Drug Dog's Nose Violates 4th Amendment Rights

The Supreme Court issued its opinion in Florida v. Jardines today, holding that a dog sniff at the front door of a house where the police suspected drugs where being grown constitutes a search for purposes of the Fourth Amendment.  Justice Scalia wrote the majority opinion, with Justice Kagan (joined by Justices Ginsburg and Sotomayor) concurring.  Justicie Alito dissented, joined by the Chief Justice and Justices Kennedy and Breyer.

The United States Supreme Court granted certiorari of State of Florida vs. Jardines on the single question of whether police officers conducted an illegal search within the meaning of the Fourth Amendment. The Court decided that the search was illegal.

A police officer with a drug-sniffing dog on a six-foot leash entered onto Jardines’ property. The dog alerted while on the Jardines’ porch at the front door, and sat down (the dog’s trained signal to confirm that it had detected the source of the drugs).

Police obtained a warrant based upon the dog’s alert, returned to the home, and searched the house. The search resulted in police finding marijuana plants. Jardines was arrested and charged with trafficking cannabis.

The trial court allowed the evidence to be suppressed holding that the officers had engaged in a search in violation of the Fourth Amendment because it was not supported by probable cause.

The State appealed, and the Appellate Court reversed the trial court.

On appeal, the United States Supreme Court agreed with the trial court. They found that the search was unsupported by probable cause as required under the Fourth Amendment.

The Fourth Amendment provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The police conducted a search under the meaning of the Fourth Amendment because:

1. Whenever police (the government) obtain information by physically intruding on persons, houses, papers or effects, ‘a search’ has occurred. (U.S. vs. Jones)
2. At the core of the Fourth Amendment is the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. (Silverman vs. U. S.)
3. The curtilage of a home – that is the area immediately surrounding and associated with the home – is part of the home itself for 4^th Amendment purposes. (Oliver vs. U. S.)
4. The police officer was not invited into the home. While the law provides that officers need not shield their eyes from anything they may see when they enter a home - anything in ‘plain visible sight’ can lead to probable cause (California v. Ciraolo), “no man can set his foot upon his neighbor’s close without his leave.” (Entick v. Carrington)
5. Police may approach a home in hopes of speaking with the inhabitants, but the scope of the officer’s visit is limited to both a particular area as well as a specific purpose; there is no invitation to enter the curtilage simply to conduct a search. (Kentucky v. King)
6. An expectation of privacy need not be tested. (Katz)

To read the full opinion, following this link:  http://www.supremecourt.gov/opinions/12pdf/11-564_jifl.pdf

Is http://www.VanWagnerWood.com Authoritative?

Is the VanWagnerWood.com website authoritative?

We often receive phone calls from students asking if they can cite our website in their papers due to the tremendous volume of informative data and interpretations on it (most of the thanks for that is due to our webmaster, Jodi Golisek, at Sigma One Group).

The answer is an emphatic ‘no’. Even though VanWagnerWood.com contains volumes of pages explaining nearly ever criminal offense codified under Wisconsin law, and many interpretations of technical legal terms, it does not nor does it intend to rise to the level of being a legal doctrine, nor legal advice. Hence, it cannot be cited as authoritative reference in any paper – court, term or white – nor be reused for any purpose.

VanWagnerWood.com may help those researching laws in Wisconsin because it often references the statute number, and even states statutes verbatim. A researcher can use those statute numbers for their searches on the legislative website.

The other question we often receive from students asks if the website can be copied. That answer is also an emphatic ‘no’. The content on the website is copyright protected. While neither Attorney Chris Van Wagner, nor me, are Intellectual Property experts, the Digital Millennium Copyright Act of 1998 provides clear prohibition against copying websites that are copyright protected, and provides remedies pursuable under the law.

If you are seeking legal representation for a criminal or drunk driving offense, please contact Van Wagner & Wood. If you are however researching for a paper, then the resources listed below would provide excellent starting points.

