Tjader Law:
FREQUENTLY ASKED QUESTIONS
Why did I get two tickets?
There are two common alcohol-related offenses in Wisconsin. One is operating while under the influence of an intoxicant (“OWI”). The other is operating with a prohibited alcohol concentration (“PAC”). They both are slightly different offenses. The OWI requires that your ability to operate a motor vehicle was materially impaired by your consumption of alcohol, a controlled substance, or any combination of the two. The PAC requires that your alcohol concentration was over the legal limit. The legal limit varies depending on how many prior OWI, PAC, or refusal convictions you have.
Did I have the right to talk to a lawyer before deciding to take the test?
Unfortunately, not in Wisconsin. Once the officer has read to you the Informing the Accused form, you are required to promptly say “yes” to the requested test. While it may be appropriate to ask for clarification of the information in the form or to ask a question or two about your rights, anything other than a “yes” answer to the requested test may be taken as a refusal. This may also include remaining silent. That said, it’s unlikely that a jury would regard your request for a lawyer as evidence that you were guilty of OWI. So you may still have a defense to your OWI even if a request for a lawyer was taken by the officer as a refusal to submit to the test.
Can I pick my own test?
That depends. Under the Implied Consent Law, a law enforcement agency may choose the first test that you must take. You cannot select that test yourself. Any attempt to do so may be taken as a refusal by the officer. You also cannot object to a blood test on the grounds that you have a fear of needles. But once you take the first test the officer asks you to take (and any other tests you are requested to take), you may then take the alternate test the law enforcement agency is prepared to give you at their expense and/or a test of your own choosing at your expense. The officer is required to provide you with a reasonable opportunity to arrange for your own test. He or she is also required to administer to you an alternate test if you request one.
Did I have to take the breath test at the scene?
No. You have the right to refuse to submit to that test. It has nothing to do with the breath test that you may be required to take later under the Implied Consent Law. The hand-held breath test that you may be asked to take at the scene is merely a tool for the officer to use in deciding whether to arrest you. This device is approved in Wisconsin only for determining whether you have alcohol in your system, not what your alcohol concentration is. The results of this test are generally not admissible in court. However, if you do refuse to take this test, the officer will most likely arrest for OWI.
What happens if I refuse to take the test the officer requires me to take after reading the Informing the Accused form?
Then you will be given a Notice of Intent to Revoke. This puts you on notice that you are being accused of refusing to take a chemical test. It tells you that you have 10 business days to demand a hearing. You need to be sure to file this demand yourself, or preferably, have your lawyer file it for you. If you fail to file a demand for a hearing within 10 days, you will automatically be found guilty of a refusal. The hearing will be in front of a circuit court judge. This is not a criminal charge, but you will lose your license and there will be a waiting period for your occupational license. You may also be convicted of an OWI that may or may not be criminal. The officer may also decide to forcibly restrain you and have a blood sample taken anyway.
How can I be convicted of an OWI if there is no test result?
An OWI conviction may be obtained based on any combination of the evidence of you driving, your performance on field sobriety tests, and other observations the officer and other witnesses may have made regarding your actions and behavior. In addition, if you refused to submit to the test, the jury will be told that they may consider the fact of your refusal as evidence that you knew you were guilty. This is why the reason that you may have refused becomes very important.
Can I lose my license before my court date?
Yes. If you have taken a test and the result is over the legal alcohol limit, you may face an administrative suspension of your license. You will be given a Notice of Intent to Suspend that informs you of this. If you took a breath test, then you will probably be given this form the night you were arrested. If you took a blood test, then the form will probably be mailed to you. You have 10 days to request a hearing on this suspension. If you fail to do so, your license will be automatically suspended 30 days after the date on the notice. You need to be sure to file this demand yourself, or have your lawyer file it for you. The hearing will be in front of a hearing examiner from the Department of Transportation. There may be some situations where it works to your benefit not to file a request for a hearing. Your lawyer can help you make that decision.
