By Attorneys Stephen E. Mays and Halle Geiger
Every person accused of Operating While Intoxicated (OWI) has constitutional and statutory rights. When law enforcement fails to follow those rules, the consequences can be significant.
In a recent OWI First Offense case, Mays Law Office filed three separate motions asking the court to suppress critical evidence:
- The unlawful arrest.
- An improperly obtained Preliminary Breath Test (PBT).
- The blood test — because our client’s legally guaranteed alternative chemical test was never provided.
The judge granted all three motions, and the case was dismissed during one of the shortest motion hearings we’ve ever experienced.
The Traffic Stop
Our client, whom we’ll call JM, was stopped for an alleged speeding violation.
While speaking with JM, the officer claimed to notice two possible signs of impairment: an odor of alcohol and somewhat slurred speech. The officer then asked JM to perform standardized field sobriety tests.
Overall, JM performed well.
The officer claimed JM showed:
- Six of six clues on the Horizontal Gaze Nystagmus (HGN) test.
- Two of eight clues on the Walk-and-Turn (WAT) test.
- Zero of four clues on the One-Leg Stand (OLS) test.
After the field sobriety tests, the officer retrieved a Preliminary Breath Test (PBT) device from his squad car. Rather than asking whether JM would agree to take the test, the officer simply explained what the device was, moved it toward JM’s mouth, and said, “Here.”
The PBT indicated the presence of alcohol.
JM was then arrested and read Wisconsin’s Informing the Accused form, which explains the rights of drivers arrested for an OWI offense.
At that point, JM specifically requested a breath test instead of a blood draw.
The officer responded that blood was the department’s primary test, but assured JM he could “absolutely” take a breath test afterward.
JM submitted to the blood draw.
The promised breath test never happened.
Instead, JM was taken to jail and cited for:
- Operating While Intoxicated – First Offense
- Operating with a Prohibited Alcohol Concentration
Motion #1: The Arrest Was Not Supported by Probable Cause
Our first motion challenged the legality of JM’s arrest.
Although the officer claimed to observe two clues on the Walk-and-Turn test, one of those clues was scored incorrectly.
The officer claimed JM “stopped while walking” after completing the turn. But that’s exactly what the standardized testing instructions require. Pausing after completing the turn is not a clue of impairment.
Because the Walk-and-Turn test was improperly scored and JM showed no clues on the One-Leg Stand test, we argued the field sobriety tests actually supported innocence—not intoxication.
Without properly administered and accurately scored field sobriety tests, the officer lacked probable cause to arrest JM. In fact, the information gleaned from these tests could not even amount to the lower “probable cause to believe” standard to request a PBT, an issue addressed by Motion #2.
Motion #2: The Preliminary Breath Test Was Not Voluntary
Our second motion focused on Wisconsin’s Preliminary Breath Test statute, and dovetailed nicely from the first motion to this one.
Wisconsin law allows an officer to request that a driver submit to a PBT before an arrest when the officer has the required level of probable cause.
That distinction matters.
The law permits a request—not a command. Not an order to do it.
In JM’s case, the officer never asked.
Instead, he simply produced the device, explained it, moved it toward JM’s mouth, and said, “Here.”
We argued that a reasonable person in JM’s position would believe the test was mandatory rather than optional. Because the statute requires a request, we asked the court to suppress the PBT results, as it was coerced.
Motion #3: The Officer Failed to Honor JM’s Right to an Alternative Test
Our third motion involved one of the most overlooked protections in Wisconsin’s Implied Consent law.
After an arrested driver completes the officer’s requested chemical test, Wisconsin law guarantees the driver the opportunity to obtain an alternative chemical test or arrange for an additional independent test.
This protection exists to ensure fairness and is considered an important component of statutory due process.
JM clearly requested a breath test after being informed that blood would be the primary test.
The officer responded that JM could “absolutely” take the breath test after the blood draw.
But after the blood was drawn, the officer never followed up.
Instead, he transported JM directly to jail.
Wisconsin courts have already addressed this exact situation.
In State v. Renard, the Wisconsin Court of Appeals held that once a driver requests an alternative chemical test, the arresting officer has a duty to make a diligent effort to provide it. Failing to do so violates the driver’s statutory rights and requires suppression of the primary chemical test.
JM’s case closely mirrored those facts.
The “Hearing”
Attorneys Stephen Mays and Halle Geiger thoroughly prepared for the hearing.
They reviewed multiple National Highway Traffic Safety Administration (NHTSA) training manuals, body camera footage, squad camera videos, and detailed timelines before walking into court ready to present their arguments.
The hearing was scheduled to begin at 1:00 p.m.
The State had subpoenaed the arresting officer, who was the only witness needed to oppose the motions.
He never appeared.
After waiting approximately ten minutes, the judge ruled from the bench:
“If the defendant hadn’t shown up, I would have no choice but to find him in default. And what’s good for the goose is good for the gander. So I grant all three defense motions.”
Prior to doing so, the judge did state that if the assertions in the 3rd motion were factually accurate (which, of course they were – having been taken directly from the videos) he was inclined to grant that motion anyway had there been a hearing.
So 12 minutes into the “hearing,” the court granted all three motions and dismissed both the OWI and the PAC citations.
Why This Case Matters
This case is about much more than one favorable outcome.
It demonstrates why every OWI case deserves a careful review by experienced defense counsel. Police officers must follow the law just as citizens must. When procedures aren’t followed, courts have both the authority and the responsibility to enforce those rules.
At Mays Law Office, our team identified multiple legal issues, prepared extensively, and stood ready to present them in court. Although the hearing ended before testimony was taken, the result reflected the importance of thorough preparation and holding the State to the same standards expected of every defendant.
Justice works best when the rules apply equally to everyone — and as the judge chided, “What’s good for the goose is good for the gander!”
And Attorneys Mays and Geiger were pleased to deliver this very favorable outcome to our client in record time!
Facing an OWI or PAC Charge in Dane County? Talk to Mays Law Office.
If you have been arrested for an OWI in Madison, Middleton, or anywhere in Dane County, the details of the stop — the field sobriety tests, the PBT, the chemical test, and how your rights were explained — can decide the outcome. We offer a free, confidential consultation to review exactly what happened in your case. Learn more about how we defend these cases on our OWI / DUI defense page, or contact us and tell us how we can reach you.
This article describes an actual case handled by Mays Law Office; the client’s name has been abbreviated to protect privacy. Every case is different, and past results do not guarantee future outcomes. This article provides general legal information and is not legal advice. Consult a licensed Wisconsin attorney about your situation.