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Will I go to jail for a DUI/OWI/Drunk Driving?

January 24, 2017 Leave a comment

I hear this question all the time. Unfortunately, like most questions people ask lawyers, the answer is, “It depends.” It depends on a great many variables. While you are waiting in police custody to be released to a responsible party or worse while you sit in jail waiting to appear in front of the intake court, you are probably not calmly and methodically working through the logic of the situation. The fact is, your mind is racing because ever since you saw the lights of the squad car in your review mirror you’ve asked yourself a great many questions you may not know the answer to. “Why was I pulled over?”  “Will I lose my job or my license?” and the subject of this post: “Am I going to jail?”

Regardless of whether this is a repeat offense, you may spend the night in jail, or at least 12 hours, if you have no one to pick you up. If you are accused of a repeat offense, you may be held for court if the court fast tracks these cases. Otherwise you will be given a date to return to the intake court and released. The intake court determines the conditions of your release which may include cash bail.

Let’s start with the guarantees. If you are ultimately acquitted by a judge or jury, if the case is dismissed because of successful motion practice or if your attorney is able to negotiate and amendment of the charge, you are definitely not going to jail. You will not be able to get any of these results without an attorney at your side.

In Wisconsin, a first offense is not criminal and you cannot be sentenced to serve time in jail on a first offense. If you fail to pay your fine, the court might issue a warrant for your arrest which could result in you serving an alternate jail sentence, so pay that fine on time.

If you are convicted of a repeat offense, Wisconsin law mandates a jail sentence some cases are classified as felonies (since January 1st 4th offenses and greater) and you may enjoy the hospitality of the Wisconsin Prison System.

Without question, regardless of the severity of the offense, an OWI conviction can be a life changing event. Even if you think you don’t have a chance, you should seek the advice of competent counsel. It is always wise to get as much information as possible before you make an important decision. Most lawyers who practice in this area will not charge you for a consultation and you are likely to get valuable insights.

Stay safe,

Eric

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What if I failed the Field Sobriety Tests?

January 18, 2017 Leave a comment

It’s the middle of the night. You are driving home from a local tavern or a buddy’s house. You’re tired and looking forward crawling into your nice warm bed. Much to your surprise, you see the lights of a police car in your rear view mirror. What was a nice evening, has just turned into a nightmare. You could lose your license, your job…even your freedom because the officer suspects you of driving under the influence. You stop,  and after a few words with the officer (perhaps he smells that drink you had before you left), you are standing at roadside trembling with fear, when he asks you to perform field sobriety tests, some of which you couldn’t do on your best day. It’s One o’clock in the morning after a few drinks and you are far from your best. Are you doomed? Is it all over now? For many people this is the beginning of the end. But it doesn’t have to be.

 

First and foremost: This is not the time to get indignant. Be polite and cooperative with the officer. You don’t score any points by copping an attitude. The officer may take note of your good attitude in his report. He will most definitely mention it if you were belligerent. A bad attitude can affect the outcome of your case. Judges and prosecutors do not make good offers to defendants who are abusive to arresting officers. If you choose to take your case to trial, you will look like an angry drunk to the jury if you lip off to the officer.

There is quite a bit a good attorney can do, despite apparent poor performance on field sobriety tests. Through cross examination it is possible to chip away at what might appear to be a rock solid case due to field sobriety test results. The officer will undoubtedly report that your speech was slurred, deliberate or thick tongued. The officer has never met you before and has never heard you speak! Maybe you talk that way all the time. You were likely asked to walk a straight line while keeping your feet in a heal-to-toe position. You might make one mistake on this test and have it count as a failure. There are several elements to this test. You may have gotten 80% of them right yet still failed. Last time I checked, 80% was a B- not an F.  A lot of these clues can be minimized by a skilled attorney.

Get to an attorney who regularly represents the accused in DUI/OWI cases as soon after you are released as possible. Fresh recollection is always better than memory that has diminished over time. Chances are the officer has generated his field notes the evening of your arrest. The report will generally be thorough and make note of every indicator of intoxication he notices. He is trying to build a case against you from the moment you step out of the car. I very rarely see information that has been included in a police report to make the accused look innocent!  The police deserve our support for the good work that they do, but when they are placing you under arrest, despite what may be a friendly and professional demeanor, they are not on your side.