If I get convicted of a criminal OWI, will I go to jail?
If you get convicted, there are mandatory jail sentences. The length of those sentences depends on what offense OWI it is, the facts of your case, what your alcohol level was, whether you refused to take a test, and whether you have done alcohol or drug counseling. Your lawyer will assist you in defending your case, looking into your prior convictions, and making sure that you get the best possible deal. In addition, many counties also have electronic monitoring programs that allow you to serve your sentence while being supervised at home. You are also able to go to work. Your lawyer will also help you in applying for those programs.
I got a ticket and I wasn’t driving. Can they do that?
Perhaps. Wisconsin prohibits operating a motor vehicle while under the influence or with a prohibited alcohol concentration. This means that the car may not have been moving. They still have to prove that you actually used any of the controls necessary to put the vehicle into motion. This means that you turned on the ignition, or put the vehicle into gear, etc. It may also be sufficient if there is a reliable witness who can testify that you were driving or operating the vehicle.
I drank alcohol after I drove and before the officer gave me a test. Does that matter?
Absolutely. This can be a very hard for a prosecutor to prove. They need to prove that you were impaired at the time of driving. What happens during the period intervening driving and the test is very important. It always works to your benefit if you have been drinking after you drove and before you submitted to the test.
I'm guilty. Why should I fight my case or hire a lawyer?
Simple. First of all, the question is not whether you’re guilty. It’s whether the prosecutor can prove that you are. Second, you may have legal issues in your case that can help you, such as invalid prior convictions. This could result in you getting a much lighter sentence. This isn’t something that you can determine for yourself. You need a lawyer to do if for you. If you have two or more pending OWI cases, your lawyer can raise legal arguments that could result in a much lighter sentence. Worst case scenario, you lawyer will negotiate the best possible deal for you and make sure that all of your rights are protected. Did you know that you need to do your AODA assessment before you report to jail or you don’t get Huber release? Did you know that if you have two pending OWI cases, you need to be convicted of both on the same day or else you lose your occupational license? Your lawyer should know all of these things and more. He or she will prevent you from being penalized more harshly simply because you don’t know all the applicable laws, regulations, and administrative codes. The State of Wisconsin has a lawyer representing its interests in every hearing, even for simple traffic tickets. Why shouldn’t you have the same protection?
OWI BASICS
OPERATING WHILE INTOXICATED
This means that you consumed alcohol, a controlled substance, or some combination of the two to the point where you were incapable of safely operating a motor vehicle at the time of driving.
OPERATING WITH A PROHIBITED ALCOHOL CONCENTRATION
This means that your alcohol level is at or above the legal limit set for your number of offense at the time of driving.
Except for OWI homicide cases, you may only be charged with these offenses if you were operating the vehicle on a public highway or premises held out for use of the public. This includes all premises owned by employers for use of their employees and all premises in rental housing units of 4 or more.
Operating a motor vehicle includes not only driving it, but also the manipulation of any of the controls required to put the vehicle into motion.
You may be convicted of both OWI and PAC, but the convictions must be joined for purposes of sentencing. So you can’t be sentenced for both.
A first-offense OWI/PAC is civil. If convicted, you will have to pay a forfeiture, your license will be revoked, you will be ordered to complete an alcohol assessment, and will have to finish a driver’s safety plan. You should be immediately eligible for an occupational license, provided that you haven’t had any other suspensions or revocations for any reason within the last year. You cannot go to jail unless you fail to pay you forfeiture on time.
Second through fourth-offense OWI/PACs are criminal misdemeanors. If convicted, you will have to pay a fine, your license will be revoked, there is mandatory jail time, you will be ordered to complete an alcohol assessment, and will have to finish a driver’s safety plan. You may be ordered to install an ignition interlock device on your vehicle. You may also have the vehicle that you were driving when you committed the offense forfeited by the State. For a fourth-offense OWI/PAC, you may be sentenced to probation if you agree to it. You will have a mandatory waiting period before you are eligible for your occupational license.