Good luck on your papers! Call us if you need a criminal defense or OWI lawyer.

Legal Research Resources:
Virtual Law Library
Wisconsin Law & Legal Resources

Are BB Guns Firearms?

Question: Is a BB gun a firearm for purposes of Wisconsin’s laws prohibiting possession of a firearm by a felon?

Answer: A BB gun is not a firearm under Wisconsin laws.

As well, air guns, spring guns and blow guns are not classified as firearms under Wisconsin laws.

What is a firearm?

For purposes of Wisconsin statutory law prohibiting a felon from possessing a firearm, the legislators specifically defined a firearm as a weapon that uses gun powder. Since BB guns use compressed air, spring load action or CO2 to fire a small BB, they are not classified as firearms.

The Court of Appeals of Wisconsin defined “firearm” to mean a weapon that acts by force of gun powder to fire a projectile. In that case, the question before the Court of Appeals was whether a disassembled gun is a firearm. The Court of Appeals found that a disassembled firearm is still a firearm.

Note - guns using smokeless powder or cordite are firearms.

Helpful Websites:
Wisconsin Felons Prohibited Firearm Hunting
Wisconsin Felons Allowed Bow & Arrow Hunting
Felons In Possession Firearm WI Laws
Wisconsin Laws
Wisconsin Felony Penalties
DNR
NRA
NRA ILA

Sobriety Checkpoints in Wisconsin

What is a 'sobriety checkpoint'?

A sobriety checkpoint is a police barricade set-up to snag drunk drivers.

Are sobriety checkpoints legal?

Under Wisconsin law, unless a sobriety checkpoint is completely voluntary, it is illegal per se. Even if voluntary, they raise red flags for violating a person’s rights under both Wisconsin law and the Constitution; consequently, more arrests based upon checkpoints will result in invalid arrests than not.

Are arrests at sobriety checkpoints legal?

An arrest subsequent to a stop at a sobriety checkpoint could very well result in a costly lawsuit and constitutional challenge. The alleged defendant would probably win the case due to the illegal stop. Consequently, sobriety checkpoints result in an enormous waste of taxpayer’s dollars that don’t actually result in valid arrests.

What if the arrested person is drunk?

Even if the person is intoxicated, evidence obtained after an illegal arrest cannot (or should not) be used to prosecute the person for the alleged act. I say “should not” because there are many District Attorneys who will proceed to trial in an attempt to get a conviction based on illegal evidence, and some DA’s will obtain that conviction. Those convictions obtained on evidence gathered at a sobriety checkpoint will almost always be overturned upon appeal as a result of an experienced appeals attorney arguing that the arrest was illegal.

What would happen if a person was convicted because of a sobriety checkpoint?

Because of the manner in which sobriety checkpoints are conducted, the Wisconsin Court of Appeals would likely reverse convictions based on checkpoints to protect people’s Constitutional rights. The axiom, “It is better that one guilty person go free than one innocent person be convicted” and defense attorneys stand to protect people’s rights.

Does the District Attorney's support of sobriety checkpoints matter?

A District Attorney’s support of sobriety checkpoints does not make them legal. DA’s do not make law; they prosecute people who’ve been arrested for allegedly breaking the law (i.e. committing a crime or wrong against the public). That also does not mean that they only seek to prosecute people who have been legally arrested; many people who have been arrested and prosecuted by numerous District Attorneys have their cases dismissed prior to trial, at trial or upon appeal to the Wisconsin Court of Appeals due to the fact that the arrest was illegal.

A Hypothetical Arrest On Evidence From A Sobriety Checkpoint

For example, if the Neenah Police Department were to establish a sobriety checkpoint, and subsequently arrest a person as a result of that checkpoint, the matter would be referred to the Winnebago District Attorney’s office. Regardless of how much the Winnebago DA might support the sobriety checkpoint, the matter should end there if the stop was illegal. If the Winnebago District Attorney proceeds to prosecute the alleged drunken driver, the matter would be set for trial and the wise alleged defendant would hire a very experienced DUI defense attorney who would then argue to the DA that the case will be lost at trial due to the illegal stop.