All is not lost if you failed your field sobriety tests. Most people arrested for drunk driving are ultimately convicted. However, a large portion of those people plead guilty at their first appearance. They are guaranteed a conviction. Many who hire lawyers will still be convicted. Perhaps they are facing jail time and accept an offer to plead in exchange for a shorter sentence. Maybe the deck is otherwise stacked and a plea is in your best interest. Despite the figures, a DUI/OWI case can be won-even if you failed your field sobriety tests. In fact, a large number of OWI acquittals are in cases where the officer reported failures on most if not all of the tests. If you or someone close to you has been in this position, the best advice I can give is to consult with an attorney who practices in this field regularly.

Drink responsibly and drive safely,

Eric

Cooky Case of the Day: Cooky Field Sobriety Tests


Follow this link for today’s Cooky Case a funny video of field sobriety testing. This is what it takes to pas folks…..almost.

Cooky Case of The Day: Man Gets DUI in Barbie Car

June 25, 2014 1 comment

Here’s proof that when they say “motorized vehicle” they mean any motorized vehicle. They have made cases stick for drunk garden tractor driving and farmers driving to and from the tavern for a beer and pickled egg between fields. The Telegraph reports that an intoxicated man was arrested and lost his license to drive for operating his daughter’s Barbie Car while under the influence. follow this link to read the article.

Cooky Case of the Day: Aussie is Ingenious Drunk Driver

June 23, 2014 1 comment

Here’s a link to a case about a guy who couldn’t wait until he got to the bar and invented his own “cooler car” powered by a 50cc motor.

New Feature: The Cooky Case of the Day


It occurred to me the readers of On Legal Ground might like a little levity. So in between blog articles, I will scour the web for some good legal humor. Here is today’s Cooky Case from Legal Juice

If you’re wondering “Is there a ‘right’ Mercedes to steal?” – the answer is a resounding “yes.” It would be a Mercedes that doesn’t have a lion in the back.. Per The Telegraph:

Caesar, Circus Probst’s ferocious five-year-old star, was being transported a Mercedes van when the vehicle was stolen.

The thief drove off, but abandoned the vehicle with the engine still running after crashing into a road sign. It was unclear whether the thief’s sudden awareness of the animal in the back of the van had inspired him or her to abort the mission.

The Innocent Owner Defense: Wait! That’s My Car!

June 17, 2014 3 comments

Parent’s have bought cars for their kids for a long time. For our children, the ownership of that first car is a rite of passage in a young person’s life. This is certainly the case here in Southeastern Wisconsin. A good friend of mine just presented his daughter with her first car for her birthday complete with a bow on the hood.

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Parent’s usually elect to retain title to their kids’ vehicles-even when they go off to college. My parents were kind enough to take responsibility for my jalopy, a big Black 1965 Chrysler 300, when I took it to school and parked it in my fraternity parking lot. Think Animal House. That car had every appearance of being my car. But I understood that Dad was paying the bills and it was really his until I could pay for it myself. Not sure I ever did. (Thanks Mom and Dad) but who does the law think owns your kid’s Studebelchfire? At least one Wisconsin court has held that despite registration in a parents name some ownership is limited.

Here’s it played out. A young women took “her” car registered in Daddy’s name to college where it was parked for the school year. She got arrested on drug trafficking charges in the car and the State initiated an action to take it . But it’s Dads, right? WRONG! The court in State v. One 2010 Nissan Altima, 2013AP2176, District 2, 6/11/14 (not recommended for publication) held that defendant was the “owner” for the purposes of the forfeiture law. Her argued he was the “innocent owner” under § 961.55(1)(d)2., which provides:

“[n]o vehicle is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without the owner’s knowledge or consent.”(¶¶3-7, 9).

The court rejected this argument. The court held that the registered owner’s financial stake was not more indicative of ownership than the daughter’s possession and control. Read that again. As a lawyer the case tells me that the innocent owner defense probably only applies to car thefts in the future. As a citizen, this case tells you that the government is once again willing to erode your property rights in order to achieve it’s goals. As a parent, it tells you to think twice before buying junior that car.