Tuesday, November 25, 2008

My Complaint Has Incorrect Information In It

I have a lot of client's telling me that they have been charged with an OWI or other crimes and that they have read the Complaint (the charging document) and it has false informtion in it. What can they do?

Well, first you must determine whether or not the information is material to the sufficiency of the Complaint, i.e., but for that possibly incorect information, would they have enough to charge you? If the answer is yes, then disregard the fact that you believe it to be incorrect. If, however, you believe that without that information in the charging document the case would have no merit or be insufficent to charge you, then you may move the court for an evidentiary hearing, via a Franks/Mann motion. In bringing this motion you are challenging the sufficiency of the charging document. In attacking the sufficiency of the Complaint you should file a motion and affidavit to support the motion. You, however, do not have to show that the misrepresentation was intentional or reckless, so long as "but for the misstatement or omission being included" there would not be probable cuase.

So, there are times where, due to error, you may be able to get your case dismissed.

How Do I Get My License Reinstated After Suspension

Generally, you need only pay the reinstatement fee, which is about $50, no application or test is required. Remember, suspension will continue until the reinstatement fee is paid.

Thursday, November 6, 2008

What Do You Mean The Legal Limit Is 0.02 not 0.08

After you have accumulated three (3) OWI, BAC or other related and applicable offenses, then you BAC limit goes from a 0.08% to 0.02%. So, if you are pulled over and cited for a 4th offense, it will be based upon a BAC limit of 0.02.

There are sometimes ways around this. For examlple, if you didn't have an attorney on your 2nd or 3rd offense, you may be able to get one of the prior convictions suppressed and make therefore turn the 4th offense into a 3rd offense, and, then the BAC level goes back up to 0.08%.

It is important to gave an attorney who knows how to accomplish this! So, pick your attorney carefully.

Wednesday, November 5, 2008

Was I Pulled Over Illegally By The Police

"The officer pulled me over and told me that he had run my plates and saw that I didn't have a valid license, and that is why he said he stopped me. Then he arrested me for driving drunk...can he do that?"

Yes, an officer can run your plates and that does not violate your constitutionally protected rights to privacy. If he then establishes a reasonable suspicion that you may be intoxicated, he may extend his investigaiton and test you to determine if there is probable cause to make an arrest for OWI.

"Did the officer stop you while knowing you were the driver or because the plates were expired?" "My plate were fine, they were not expired; my license was revoked. And, NO, the officer couldn't have known it was me, he never saw me get into the car, it was the middle of the night and dark, and I have tinted windows - so, you aren't able to see in."

Well, under those circumstances, first, you may be cited for illegally tinted windows - if they are too darkly tinted. But, in this case, that is not why the officer stated he pulled you over. So, second, if the officer is unable to idenitfy you, the operator, as the person that the car is registered to, then, NO, he cann't simply pull the car over. In this case, it sounds as though the stop may have been illegal and you may be able to submit a motion to dimiss your case or suppress the test results and win your case.

Monday, November 3, 2008

How Do I Know If I Failed The Walk-And-Turn Test

First of all, you never fail these tests. Often time the word "fail" is used by police officers to indicate whether they believe you are intoxicated or not, based upon your performance on an individual Field Sobriety Test (FST). What the officer means, is whether or not you have "clues" that may indicate a certain level of intoxication.

For the Walk-And-Turn test, the officer looks for eight clues: (1) balance during instruction phase, (2) starting too soon, (3) stopping once started, (4) not touching heel-to-toe while walking, (5) stepping off of the line (or imaginary line - i.e., stumbling to the side, (6) using your arms to keep balanced, (7) turning incorrectly after step 9, and (8) taking the wrong number of steps.

It is suggested in the National Highway Traffic Safety Administration (NHTSA) manual that officers are train in accordance with that exibition of two or more clues during this test may indicate a BAC level above a 0.10 level. There is much debate on the accuracy of this, in as much, the NHTSA manual admits that if done correctly, it only has a prediction accuracy of merely 68%. This does not take into account a disability that one may be suffering from at the time of testing, or conditions, such as weather, etc. that may affect one's ability to perform such a test. Once those factors are accounted for, it many times comes down to a 50/50 coin toss, which is not statistically very convincing. When a test in no more accurate that a blind guess, it's not much use as an accurate indicator of intoxication. By itself, it's basically as valuable as the "magic 8 ball" in predicting whether someone is intoxicated.