If the Winnebago DA proceeds, the DUI defense attorney would file a motion with the Winnebago County Circuit Court to dismiss the case based upon the illegal stop. The court would likely dismiss the case at that point, but all of the costs associated with the arrest (the costs of establishing the checkpoint, the costs of arresting the person, the costs of obtaining blood results, the costs of filing the case, the costs of the district attorney’s time, the costs of hiring the defense attorney, etc.) would be for naught.

If the Winnebago Circuit Court proceeded with the case, and found the alleged defendant guilty of operating while under the influence of an intoxicant (OWI), two outcomes would likely occur. The accused would proceed with an appeal to the Wisconsin Court of Appeals, and then file a lawsuit against Winnebago County and City of Neenah.

The result of our hypothetical sobriety checkpoint in Winnebago County that resulted in an illegal arrest of a person for an OWI would be a very costly attempted prosecution; taxpayers would pay those costs.

Helpful Information:
Wisconsin Drunk Driving Laws
Wisconsin Criminal Appeals
Illegal Search & Seizure
Illegal Per Se
Arrested? Free Initial Consultation

Columbia County Motion To Suppress Pending In Representative Wood's Case

All eyes are upon the Columbia Circuit Court (Portage, Wisconsin) as it considers what may be the first case to be decided after the United States Supreme Court ruling in Arizona vs. Gant.

The headlines have stated: State Representative Jeffrey Wood (Independent from Chippewa Falls , Wisconsin ) was arrested in Columbia County on allegations of driving while under the influence. After placing Representative Wood under arrest, police immediately proceeded to search Representative Wood’s vehicle without first obtaining a warrant. The police charged Representative Wood with OWI 3rd Offense and Possession Of Controlled Substance and paraphernalia.

Although Representative Wood originally said that he thought an attorney would be unnecessary in his case, a recent United State Supreme Court decision, Arizona vs. Gant, could directly affect his case, as well as numerous other cases.

Representative Wood stated, “I have always voted against police searches without warrants and taken a very libertarian approach to search and seizure issues, so my behavior in hiring Attorney Tracey Wood and challenging these things is completely consistent with my voting record and leaving the Republican party because I believe in privacy from governmental intrusion.”

The two Wood’s are not related.

Arizona vs. Gant is an appeal to the United States Supreme Court from an Arizona trial court in which the trial court had denied a motion to suppress evidence that had been acquired during a search of the defendant’s car after the defendant was placed under arrest and confined in the patrol car.

The US Supreme Court reversed the Arizona trial court’s ruling and remarked in its ruling that a search incident to arrest be justified by either the interest in officer safety or the interest in preserving evidence (Chimel v. California, 395 U.S. 752). The Court added that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of a recent occupant’s lawful arrest on the ground that it concerned the scope of a search incident to arrest (thus distinguishing Gant from New York vs. Belton (453 U.S. 454)).

For example, if a person is sitting in or standing next to his or her vehicle while being questioned by police, and police see evidence of a controlled substance in plain view, police can conduct a warrantless search and seize the controlled substance as well as the person (an arrest is a seizure). However, absent some evidence in plain view, police would merely be operating on a hunch - a discriminatory bias – if they search the vehicle of a person without probable cause. Once placed under arrest and confined to a patrol car, the alleged defendant would not have access to a weapon or other device, or means by which to impose imminent harm upon police officers.

Representative Wood had been arrested on a suspicion of intoxication while driving, and placed into the officer’s squad car. His vehicle was then searched without a warrant and without probable cause. While it may be true that police discovered damning evidence during that search, the search was illegal; hence, any evidence discovered during the illegal search is fruit of the poisoned search.

