Attorney Tracey Wood wins appeal of 4th offense drunk driving conviction. Wisconsin State Court of Appeals overturns the conviction of a person found guilty of a fourth offense OWI. The Appellate Court reversed on grounds that the evidence presented (a breathalyzer test as proof of sobriety and testimony) were illegal.
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DRUNK DRIVING - WHAT TO EXPECT
How to save your driver's license -- Why you can't wait until your court date to take action
If you wait until your court date to take action, it may be too late. You could lose your license -- even before you go to court. You must either demand an "administrative suspension hearing" or a "refusal hearing," depending on whether or not you submitted to a police blood or breath test, or refused to do so. Either way, the time limit is ten (10) days. If you don't demand a hearing, you'll lose your license, regardless of what happens in court. This isn't part of the court case, so you can't wait until you go to court to take care of it. You need to act promptly.
When is my Initial Appearance?
Your Initial Appearance date is the court date that is referenced on your citation. Unless someone from Van Wagner & Woods office tells you otherwise, you will not need to appear at the Initial Appearance hearing. At the Initial Appearance hearing, your attorney will enter a not guilty plea on your behalf.
Should I go to the Initial Appearance hearing?
Unless your attorney or someone from Van Wagner & Wood's office tells you others, you will not need to appear at the Initial Appearance hearing.
What will happen at the Initial Appearance?
At the Initial Appearance hearing, your attorney will enter a not guilty plea on your behalf.
You are not required to be present at your Initial Appearance unless your attorney tells you otherwise.
If this case is your first OWI, it is a civil matter and you will not hear from your attorney directly after the hearing, but soon after the Initial Appearance hearing the court will set your case for a pretrial conference and you will receive a letter from the office of Van Wagner & Wood notifying you of that date. That letter will be mailed to you as soon as Van Wagner & Wood is notified of the date.
If this case is your second OWI or above, it is a criminal matter. For criminal OWI cases, the court will provide your attorney with a criminal complaint and a Bail / Bond conditions of release form at the Initial Appearance hearing. Van Wagner & Woods office will send you a letter with copies of everything received at the Initial Appearance hearing and more details regarding your case.
What will happen at the Administrative Hearing?
At the Administrative Review hearing only the issues listed on the letter from the Department of Transportation (DOT) giving notice of the hearing will be heard.
If you hired Van Wagner & Wood, they will receive that letter giving notice of the hearing and they will provide you with a copy of it along with the police reports.
Van Wagner & Woods attorney will meet with a hearing examiner from the Department of Transportation to determine if your operating privileges will be suspended during the time of the court proceedings.
Van Wagner & Wood will then be notified of the results of that hearing by mail usually within one (1) day after the hearing occurs.
If you won at that hearing, your operating privileges will not be suspended during the court proceedings.
If you lost at that hearing, your operating privileges will be suspended thirty days after the Notice Date on the Notice of Intent to Suspend and Van Wagner & Wood will send you a letter with detailed information on how to get an occupational license.
Please note that the results of the administrative review hearing do not affect the outcome of your case in court.
What will happen at the Pretrial Conference?
At the pretrial conference your attorney will meet with the prosecutor from the Office of the District Attorney. (That prosecuting attorney is not necessarily the same prosecutor assigned to your case). It is not necessary for you to appear in person at the pretrial conference unless your attorney tells you otherwise. Your attorney will usually receive the discovery materials during that meeting along with an initial offer in your case. It also will not be necessary or useful for you to meet with your attorney before the pretrial conference because it is at that conference that your attorney will first receive the discovery materials on your case.
After the pretrial conference, Van Wagner & Woods office will send you a letter explaining the initial offer received and provide you with a copy of the discovery materials, if those were received at that meeting. Please keep in mind that an initial offer is not set in stone.
What about my CDL (Commercial Driver's License)?
Because Wisconsin, like all states, permits only one driver's license to be issued to a person, a drunk driving conviction will always result in suspension or revocation of the person's commercial driver's license, or "CDL." A "CDL" is not a separate driver's license. It is actually an 'endorsement' conferring additional privileges to operate commercial vehicles requiring specific qualifications. It is an endorsement, however, based on issuance of a regular driver's license and, consequently, conviction of an offense requiring suspension or revocation of the driver's license always means that the "CDL" is revoked or suspended. This is true even if the person was not operating a commercial vehicle or 'as a CDL' at the time of the violation.