Saturday, November 1, 2008

Do I Get A Jury Trial If It's My 1st OWI Offense

You do not necessarily have a right to a jury trial in Wisconsin for an OWI 1st offense because it is not a criminal matter. However, you will generally get a jury trial if you request one in writing and pay a jury fee. Remember, though, you must request a jury trial and pay the fee within 10 days of your initial plea being entered, otherwise you will have your matter tried to the judge, which is generally not a good idea. Strategically, I would rather have a jury trial because motions will be heard prior to the day of trial, because it's too expensive and a waste to bring in a jury to if the motion to dismiss is successful. But, often times, in court trial cases, the judge will take up the motion the same day of the trial. And, if you lose on the motion, you will most likely lose at the trial.

When Can An Officer Request A PBT Test

An officer may request that you submit to a PBT test if he has established "probabe cause to believe" that you are in violation of the Implied Consent laws, for example, operating a motor vehicle while under the influence of an intoxicant. However, you may refuse to take that specific test without violating the Implied Consent statute and without penalty. An officer does not have to have "probable cause to arrest" prior to requiring a PBT test. But, logically, he will need more than a "reasonable suspicion." Refusing to take the PBT test will not constitute the legal charge of "Refusal," for which your license may be suspended, even if the OWI/BAC charges are dismissed.

Can I Be Arrested For An OWI Even If I Wasn't Driving

Yes, sometimes! Wisconsin utilizes the term "operating," not just "driving," when it comes to OWI related matters. The term "operating" has a broader definition than "driving," and is construed to include driving behavior. It has been defined as the "actual physical handling of the controls of a motor vehicle." Wisconsin's statute defines operate as "the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion."

What Is An Ignition Interlock Device

Ignition Interlock Devices (IIDs) is a device that is installed in a vehicle as part of the starting mechanism, which requires the driver to provide a breath sample by blowing into the device. If your breath sample when you blow is above the set alcohol concentration level, the device will not allow the vehicle to start.

Can They Really Take My Car Away From Me If I Drive Drunk

Yes. On a third or subsequent OWI-related conviction, you technically must surrender the title to the vehicle involved in the offense to the clerk of courts to be stamped "Per section 346.65(6) of the Wisconsin statutes, ownership of this motor vehicle may not be transferred without prior court approval." The title will be stamped and returned to the owner. Failure to surrender a certificate of title is subject to a $500 fine. Then, the judge may order seizure of the vehicle used in the offense. The seized vehicle will be subject to forfeiture proceedings. However, in most situations, the judge does not order your car to be forfeited.

Do I Really Have To Wait 1 Year To Get My Occupational License

The length of wait for obtaining an occupation license in OWI cases is dependant upon a few things. Generally, the eligibility or waiting period is as follows:

1. Administrative Suspension - no waiting period;

2. Suspension for Underage Absolute Sobriety Violation - no waiting period;

3. Revocation for 1st Offense - no waiting period;

4. Revocation for 2nd Offense - 60 day waiting period;

5. Revocation for 3rd Offense - 90 day waiting period;

6. Revocation with prior Offense with last 5 years - 1 year waiting period.

Keep in mind that you may be able to obtain an occupational license immediately in any of these situations if you lose your license prior to a conviction on the current charge, so long as you obtain SR22 insurance and are approved at the DMV, after having filled out its forms. But, if your case later concludes with a conviction, you will then lose your occupational license and have to wait out any required waiting period, as shown above.

Are There Places That I Can Be Or Drive Without Getting Arrested For OWI

People have been saying to me lately, "I heard that there are places where I can drive and not get arrested for drunk driving, is this true?"

Yes! However, I would never recommend driving drunk anywhere. But, this is how it breaks down, OWI laws are applicable to these locations:

1. all highways;

2. all roadways and premises held out to the public for use of their motor vehicles, e.g., parking lots;

3. all areas provided by employers to employees for the use of their motor vehicles;

4. all premises provided to tenants of rental housing in buildings of four or more units for the use of their motor vehicles, whether publicly or privately owned and whether or not a fee is charged for use;

5. but, OWI laws do NOT include private parking areas at farms or single-family residences.

Friday, October 31, 2008

Horizontal Gaze Nystagmus (HGN) Test

If you were given the Horizontal Gaze Nystagmus tests (HGN), a.k.a, the "follow the pen test with your eyes", did the officer do 7 passes?
(1) did he do a preliminary pass to check for any disability?
(2) on the second pass, did it take exactly 8 seconds, or did he go too fast?
(3) on the third pass, did it take exactly 4 seconds, or did he go too slow?
(4) remember, most people have some form of natural nystagmus; however, it eventually clams down after a few seconds, but an alcohol nystagmus doesn't. So, if the officer went too quickly, he did not perform the test correctly and may have seen the natural nystagmus and incorrectly come to the wrong conclusion.

