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

by Mays Law Office | Sep 1, 2021 | DUI Defense

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?

by Mays Law Office | Jul 1, 2021 | DUI Defense

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.