Indeed, it is obvious that Representative Wood isn’t seeking a quick fix plea bargain involving his arrest; rather, he wants justice. In part, while there may be questions as to Representative Wood’s sobriety, the testing methods, the stop and police procedures, the questions that Representative Wood seeks to set right are of grave importance to every citizen of Wisconsin, and across the U.S.: every person in the United States has a right to privacy that no police officer should violate.

The officer who testified at Wood’s hearing admitted that the procedure used in Wood’s search is no longer done by the Wisconsin State Patrol in the wake of the Gant decision.

That is the argument presented by Attorney Tracey Wood and the testimony given to the Columbia Circuit Court. Now, the Columbia Circuit Court must rule on the motion to suppress the evidence obtained from the illegal search.

Police Stops: Reasonable Suspicion or Probable Cause?

Police Stops For Drunk Driving in Wisconsin
What's required: Probable Cause or Reasonable Suspicion?

Contact writes,

“While doing research on the Internet in reference to SFST studies, I came across your website. I immediately noticed a very important legal error in the text of your website. In examining your website further, I noticed several more instances of this error. You state that a police officer must have "probable cause" to make a traffic stop or detention. This is incorrect. The standard for detention, which a traffic stop certainly is, is "reasonable suspicion." Reasonable suspicion is a considerably lower standard than probable cause. Probable cause is the standard to which the decision to arrest is held. Your law firm is certainly not the only entity guilty of disseminating this incorrect information. I encounter this on an almost daily basis in my profession, from police officers, defense attorneys, prosecutors and even judges. I feel that it is very important that a law firm such as yours, that specializes in criminal defense, be mindful of the information that it disseminates to the general public. Thank you for your time and understanding in this matter.”

Attorney Wood responds:

While the lesser standard of “reasonable suspicion” is appropriate for criminal offenses, “Operating a Motor Vehicle While Under The Influence” (Wisconsin drunk driving statute) is not a criminal offense in Wisconsin unless it’s a second offense or higher.

Reasonable suspicion is all that’s required for a criminal offense detention, however my position has always been that probable cause is necessary for a traffic stop, and case law supports that position.

In Wisconsin, State vs. Longcore states that probable is required for a traffic stop. On the other hand, Colstad states that it’s reasonable suspicion. The United States Supreme Court in Whren holds that it’s probable cause.

Many of the appeals that I have won which are noted on our website (http://www.vanwagnerwood.com/) contain exact language from the Wisconsin Courts of Appeal, and those state that there was no probable cause for the police stop.

Helpful information:

Wisconsin Courts of Appeal
In Wisconsin vs. Van Wagner & Wood client, the Wisconsin Courts of Appeals held that the mere crossing of the lanes was insufficient to establish probable cause for a police stop and, therefore all evidence acquired during that stop was “fruit of an illegal stop.”

Wood gets reversal on drunk driving conviction
MADISON WISCONSIN. Wisconsin Court of Appeals (14 February 2008). When a Wisconsin State Police Trooper made an illegal stop and thought his expert witness testimony and numerous prior drunk driving arrests (80+ per year) would suffice to get that evidence into a Wisconsin Circuit Court trial, he was right, and it even ended in a conviction for refusing to submit to a blood alcohol test.

Then that client hired Attorney Tracey Wood to appeal his case, and the Wisconsin Court of Appeals agreed with Attorney Wood that a mere gradual crossing over the fog line does not constitute probable cause for a stop, and search and seizure of a person.

Refusing Standardized Field Sobriety, Breath Test & Blood Test
The refusal evidence against Van Wagner & Wood’s client was not offered to demonstrate reasonable suspicion to proceed with an evidentiary blood draw or to establish probable cause to arrest. The evidence was offered to persuade the jury that the suspected drunk driver refused to take the PBT because he feared it would incriminate him. By statute, the PBT result “shall not be admissible in any action or proceeding except to show probable cause for an arrest, if the arrest is challenged, or to prove that a chemical test was properly required or requested of a person under [the implied consent statute].” WIS. STAT. § 343.303.

