffic business district with a 35 MPH speed limit. While ND’s conduct may have been impulsive and perhaps reckless (two things teenagers often are), Attorney Mays was determined not to have a young man be saddled with a felony conviction that could haunt him for the rest of his life. By focusing on the positive attributes in ND’s life – great grades, being in the process of obtaining a pilot’s license, working multiple jobs – Attorney Mays we able to convince the prosecuting attorney that this is a promising young man with a bright future that would be all but destroyed by a felony conviction and greatly hampered by any conviction. Attorney Mays got the charge reduced to a misdemeanor charge of negligent operation of a motor vehicle and secured a deferred prosecution agreement ultimately resulting in dismissal of the charge. In the end, ND won’t have so much as even a speeding ticket to show for this incident.

Following a three-month long intensive investigation by the Federal Drug Enforcement Agency working in conjunction with local law enforcement, GV was arrested in a sting operation executed by the Wisconsin State Patrol. The investigators obtained warrants to track all of GV’s movements by GPS and ultimately determined that a storage unit was the nexus of his activities and a warrant for its search was obtained. While the State Patrol was detaining GV in a traffic stop that ultimately led to his arrest for misdemeanor possession of cocaine, the search warrant for the storage unit was executed. Among other evidence, agents seized an entire pound of cocaine. Initially charged in state court for simple possession of cocaine while the evidence from the storage unit was being processed, GV was referred by a trusted friend to Attorney Orth for representation. Given the overwhelming strength of the evidence and the fact that law enforcement methodically followed proper procedures and secured valid warrants every step of the way, the best strategy was to work out the best deal possible. And to do so for not only the current misdemeanor charge, but to begin negotiations on the upcoming felony possession with intent to deliver while there was still a possibility to wrap that more serious charge into a state court agreement. Were it to be filed in the Federal District Court, GV would be facing sentencing guidelines that would ensure a lengthy prison sentence given the amount of cocaine seized. Ultimately, Attorney Orth was able to convince the prosecutor to agree to impose but stay a two-year prison sentence and instead place GV on probation for three years. One pound of cocaine and not a day in prison – no small feat.

LR was charged with felony stalking of underage victims. The alleged victims in this case were his step-grandchildren – the children of LR’s second wife’s son and his wife. During the height of the COVID-19 pandemic, the children’s parents had concerns about their grandmother’s and LR’s level of safety precautions and drastically reduced the amount of exposure LR and his wife were allowed to have with the children. This conflict ultimately led to a souring of relations between the two families and LR and his wife were told to have no contact with them. However, given that all parties live in the same small town, incidental contact would be practically inevitable. In instances in which that would happen, LR found it to feel awkward and downright mean spirited to ignore the children. Instead, he would simply wave or say hello. These seemingly innocuous gestures incensed the children’s parents. And as often unfortunately happens, what might have been a minor and easily correctable dispute turns into a potentially life altering event when law enforcement is brought into the picture. Given the serious charge LR was now facing, he turned to Mays Law Office for assistance. Over the course of nearly three years of persistent advocacy, investigation and negotiation, Attorney Mays was successful in convincing the prosecuting attorney that the allegations reported by the parents were, in fact, simply trumped up, concocted out of sheer anger and lacking any real merit. Throughout that time, Attorney Mays made it perfectly clear that he would absolutely not settle for anything less than outright dismissal. And in the end, that’s exactly what he secured for LR.

Mays Law Office is proud of the results that they continually get for their clients. This kind of strong advocacy comes in many forms that can only be mastered with experience and a strong reputation. Attorneys Mays and Orth have more than 45 years of combined experience defending their clients in criminal matters with superb results. Contact them today for a free consultation.

What is Wisconsin’s Implied Consent Law?

by Mays Law | Aug 1, 2023 | Criminal Defense

All drivers in Wisconsin are subject to the state’s “implied consent” law. This law comes into play when the police pull you over on suspicion of driving under the influence (DUI); and if you violate the state’s implied consent law during your traffic stop, this can have serious consequences.

Not only can it have serious consequences in your DUI case, but you can also face charges under Wisconsin’s implied consent law. While Wisconsin’s DUI laws and the implied consent law go hand-in-hand, an implied consent violation is its own stand-alone offense. This means that even if you aren’t guilty of DUI, you can still be found guilty of an implied consent violation. As we discuss below, implied consent violations carry significant penalties—and, again, these penalties apply regardless of whether you are guilty of DUI.

