Wisconsin OWI Case: Should I Testify?

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If you have been charged with operating while intoxicated (OWI) in Wisconsin, should you testify in court? Or, is it better to stay silent and rely on other means of defense? Just like requesting a jury trial—which we discussed in last month’s post—the short answer is, “It depends.”

Understanding Your Right to Testify in Wisconsin

First, let’s talk about your right to testify. When you are facing an OWI case in Wisconsin, you have the right to testify in your own defense. You have the right to take the stand, and you have the right to explain what happened from your point of view—with the goal of convincing the judge or jury that a “Guilty” verdict is not warranted.

Whether you take the stand is completely up to you. While you have the right to testify if you choose to do so, the prosecution cannot force you to face the judge or jury under oath. However, if you choose to testify, then the prosecution does get the right to conduct a cross-examination. You can assert your privilege against self-incrimination during cross-examination, but you cannot refuse to answer prosecutors’ questions entirely.

When Does It Make Sense to Testify in an OWI Case?

With this in mind, when might you want to testify? Testifying can make sense in various circumstances. For example, it may be worth testifying in your OWI case if:

  • You Need to Set the Record Straight – If you made self-incriminating statements during your OWI arrest, taking the stand could provide an opportunity to set the record straight. Did the arresting officer ask confusing questions? Did you get flustered? Did you feel pressured to say something that you didn’t mean? If prosecutors are already planning to use your own words against you, then testifying could make sense.
  • You Weren’t Driving Under the Influence – If you are absolutely certain that you weren’t driving under the influence, then you don’t have anything to hide. While you will still need to be thoroughly prepared to deal with the prosecution’s cross-examination, this could be a situation in which it makes sense to testify as well.
  • The Prosecution’s Evidence is Limited – It could also be worth taking the stand if the prosecution’s evidence is limited. For example, if the prosecution’s case largely hinges on your arresting officer’s testimony, telling your side of the story could be enough to convince the judge or jury that the prosecution hasn’t proven your guilt beyond a reasonable doubt.

It won’t always make sense to testify in these scenarios—and these aren’t the only scenarios in which it may make sense to testify on your own behalf. Rather, these are examples of situations in which it may make sense to take the stand in some cases. Due to the potential risks involved with taking the stand, you need to make an informed decision about whether to testify, and this means that you should discuss your case with an experienced OWI defense attorney.

Why Wouldn’t You Take the Stand in Your Own Defense?

Now that we’ve covered some of the scenarios in which it can make sense to testify, why wouldn’t you take the stand in your own defense? Simply put, taking the stand can be risky. As you evaluate your options, it will be important to consider factors such as:

  • You Might Not Perform as Well as You Expect To – Almost everyone gets nervous on the witness stand. No matter how much you prepare, and no matter how confident you are in what you are planning to say, testifying under oath when you have a lot at stake can be overwhelming. If you say the wrong thing, or if you come across as being scared or nervous, this could have adverse consequences for your defense.
  • You Will Need the Judge or Jury to Believe You – While some forms of evidence are undeniable, testimony is not. No matter how honest you are on the stand, there is a chance that the judge or jury simply won’t believe you. If this happens, testifying could have the opposite of its intended effect.
  • Testifying Means Submitting to Cross-Examination – As we mentioned above, if you choose to testify, you will be subject to cross-examination. Many prosecutors are very good at what they do, and they know how to get defendants to contradict themselves and say things that make them appear untrustworthy.

Taking the stand can entail other risks as well. Understanding the specific risks in your case requires a careful look at the facts involved. Once again, an experienced OWI defense attorney can help, and we strongly recommend speaking with an attorney before you make any decisions about how to approach your case.

What Are Your Options if You Don’t Testify?

Let’s say you choose not to testify. If you don’t take the stand, what can you do to fight your OWI? While the options you have available depend on the facts of your case, some examples of potential options include:

  • Seeking to have the prosecution’s evidence excluded from trial based on a lack of reasonable suspicion or probable cause.
  • Challenging the reliability of your field sobriety test (FST) results or your blood alcohol concentration (BAC) reading.
  • Showing that the prosecution’s evidence is insufficient to prove all elements of your OWI charge beyond a reasonable doubt.
  • Negotiating a plea bargain that reduces your OWI to a reckless driving charge (commonly referred to as a “wet reckless”).
  • Entering into one of Wisconsin’s diversion programs, which allows you to avoid a conviction regardless of the facts of your case.

Discuss Your Case with an OWI Defense Lawyer at Mays Law Office in Madison, WI

Do you have questions about testifying in your Wisconsin OWI case? If so, we invite you to contact us for a free and confidential consultation. To discuss your case with an experienced OWI defense lawyer in Madison, give us a call at 608-257-0440 or tell us how we can reach you online today.

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