Wisconsin is among the minority of states where sobriety checkpoints are illegal. Section 349.02(2)(a) of the Wisconsin Statutes requires individualized reasonable suspicion before the police can stop a vehicle, and evidence from an unlawful stop can be suppressed. Mays Law (Madison/Middleton) builds custom-tailored OWI defenses based on a comprehensive case analysis that starts with scrutinizing the stop itself.
The U.S. Supreme Court has held that sobriety checkpoints are constitutional, and most states use checkpoints to catch drunk drivers on Friday and Saturday nights. But, Wisconsin does not. Wisconsin is one of just a dozen states that has banned police from using checkpoints for operating while intoxicated (OWI) enforcement.
While you won’t get arrested at a sobriety checkpoint in Wisconsin, you can still get an OWI as the result of a normal traffic stop. Police departments in Wisconsin might not be able to use checkpoints, but they can (and do) increase their patrols during times when people are most likely to be drinking and driving. This approach is completely legal; and, as a result, if you are facing an OWI charge in Wisconsin, determining what defenses you have available starts with scrutinizing the circumstances that led to your stop and arrest.
The Wisconsin Statute That Bans Checkpoints
Sobriety checkpoints are banned under Section 349.02(2)(a) of the Wisconsin Statutes. The relevant language in the statute states:
“[A] police officer . . . may not stop or inspect a vehicle solely to determine compliance with [the OWI statute] unless the police officer, sheriff, deputy sheriff, traffic officer or motor vehicle inspector has reasonable cause to believe that a violation . . . has been committed. This paragraph does not limit the authority of a police officer . . . to make an arrest or issue a citation for a violation of [the OWI statute] observed in the course of a stop or inspection made for a lawful purpose.”
The requirement for, “reasonable cause to believe that a violation . . . has been committed,” prevents the police from conducting sobriety checkpoints—which necessarily involve stopping drivers without reasonable cause. Crucially, this language also prevents the police from stopping drivers at random, based on racial or ethnic profiling, or for other unlawful reasons.
As a result, OWI traffic stops can be—and often are—unlawful. If your OWI stop was unlawful, this could render the state’s evidence against you inadmissible in court. In this scenario, filing a suppression motion can be a key defense strategy, and it can potentially result in pre-trial dismissal.
What Police Can and Can’t Do During a Wisconsin Traffic Stop
Not only do the police need to comply with the law when stopping drivers, but they also need to comply with the law once they have pulled someone over. Illegal police conduct during a traffic stop can potentially serve as grounds for a suppression motion as well. With this in mind, here are some things that the police can and can’t do during a Wisconsin traffic stop:
- The police can ask for your driver’s license and registration (and you are generally required to provide them).
- The police can ask you if you have been drinking, but they cannot continue to press for answers if you assert your right to remain silent.
- The police can look into your vehicle and ask for your consent to conduct a search.
- The police can search your vehicle if you consent, and they can seize any evidence in plain view with or without your consent.
- The police can ask you to take the breathalyzer and field sobriety tests (FSTs), but they cannot force you to do so (though drivers must comply with Wisconsin’s implied consent law).
If a police officer determines that there is probable cause to make an OWI arrest based on the evidence that is available, the officer can conduct an arrest and proceed with further processing. However, if probable cause is lacking, the officer must inform the driver that he or she is free to leave.
When a Stop or Arrest Is Unlawful: How OWI Suppression Motions Work
If you are facing an OWI charge in Wisconsin and the police violated your rights during your traffic stop or arrest, the state’s evidence against you could be inadmissible in court. Without admissible evidence, prosecutors won’t be able to prove your guilt beyond a reasonable doubt.
But, as a defendant, it is up to you to assert your legal rights. To keep the prosecution’s evidence out of court, you must file a suppression motion prior to trial. If your suppression motion is successful, then the next step may be to file a motion to dismiss.
Filing a suppression motion is a complex process. You must be able to prove that the police violated your rights, and you must be able to prove that prosecutors obtained their evidence against you as a result of the violation. As a result, if you have grounds to file a suppression motion, it will be important to have an experienced OWI defense lawyer on your side.
Other Pre-Trial Defenses in a Wisconsin OWI Case
Along with defenses based on unlawful traffic stops and arrests, defendants in Wisconsin OWI cases may be able to assert various other pre-trial defenses as well. These include defenses based on:
- Improper breathalyzer or FST procedures
- Inaccurate or unreliable blood alcohol concentration (BAC) reading
- Withholding of exculpatory evidence
- Violation of the right to a fair and speedy trial
- Other substantive and procedural flaws in the prosecution’s case
An experienced OWI defense lawyer will be able to evaluate all potential pre-trial defenses based on the facts of your case and seek to have your OWI charge dismissed before trial if warranted. If seeking pre-trial dismissal is not a viable option, your lawyer can help you make an informed decision about whether to seek a plea bargain, enter into a diversion program, or fight your OWI at trial.
Schedule a Free Consultation with an OWI Defense Lawyer at Mays Law Today
If you are facing an OWI charge in Madison or Middleton, we encourage you to contact us promptly for more information. Call 608-305-4518 or contact us online to schedule a free consultation with an OWI defense lawyer at Mays Law today.