Wisconsin Drunk Driving Laws

Pitsch Law Offices, LLC

2010-02-08T19:12:00.001-06:00

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How Do You Count Prior OWIs?

2010-01-25T22:45:00.002-06:00

On January 1, 1989 a new way of counting prior offenses went into effect; this includes offenses that have occurred out-of-state. The way it counts now is as follows, for all OWI offenses:

1. All prior convictions before January 1, 1989 do not count.
2. If you have two or more prior convictions, they will stay on your record permanently.
3. If your second offense occurs more than 10 years after the first, then the second will be considered to be a first offense.
4. But, even if your third offense occurs more than 10 years after the second conviction, then it will count as your third.
a. So, technically it could go: 1st, 1st, 3rd.
5. But, if a person is convicted of a 1st offense BAC violation, wherein the OWI is dimissed, where the alcohol concentration was greater than 0.08 but less than 0.10, the WI Dept. of Trans. is required to purge the conviction from its records after 10 years, if the person does not get another conviction within that 10 year period. Under this scenario, the conviction would be able to be permanently deleted from your record.

Update On DUI Law Change

2009-12-23T22:03:00.002-06:00

Here is a local accounting of the new laws about to be put into effect:

www.postcrescent.com/article/20091223/APC0101/912230526/1979/Wisconsin-toughens-drunk-driving-law

DUI, OWI Laws are changing

2009-12-16T22:43:00.001-06:00

Looks like drunk driving laws are changing again. 1st offense may become criminal if a 16yo or younger person is in the vehicle and 4th offenses may become felonies if the 3rd is within 5 years of the new one.

Think Before You Drive

2009-11-26T21:43:00.003-06:00

Many times a person will be over the legal limit and not feel the effects of alcohol. Before you leave the bar or establishment where you've been drinking, please reconsider whether you should drive. After all, a taxi cab is cheaper than a conviction for drunk driving.

Don't let this be you:

If that option is too late, please call us before you lose your rights. After all, many times you only have 10 days from the time of the incident to request the proper hearing or risk your licence being taken away either by the DOT/DMV administratively or by the court at the first hearing.

Pitsch Law Offices, LLC - "We know what to do and we can help you!"

Please call us immediately at: (920) 380-0971

We service the greater Fox Valley Region & North Eastern Wisconin area, including its surrounding communities. We are conveniently located down town Appleton.

www.pitschlaw.com

Drunk Driving Informational Video

2009-11-26T21:30:00.003-06:00

Estimate Your Blood Alcohol Percentage (BAC)

2009-03-02T12:33:00.006-06:00

Estimated BAC for MEN:

Drinks per Hour by Body weight in Pounds

0 140 150 160 170 180 190 200 210 220 230 240
1 0.03 .03 .02 .02 .02 .02 .02 .02 .02 .02 .02
2 0.05 .05 .05 .05 .04 .04 .04 .03 .03 .03 .03
3 0.08 .08 .07 .07 .06 .06 .06 .05 .05 .05 .05
4 0.11 .10 .09 .09 .08 .08 .08 .07 .07 .07 .06
5 0.13 .13 .12 .11 .10 .10 .09 .09 .09 .08 .08
6 0.16 .15 .14 .13 .13 .12 .11 .11 .10 .10 .09
7 0.19 .18 .16 .16 .15 .14 .13 .13 .12 .12 .11
8 0.21 .20 .19 .18 .17 .16 .15 .14 .14 .13 .13
9 0.24 .23 .21 .20 .19 .18 .17 .16 .15 .15 .14
10 0.27 .25 .23 .22 .21 .20 .19 .18 .17 .16 .16

Estimated BAC for WOMEN:

Drinks per Hour by Body weight in Pounds

0 90 100 110 120 130 140 150 160 170 180 190 200
1 0.05 .05 .05 .04 .04 .03 .03 .03 .03 .03 .03 .02
2 0.10 .09 .09 .08 .08 .07 .07 .06 .06 .05 .05 .04
3 0.15 .14 .13 .11 .11 .10 .10 .09 .09 .08 .08 .07
4 0.20 .18 .17 .15 .14 .13 .12 .11 .11 .10 .10 .09
5 0.25 .23 .21 .19 .17 .16 .15 .14 .14 .13 .12 .11
6 0.30 .27 .25 .23 .21 .19 .18 .17 .16 .15 .15 .14
7 0.35 .32 .30 .27 .25 .23 .22 .20 .19 .18 .17 .16
8 0.40 .36 .33 .30 .28 .26 .25 .23 .22 .20 .19 .18
9 0.45 .41 .37 .34 .31 .29 .28 .26 .25 .23 .22 .20
10 0.51 .45 .42 .38 .35 .32 .30 .28 .27 .25 .24 .21

One drink approximately equals a 12 oz. beer, 1.25 oz of 80 proof liquor or 5 oz of wine

Keep in mind that you burn off alcohol at approximately a .015% per hour.

So, a 190 pound man having 8 drinks in 4 hours would roughly have a BAC of 0.1%.
* Example: ((190lb man w/8 drinks in an hour (0.16%)) - (reduction over a 4 hr time span (0.15x4))) = 0.1% BAC, which is over the legal limit of 0.08% in Wisconsin.

The average male will eliminate about 2/3 of a drink per hour, while the average woman will eliminate about 1/2 of a drink per hour.

There are several factors that go into "intoxication, " such as tolerance or sensitivity, mixing with prescription medication, etc. So, you should not use these tables to determine anyone's fitness to drive. Purchasing a BAC meter, which are available at stores or online do not accurately detemine "fitness" to drive either. If you drink you should not drive; consider a designated driver or taxi cab instead!

Informing the Accused

2009-01-02T18:01:00.002-06:00

Another victory for the little guy....Prosecutor puts on his case-in-chief, has the officer and a witness testify, says client failed all field sobriety tests and was intoxicated. Witness testifies that he saw client driving, despite being the middle of the night at winter while being 75 feet away with lights shining in his eyes. Officers report states he read the Informing the Accused to client, but failed to testify to that fact at trial. Prosecutor closed his case-in-chief and attempted to submit the blood test results. I objected, stating no foundation, prejudice to client, and violation of his statutory and Constitutional rights because officer never testified that he read the Informing the Accused to my client, prosecutor never questioned officer about this at trial and never submitted that form into the trial record. Jury came back finding client guilty. But, the judge agreed with me and dismissed the case with prejudice, stating that my client's rights were violated.

We, as attorneys, have the duty to defend our clients and legitimize the legal process so that people's rights remain intact and so that innocent people's rights are not violated! I take that duty seriously!

My Complaint Has Incorrect Information In It

2008-11-25T12:00:00.004-06:00

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

2008-11-25T11:41:00.002-06:00

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.

What Do You Mean The Legal Limit Is 0.02 not 0.08

2008-11-06T18:06:00.002-06:00

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.

Was I Pulled Over Illegally By The Police

2008-11-05T10:19:00.002-06:00

"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.

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

2008-11-03T13:41:00.003-06:00

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.

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

2008-11-01T18:38:00.002-05:00

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

2008-11-01T18:19:00.003-05:00

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

2008-11-01T10:42:00.002-05:00

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

2008-11-01T10:36:00.001-05:00

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

2008-11-01T10:31:00.002-05:00

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

2008-11-01T10:14:00.002-05:00

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

2008-11-01T09:59:00.007-05:00

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.

Horizontal Gaze Nystagmus (HGN) Test

2008-10-31T19:23:00.001-05:00

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.

Can I Get My OWI Conviction Erased From the Records

2008-10-29T18:52:00.002-05:00

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

2008-10-29T18:27:00.002-05:00

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.

Field Sobriety Testing

2008-10-27T09:12:00.000-05:00

I was surfing YouTube and found this hilarious drunk driving video, check it out:
http://www.youtube.com/watch?v=xAIWvkNy2UI

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:
http://www.youtube.com/watch?v=vA5S58MPQtg&feature=related

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:
http://www.youtube.com/watch?v=46RGjXOOotU&feature=related

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

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

2008-10-25T19:11:00.000-05:00

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

http://www.pitschlaw.com/