Wednesday, October 29, 2008

Can I Get My OWI Conviction Erased From the Records

On your 1st offense OWI, if you are able to enter a plea to the BAC/PAC charge between 0.08 -0.99, then after 10 years it will be purged and no longer part of your record. Otherwise, your conviction will be a part of your permanent record.

Should I Submit to an Officer's Request to Perform Testing

If you are arrested for drunk driving the police may ask you to submit to a blood or breath test. If you refuse to submit to their request, then you may be cited for Refusal, in addition to any OWI and BAC/PAC citations that you may receive. If you do refuse, then you have 10 days from the date you were given notice in which to demand a refusal hearing.

If you submit to the officer's primary test request, often times a blood test, you have the right to request secondary test, i.e., an alternative test. If you are not given the opportunity for the alternative test that you have requested, the court may then suppress the results of the first test at trial. And, it's hard for the state to get a conviction without the test result.

Monday, October 27, 2008

Field Sobriety Testing

I was surfing YouTube and found this hilarious drunk driving video, check it out:

The title of it is "How to Pass a Drunk Driving Test."

However, if you do what this guy did in the next video, during the Field Sobriety Testing, there may not be much that I can do:

The title of it is "Joker taking a drink/drive test and acing all the answers."

But, if do ever get stopped, I would imagine that you may want to do what this guy did - but don't, for obvious reasons:

The title of it is "Pissed On Cops - Traffic Stop"

Saturday, October 25, 2008

Were you arrested for drunk driving in the State of Wisconsin?

There are several phase of the arrest procedure in Wisconsin, and if there is an error in procedure or law at any of those phases, your case may be dismissed!

Phase 1: The Stop. This is the inital phase where a police officer must find a valid legal reason to pull you over. Usually, it is for an ordiance infraction, such as speeding, weaving outside the fog line, or failing to come to a complete stop. However, overzealous officers sometimes make mistakes here. For example, pulling someone over for "making too many right hand turns" was not a valid stop, in accordance with the 4th Amendment, despite the officer's believe that it was suspicious. Also, weaving within one's lane may not be enough to constitute a valid stop.

Phase 2: Reasonable Suspicion. After the stop, the officer must establish a "reasonable suspicion" that the operator of the vehicle was committing another infraction, such as a crime, or operating while intoxicated. Otherwise, the officer has merely stopped the individual for a traffic infraction, such as speeding, and has no other reason for further investigation. To be reasonable, generally, the officer must spot a combination of things, such as "the odor of intoxicants" that eminate from the driver, slurred speach, glassy eyes, slow or fumbled reactions to questions, etc.. This is a "totality of the circumstances" phase. If these criteria are met, the officer may further an investigation as to the newly suspected offense of OWI and have the driver exit the vehicle and perform Field Sobriety Testing (FSTs).

Phase 3: Probale Cause to Arrest. Once establishing that there is a reasonable suspicion of another infraction, the OWI, the officer may further his investigation and have the driver perform the FSTs. The most common tests are the Horizonal Gaze Nystagmus (HGN), One-Leg-Stand (OLS) and the Walk-And-Turn (WAT) tests. Many times the officer will make mistakes here, such as, forgetting to establish a baseline prior to testing, failing to properly perform the HGN test (often times scanning too fast), failing to have the person start in the proper position in the Walk-And-Turn test (which results in an improper pivot turn at step 9) or failing to properly time the One-Leg-Stand (which is to be for 30 seconds, not a count of 30, which tests to be about 40-45 seconds). This is a "totality of the circumstances" phase, having merely reasonable suspicion does not equate with being able to establish probable cause. There has to be more than what the officer had to get you out of the car, in order to make the arrest.

Phase 4. Formal Testing. In this phase, the officer must comply with Wisconsin's Implied Consent Laws. What that means is that the officer must, after making the arrest, read you the Informing the Accused sheet, and this must be done prior to breath or blood testing. The remedy for the officer failing to comply include suppress at trial of the test results, as well as him having violated your 14th Amendment Due Process Rights, and Wisconsin's statutory Implied Consent Law. Additionally, after submitting to the officer's test, you may request other testing. And, if the officer fails to provide you with that opportunity, then the remedy is the same, suppression of the original test results, as that too is a violation of your Constitutionally protected rights.

Knowing your rights, and choosing an attorney who thoroughly understands this area of law may be the difference between you losing your job and going to jail and getting your case dismissed!!

Atty. Eric P. Pitsch

614 N. Oneida St.

Appleton, WI 54911

(920) 380-0971