For those who are subject to federal regulation, a drunk driving conviction will be considered a "major" violation and, thereby, can result in legal disqualification under applicable federal rules.
Insurance carriers often have their own rules governing employment of drivers with drunk driving convictions. Though each insurance company makes its own rules, trucking companies who haul interstate frequently are unwilling to hire or retain drivers with a drunk driving conviction because their insurance carriers will not allow them to do so. Companies who only haul inside Wisconsin generally are not subject to such strict insurance requirements.
There are also specific drunk driving offenses that focus on those who operate a commercial motor vehicle after having consumed alcohol. Operating a commercial motor vehicle with an alcohol concentration of 0.04 or more is illegal in Wisconsin. A driver who tests at or above that level will receive an immediate 24 hour out of service order, in addition to the citation for violating the 0.04 prohibited alcohol concentration law.
Can I get an Occupational License? How?
Probably. But you may have to wait awhile first. Wisconsin allows an immediate occupational license after a first offense conviction. But there is a waiting period, which can be from 30 to 90 days, in other circumstances. Also, you cannot get an occupational license if you've already lost your license for some other reason in the preceding 365 days. Lastly, you'll have to file proof of insurance with the motor vehicle department to qualify for an occupational license. This is normally done by getting an SR-22 from your insurance agent, and is likely to lead your insurance carrier to raise your rates and, possibly, reduce your coverage. Driving under an occupational license is limited. Generally, you may drive for work purposes or for "homemaking," but you are limited to not more than 12 hours in a single day and 60 hours in the total week, according to a schedule that is maintained in the DOT files.
An occupational license may be obtained through the Department of Transportation if your driving privileges have been suspended, provided you were valid to drive before you were charged with OWI. Before going to the DOT, you must obtain SR-22 Insurance.
You may not obtain an occupational license before your suspension date begins.
If your driving privileges were administratively suspended, Van Wagner & Wood will send you a letter with detailed information about SR-22 insurance and obtaining an occupational license.
Please note that there may be other factors with respect to your drivers record history that may prohibit you from obtaining an occupational license. For example, the Department of Transportation prohibits a person with two or more suspensions or revocations within a 12-month period from obtaining an occupational license.
I recieve a Notice of Intent to Suspend form. What does this mean?
Call Van Wagner & Wood immediately!
You received this form because you submitted to a breath or blood test and the result was over the legal limit for blood alcohol content (BAC over.08 for a first offense or.02 for a fourth or higher offense).
You have ten business days, not including holidays or weekends, from the Notice Data on that form to file an administrative review request (the yellow form). If you hired Van Wagner & Wood within that ten day period, they will complete the form for you and request an administrative review hearing on your behalf with the Department of Motor Vehicles. The Notice of Intent to Suspend form will serve as your temporary driving permit for thirty (30) days from the date of the notice.
Please read the Notice of Intent to Suspend form for any additional information.
At the end of that thirty (30) day period, your driving privileges will be suspended if:
(a) an administrative review request was not filed timely, or
(b) the administrative review hearing was lost (meaning that the suspension of your license was upheld).
At that point, you may be eligible for an occupational license (see Occupational License).
I recieve a Notice of Intent to Revoke form. What does this mean?
Call Van Wagner & Wood immediately!
You received this form because you are alleged to have refused the breath or blood test and you have an additional refusal charge with your OWI charge.
You have ten business days from the Notice Date on that form to file a demand for refusal hearing. If you hired Van Wagner & Wood within that ten day period, they will submit a Demand for Refusal to the court. The Notice of Intent to Revoke form will serve as your temporary driving receipt for thirty (30) days from the Notice Date.
Please read that form for additional information.
Provided that you hired Van Wagner & Wood within the ten day period, your operating privileges will not be revoked while your OWI case is pending. The court will schedule your case for a refusal hearing where the court will determine if your refusal to submit to the breath or blood test was proper. The outcome of that refusal hearing will determine if your driving privileges will be revoked.
