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Attorney Tracey Wood wins appeal challenging evidence of 4th drunk driving offense (a crime in the state of Wisconsin with mandatory jail time and stiff fines). Attorney Tracey Wood wins appeal challenging prior conviction in case that accused her client of third drunk driving offense. |
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Prior OWI Drunk Driving Convictions
Under Wisconsin law, if you have past drunk driving convictions or refusal revocations, you're probably subject to higher penalties for a new drunk driving. But, even though you may fall into one of these categories, these penalties may not apply to you if the court didn't follow proper procedures in the past case. The statutes state that a second drunk driving within ten years of a first drunk driving or refusal revocation, counted from dates of violation, is a second offense. Third offenses count all past drunk driving and refusal revocations in your lifetime, though DOT records generally don't go back past January 1, 1988, and convictions before that date actually are not counted. Convictions and refusal revocations from other states also count. But, if your past conviction or convictions resulted from a guilty or no contest plea and that past conviction resulted in your going to jail, then the court which accepted that plea was required to follow specified procedures to assure that the plea was a knowing and voluntary waiver of your right to a jury trial, privilege against self incrimination and, if you didn't have a lawyer, your right to counsel. If those procedures were not followed -- and many judges have taken shortcuts in plea proceedings because they were trying to do them quickly -- then the plea is probably Constitutionally invalid. If so, it may not be counted as a prior offense in determining the grade of the present case, i.e., second, third, etc. In Wisconsin, there is a "step-up" method for handling multiple OWI convictions for the same person; however, it does matter where you were previously convicted. (Refer to: Attorney Tracey Woods article regarding Challenging Prior Drunk Driving Convictions in another state). Wisconsin Drunk Driving Law prohibits and defines it as an illegal activity in Wisconsin for a driver over the age of 21, with no OWI (Operating While Intoxicated) convictions to operate a motor vehicle, with a Blood Alcohol Concentration (BAC) of 0.08 or greater, while under the influence of an intoxicant, or while under the influence of a controlled substance or any other drug. According to Wisconsin Drunk Driving Law, a driver is "under the influence" when his or her ability to operate a motor vehicle is impaired. OWI number 1: On a first OWI conviction there may be a fine ranging between $150-$300, plus $355 surcharge with a suspension or revocation of your driving privileges ranging between 6-9 months; however, an occupational license can usually be availed immediately or your driving privileges may be retained while charges are pending provided a request for a hearing is filed within 10 days of the date of the violation and you prevail at that hearing. As the number of OWI conviction increases, the penalties accordingly increase, having a fine ranging between $600 - $10,000, with $355 surcharge and a possible jail term ranging between 6 months to 6 years. OWI-DUI-DWI charges can be much more severe if the person is found and proved guilty of causing injury, causing great bodily harm, or vehicular homicide. Those fines can reach up to $100,000 and a possible jail term of 25 years. Additionally, these more severe actions may also result in civil lawsuits. For drivers with three previous OWI convictions, the limit is lower: they are not allowed to operate a motor vehicle if their blood alcohol content is greater than 0.02. Challenging invalid prior convictions is an essential component of proper defense of a third or subsequent offense drunk driving case. Nonetheless, it is a defense which is frequently overlooked. If you are charged with a third or greater offense drunk driving, it is important that you select an attorney who is familiar with the grounds for Constitutional challenges to past convictions. Past convictions may be challenged in a new case without reopening the old one. Because first offense cases are not considered criminal, the validity of past convictions normally is an issue only in third and greater offense cases, i.e., only when a challenged past conviction was itself criminal. About The Author Attorney Tracey A. WoodAttorney Tracey Wood is not your average drunk driving attorney. Attorney Wood was the first drunk driving defense attorney in Wisconsin to be appointed to the National College for DUI Defense Board of Regents. She was the first Wisconsin attorney to be appointed as a Standardized Field Sobriety Test Instructor. Attorney Wood won an acquittal on the largest military case every prosecuted for theft. She is nationally known for her expertise in drunk driving defense and a regular speak at drunk driving seminars. [More about Attorney Tracey Wood]
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