What is Wisconsin’s Implied Consent Law

Wisconsin’s Implied Consent Law: An Overview

The first step toward understanding Wisconsin’s implied consent law is understanding what is meant by “implied consent.” Section 343.305(2) of the Wisconsin Statutes defines this term as follows:

“Any person who . . . operates a motor vehicle upon the public highways of this state. . . 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, controlled substances, . . . or other drugs . . . when requested to do so by a law enforcement officer [] or when required to do so under [Wisconsin’s DUI laws].”

In short, the act of driving on Wisconsin’s public roads acts as your voluntary consent (or implied consent) to a breath, blood, or urine test when the police pull you over on suspicion of DUI. If you refuse to take a breath, blood, or urine test when requested to do so, this can be prosecuted as an implied consent violation. However, there are conditions on your obligation to submit to testing (most often a breath test conducted using a breathalyzer device); and, if the police officer who pulls you over does not satisfy all of these conditions, then you may be within your right to refuse to provide a sample.

For example, Section 343.305(4) of the Wisconsin Statute states that the officer must provide the following information when requesting a breath, blood, or urine test:

“You have either been arrested for an offense that involves driving or operating a motor vehicle while under the influence of alcohol or drugs, or both, or you are the operator of a vehicle that was involved in an accident that caused the death of, great bodily harm to, or substantial bodily harm to a person, or you are suspected of driving or being on duty time with respect to a commercial motor vehicle after consuming an intoxicating beverage.
“This law enforcement agency now wants to test one or more samples of your breath, blood or urine to determine the concentration of alcohol or drugs in your system. If any test shows more alcohol in your system than the law permits while driving, your operating privilege will be suspended. If you refuse to take any test that this agency requests, your operating privilege will be revoked and you will be subject to other penalties. The test results or the fact that you refused testing can be used against you in court.
“If you take all the requested tests, you may choose to take further tests. You may take the alternative test that this law enforcement agency provides free of charge. You also may have a test conducted by a qualified person of your choice at your expense. You, however, will have to make your own arrangements for that test.
“If you have a commercial driver’s license or were operating a commercial motor vehicle, other consequences may result from positive test results or from refusing testing, such as being placed out of service or disqualified.”

Wisconsin’s implied consent law includes specific testing requirements as well. These requirements range from specific procedures for breath tests and blood draws to certification requirements for individuals who conduct breath, blood, and urine analyses. Failure to comply with the applicable requirements can render the test results invalid or unreliable—and raising questions about the validity or reliability of a breath, blood, or urine test can be a key defense strategy in many DUI cases.

Consequences of Violating Wisconsin’s Implied Consent Law

As mentioned above, if you violate Wisconsin’s implied consent law by refusing to submit to testing (when the police have met all applicable requirements), you can face significant penalties regardless of whether you are ultimately found guilty of DUI. In Wisconsin, the penalties for implied consent violations can include:

Driver’s license suspension (12 months)
Mandatory installation of an ignition interlock device (IID)
Alcohol assessment and treatment

If sentenced to an IID or alcohol assessment and treatment, you will be required to comply at your expense; and, if you lose your driver’s license, you will have to pay to get your license reinstated when the suspension ends.

Even more importantly, if you unlawfully refuse a breath, blood, or urine test, prosecutors can use your refusal against you in your DUI case. Essentially, they can say that the fact that you refused testing shows that you knew you were too drunk to drive. Of course, this isn’t necessarily the case, and most Wisconsin residents aren’t familiar with the implied consent law’s requirements. This is a fact (among many others) that an experienced defense lawyer may be able to use in your favor. With substantial fines, surcharges, and possibly even jail time on the table, you will need to work with an experienced defense lawyer to fight your DUI (and your implied consent violation) by all means available.

Discuss Your Case with an Experienced DUI Defense Lawyer in Madison, WI

If you are facing the consequences of refusing a breath, blood, or urine test during a DUI stop in Wisconsin, we encourage you to contact us promptly for more information. Call 608-257-0440 or request a free consultation online to speak with an experienced DUI defense lawyer in Madison, WI as soon as possible.

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