Fifth offense and higher OWI/PACs are criminal felonies. If convicted, you will have to pay a fine, your license will be revoked, there is mandatory jail time and possible prison time, you will be ordered to complete an alcohol assessment, and will have to finish a driver’s safety plan. You will be ordered to install an ignition interlock device on your vehicle. You may also have the vehicle that you were driving when you committed the offense forfeited by the State. You may be sentenced to probation if you agree to it. If you are sentenced to prison time, you will also have a period of supervised release afterward. You will have a mandatory waiting period before you are eligible for an occupational license.
OWI/PAC CAUSING INJURY
This is a criminal misdemeanor, even a first offense. If convicted, you may have to pay a fine, your license will be revoked, you may be sentenced to jail, you will be ordered to complete an alcohol assessment, and will have to finish a driver’s safety plan. You may be ordered to install an ignition interlock device on your vehicle. You may be sentenced to probation if you agree to it. You will have a mandatory waiting period before youare eligible for an occupational license. You will be ordered to pay restitution.
OWI/PAC CAUSING GREAT BODILY HARM
This is a criminal felony, even a first offense. If convicted, you may have to pay a fine, your license will be revoked, you may be sentenced to jail and possible prison time, you will be ordered to complete an alcohol assessment, and will have to finish a driver’s safety plan. You may be ordered to install an ignition interlock device on your vehicle. You may be sentenced to probation if you agree to it. You will have a mandatory waiting period before you are eligible for an occupational license. You will be ordered to pay restitution. If you are sentenced to prison time, you will also have a period of supervised release afterward.
HOMICIDE BY OWI/PAC
This is a criminal felony. If convicted, you may have to pay a fine, your license will be revoked, you may be sentenced to jail and possible prison time, you will be ordered to complete an alcohol assessment, and will have to finish a driver’s safety plan. You may be ordered to install an ignition interlock device on your vehicle. You may be sentenced to probation if you agree to it. You will have a mandatory waiting period before you are eligible for an occupational license. You will be ordered to pay restitution. If you are sentenced to prison time, you will also have a period of supervised release afterward.
WHAT WILL HAPPEN IN MY CASE?
From the minute the officer gives your paperwork, several deadlines start to run. You should receive all of the following: a ticket for operating while under the influence of an intoxicant (pink piece of paper) and a copy of the Informing the Accused form (8 ½ x 11 pink piece of paper).
If you submitted to a breath test, you will also receive a copy of the Intoximeter EC/IR test result (8 ½ x 11 white piece of paper). If the result is over the legal limit, you will get a ticket for operating with a prohibited alcohol concentration (pink piece of paper), a Notice of Intent to Suspend (8 ½ x 11 pink piece of paper) and an Administrative Review Request (8 ½ x 11 yellow piece of paper).
If you submitted to a blood test, you will receive in the mail a copy of you blood analysis from the State Lab of Hygiene (8 ½ x 11 white piece of paper). This usually takes approximately 2 weeks. If the result is over the legal limit, you will receive at a later date a ticket for operating with a prohibited alcohol concentration (pink piece of paper), a Notice of Intent to Suspend (8 ½ x 11 pink piece of paper) and an Administrative Review Request (8 ½ x 11 yellow piece of paper).
If the officer decided that you refused to submit to a chemical test, you will receive a Notice of Intent to Revoke (8 ½ x 11 pink piece of paper).
If the officer decided that you refused to submit to a chemical test, you will receive a Notice of Intent to Revoke (8 ½ x 11 pink piece of paper). If you were made to submit to a blood test anyway, you will receive in the mail a copy of you blood analysis from the State Lab of Hygiene (8 ½ x 11 white piece of paper). This usually takes approximately 2 weeks. If the result is over the legal limit, you will receive at a later date a ticket for operating with a prohibited alcohol concentration (pink piece of paper).