If you are convicted of the refusal, there is a mandatory minimum one year revocation of your operating privileges.
When will the OWI conviction be removed from my driving record?
Never. In Wisconsin, a drunk driving conviction is a permanent part of your driving record. Since 1998, Wisconsin has counted all lifetime drunk driving convictions, even those before 1998, in calculating whether a drunk driving arrest should be prosecuted as a third or greater offense. So, unlike other violations, a drunk driving conviction is never purged from your Wisconsin driver record.
Special Defenses available when you refuse the test:
Refusal cases offer distinct and unique defenses, part of the special procedures which exist in refusal cases. These can be of incalculable benefit in defense of the case.
When a driver refuses to submit to a police breath or blood test, the police officer issues a "Notice of Intent to Revoke." This document starts a separate lawsuit, separate from the drunk driving case, and one that is governed by rules of procedure that are much the same as those which apply in most other civil cases, such as lawsuits for injuries or damages.
This means that a driver in a refusal case is entitled to take depositions, use interrogatories, requests for admission, and requests for production: all tools normally prohibited in a drunk driving case. These procedures are not normally available in a drunk driving case.
These tools can be invaluable. They can permit the defense lawyer to question the arresting officer, for example, in the lawyer's office, under oath, and without a judge present. The answers can be used in court, and to prepare for court. The answers can disclose information the police withheld from their reports, and didn't want to disclose.
Do my past drunk driving convictions count?
Many lawyers miss this one. See prior drunk driving convictions.
Will my insurance go up if I'm convicted?
Yes. How much will depend on your insurance carrier. A bigger problem than rates, however, may be coverage. Often, insurance companies after a drunk driving conviction refuse to write liability policy limits that are more than $ 50,000 in coverage. This can leave your assets and family unprotected against a lawsuit if there is later a claim. A $ 50,000 liability limits policy can be used up in a week's hospitalization and treatment. So, the real impact of a drunk driving conviction may be to put your family's financial security at risk.
Is this a felony?
A first offense drunk driving case is classified as a "civil forfeiture." It is not a crime because it does not carry a possible jail sentence. Usually, second, third, and fourth offense violations are criminal misdemeanor offenses. Fifth offense violations are felonies. However, if a passenger in the vehicle was under age 16, maximum penalties double. This means any third or fourth offense drunk driving where a passenger is under age 16 will be felony offense.
Can they take my car?
Wisconsin law allows a judge to order a vehicle to be seized for forfeiture whenever its owner is convicted of a third or subsequent offense drunk driving violation. In a case taken to the Wisconsin Supreme Court, the scope of the law was limited to allow only a vehicle both owned by the driver and used by the driver to commit a drunk driving offense, 3rd or greater, to be forfeited. Forfeiture, moreover, requires a separate lawsuit be filed, after conviction of the drunk driving charge itself. So, if there's no conviction, there can't be a vehicle forfeiture. In 1999, the statute was amended to make this an explicit restriction in the law.
The legislation signed by the Governor in 1999 also made other changes to the forfeiture statute. Under the old law, forfeiture was mandatory if there were a conviction for a fourth or greater offense drunk driving or PAC (or refusal) case. These mandatory forfeitures have now been eliminated, though any vehicle owned by a person convicted of a third or greater offense drunk driving violation is still subject to forfeiture if it was used to commit the offense. It's just that it's optional, in the discretion of the judge and prosecutor, rather tan being required. This means that prosecutors can decide to seek forfeiture of an expensive car, but ignore a junker.
If a vehicle is forfeited, any money owed to the bank or other secured party must be first paid out of the proceeds realized by the Sheriff's selling the car. As a practical matter, this means that many vehicles cannot be forfeited, because the price at a sale wouldn't exceed the outstanding loan balance. Also, leased vehicles cannot be forfeited, because they're not owned by the driver. Similarly, a vehicle owned by an employer or third party, such as a rental car, cannot be forfeited.
Whenever a judge orders a vehicle seized for forfeiture, the statutes require the district attorney bring a separate lawsuit to accomplish forfeiture. Forfeiture cannot be ordered directly in the drunk driving case itself.
How long does a drunk driving conviction stay on my record?
