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

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