Sometimes police officers screw up and give you paperwork that either should not be issued to you, or provide you with paperwork at the wrong time. The information listed above is the correct way for the paperwork to be issued to you.
TRAFFIC TICKET: this tells you the date, time, and place that you must appear in court. It will also probably tell you that your court appearance is mandatory. However, your attorney will most likely be able to appear on your behalf. Don’t make the mistake of assuming that nothing will happen in your case before this date. Each and every form listed above starts a deadline that often has nothing to do with your first court date. In a first offense case, you will have 10 days from the date of your first court date in order to request a jury trial. This should be done in every case that starts in circuit court. If you have a municipal court case, you should go through that process first. In these cases, you will not want to demand a jury trial initially. You can always do that at a later date.
NOTICE OF INTENT TO SUSPEND: this form acts as a temporary driving permit. It also tells you that your license will be suspended in 30 days from the date on the top right corner of the form. You have a right to demand a hearing on this suspension. That leads us to the next form.
ADMINISTRATIVE REVIEW REQUEST: this form needs to be filled out and submitted to the Department of Transportation within 10 days of the date on the Notice of Intent to Suspend. If you fail to do this, you will be automatically suspended – probably before you even get to court.
BLOOD ANALYSIS: this form tells you what your blood test results are. It also informs you that your blood sample will be preserved for 6 months from the date of the analysis. In the event that you want to have an independent lab test the results of your blood, you will need to file a motion requesting this well before the time limit has expired.
NOTICE OF INTENT TO REVOKE: this form acts as a temporary driving permit and tells you that you have 10 days from the date on the notice in which to request a hearing on the revocation of your license. If you fail to do this, you driving privileges will be automatically revoked – probably before you get to court. In addition, any alleged refusal on your part to submit to a chemical test will be automatically admitted in a trial on your operating while under the influence of an intoxicant case.
INITIAL APPEARANCE: this is the court appearance in which you typically enter a plea. You should always plead not guilty or stand mute before the court. Once the court has entered a not guilty plea on your behalf, your case will be set for a pretrial conference. Some counties don’t require you to enter a plea until after you’ve already had a pretrial conference.
PRETRIAL CONFERENCE: this appearance is usually not done in front of a judge. Typically, you meet with a prosecutor, receive police reports, and get an offer from them as to what it would take to resolve the case. In other words, what penalties the prosecutor thinks is appropriate.
RETURN DATE: in counties where you are not required to enter a plea until after the pretrial conference, you will be asked at this court date how you want to proceed. If you don’t want to take the pretrial offer, you will not enter a not guilty plea. Your case will then be scheduled for the next appropriate court date. If you do want to take the offer, you can enter a no contest or guilty plea and the court will sentence you.
FINAL PRETRIAL: this appearance is usually a type of status conference. The court wants to know if your case has settled. You may be able to work out a better offer than you originally received and decide to enter a plea and be sentenced on this date. If not, the court wants to know what it should be scheduled for next. Often, a case that has not settled by this point will be automatically set for a jury trial. That doesn’t mean that the case will go to trial. That’s just the court’s way of making sure that the case doesn’t get delayed for too long.
MOTION HEARING: sometimes, your attorney will file pretrial motions in your case. These are usually formal “requests” to either admit certain evidence or keep it out. They are based on legal arguments. A motion hearing may have people testifying, or it may just involve the attorneys both presenting their arguments and the court making a decision.
JURY SELECTION AND TRIAL: if a case hasn’t resolved and your attorney thinks you may win at trial or that you have nothing to lose by trying the case, you will proceed to a jury trial. This involves selecting a jury that you believe will be able to fairly hear your case. When the actual trial begins, both sides will have the opportunity to make opening arguments to the jury present witnesses and evidence, and to make closing arguments. The jury is then instructed on what the law is by the judge and has to make a decision as to whether you’re innocent or guilty.