Forever. In Wisconsin, a drunk driving conviction is a permanent part of your driving record. Since 1998, Wisconsin has counted all lifetime drunk driving convictions, even those before 1998, in calculating whether a drunk driving arrest should be prosecuted as a third or greater offense. So, unlike other violations, a drunk driving conviction is never purged from your Wisconsin driver record.
How can I plead "not guilty" if I am guilty?
By saying "not guilty" when the judge asks for your plea. It's your right. A "not guilty" plea in court simply means you're not going to admit anything, and that it's up to the prosecution to prove it' case -- if it can -- by legally obtained and legally admissible evidence.
There's nothing dishonest about pleading not guilty, even if you think you might be guilty. In the American system of justice, it's your right.
When do I get the police reports?
If you hired Van Wagner & Wood and if your case will have an administrative review hearing, the Department of Transportation will send your attorney a copy of your police reports along with the notice of that hearing. At the pretrial conference, your attorney will usually receive the complete discovery on your case, including police reports and any supplemental information. Prior to this date, your attorney does not have access to the police reports. Depending on the county or municipality in which you were charged, the prosecutor may send your attorney the discovery before or after this pretrial conference.
Do I need to see a drug or alcohol counselor?
Seeing a counselor for an assessment of any potential alcohol or drug related problem that may exist is always a good idea and may help you if such a problem does exist. From the standpoint of your case and depending upon your entire situation, your voluntary participation in a treatment program may cause or influence the court to lessen your sentence, particularly if you are receiving treatment or have completed treatment goals. If you would like to look into or begin treatment, Van Wagner & Woods staff or your attorney can provide you with a list of approved treatment facilities in the Dane County area or help you find a reputable facility in another county.
Please note that if you are convicted of OWI, the court will order you to complete an assessment at the time of your sentencing.
If you decide to voluntarily pursue treatment or see an alcohol or drug counselor or choose to see a therapist or other social counselor or are already in a treatment program, please ask the counselor for a Consent to Release Information form, sign it, and ask your counselor to send your attorney a letter on your behalf that describes your treatment program and prognosis.
I hired Van Wagner & Wood after the 10 day deadline. Now what?
Depending upon how long you waited to hire Van Wagner & Wood past the ten (10) day deadline, it may still be possible for your attorney to file an administrative review request or a demand for refusal hearing. While the deadline date may sometimes be extended after your attorney files a motion, if the Department of Transportation notes that the administrative review request was not filed within the ten (10) day limit, your operating privileges will be suspended thirty (30) days after the notice date on the Notice of Intent to Suspend. If the court notes that the refusal demand was not filed within the ten (10) day limit, your operating privileges will be revoked thirty (30) days after the notice date on the Notice of Intent to Revoke.
Please note that it is vitally important to contact immediately after receiving a citation for an OWI if you depend upon or are concerned about protecting your future driving privileges.
When do I meet with my attorney at Van Wagner & Wood?
The attorneys of Van Wagner & Wood, S.C. provide an initial free consultation to evaluate the merits of your case and provide you with an honest straightforward opinion of the expected outcome. When your case is pending, there are several steps in the proceedings during which you need do nothing and until the pretrial conference nothing more than your statements are available to your attorney. During the process of your case moving through the system, your attorney is working on another case, in court, traveling to court, or unavailable because of time needed to prepare for an upcoming court case. It is because of these times that the attorneys at Van Wagner & Wood have taken the care and time to carefully train their support staff to be able to answer your general questions. The attorneys also encourage you to provide their staff with a list of your questions and any other information that you may need to communicate to your attorney so that when your attorney speaks with the staff your information is immediately available, answered, and communicated back to you by your attorney or your attorneys assistant. Van Wagner & Woods staff has been with them for many years and can be relied upon to convey your information precisely and confidentially.
Whenever a decision must be made relating to your case an in person or telephone meeting will be requested with you and your attorney. If you need additional information, please be sure to inform Van Wagner & Woods support staff immediately so that they may arrange for an in person or telephone meeting during the attorneys first calendar opening.
The attorneys at Van Wagner & Wood always recommend that you write down any questions or information that you may have and send the notes to their office or call them with the information or questions so that your attorney is informed of the information and able to review it as soon as he or she is available.