Illegal Search & Seizure
The 14th Amendment to the Constitution is based upon a premise: every citizen of the United States has a right under the Constitution to a reasonable expectation to privacy. However, those rights are limited. Police however often take liberties in stopping people without probable cause, and arresting people based on illegal foundations.

Arrest
An arrest is a restraint on the arrested person's freedom. The purpose of an arrest is to take a person into custody so that they may be prosecuted for a crime. Police must have probable cause to make an arrest.

Supreme Courts Limits Search & Seizure

US Supreme Court Protects 4th Amendment Rights

Arizona vs. Grant

In a 5-4 vote, the United States Supreme Court ruled on a critical aspect of Search & Seizure law that police officers have previously stepped over to gain access to evidence they would otherwise not obtain without a search warrant.

The US Supreme Court ruled that once a suspect is placed under arrest, police may search the suspect’s vehicle without a search warrant only if the suspect is within reach of the vehicle, or the police officer(s) reasonably believes evidence can be found in the car that will prove the offense for which the suspect was arrested.

Police may conduct a search and seize evidence without a warrant if and only if police discern that the period of time to wait for a warrant to be issued will cause evidence to be destroyed, or if an imminent threat exists to the safety of police or citizens.


ARIZONA v. GANT
CERTIORARI TO THE SUPREME COURT OF ARIZONA
No. 07–542. Argued October 7, 2008—Decided April 21, 2009

Representative Jeffrey Wood

As president of the Wisconsin Association of Criminal Defense Lawyers, Attorney Tracey A. Wood always cautions the general public that a charge is just an allegation, everyone is entitled to a presumption of innocence and nobody should make a rush to judgment in any criminal or drunk driving case. In the case involving Representative Wood, please keep in mind that he has only been accused, and we have not even been to court.

Some reporters have asked if we are related; no, we are not.

Acquittal - Sexual Assault – Unconscious Victim

In a Dane County (Madison, Wisconsin) jury trial, my client was acquitted on the charge of sexual assault of an unconscious victim, a class BC Felony under Wisconsin laws.

Sexual assault of an unconscious victim is a second degree sexual assault crime in Wisconsin. Penalties can include imprisonment, fines, or both. Typically, any sexual assault conviction in Wisconsin will also result in probation with lifetime supervision and mandatory a sex offender registration. Lifetime supervision, sex offender registration and even probation usually cause tremendous long-term effects, such as the inability to obtain certain employment, and restrictions on the distance that a registrant can live from a school, park or other places where children regularly gather. The term “lifetime supervision” can be misleading. In most instances, if a person maintains a clean record after conviction, and complies with all sentencing requirements, a petition can be made for termination of lifetime supervision provided at least 15 years has passed since the conviction.

For more information, refer to:
Sex Crimes
Sex Offender Registry
Lifetime Supervision
Felony Penalties in Wisconsin

Wisconsin Reported #1 in Drunk Driving?

A survey released by the Substance Abuse and Mental Health Services Administration under the Department of Health and Human Services indicated that 26.4% of Wisconsin residents surveyed said that they admitted to drunk driving. The national average in that study was 15%.

Having defended more than 2,000 people against drunk driving charges throughout my career, I was very surprised by the survey results. Those numbers do not jive with the recent DOT study that says the number of alcohol related crashes and fatalities in Wisconsin are down. Wisconsin is not one of the higher states with regard to alcohol-related crashes or fatalities.

The problem might be that the survey reportedly defined “under the influence” as having one or more drinks. That is different from the legal definition of under the influence (see Am I drunk?) Wisconsin is a very rural state, by and large, where socialization revolves around drinking (Brewers/Miller Park). We don’t have public transportation in many of our rural areas, so people tend to drink and drive after watching sporting events and hanging out with friends in bars.

The survey also indicated that Utah, which has a large Mormon population – the only state not in the double digits - had the lowest incidences of drunken driving. Other states that ranked low are in the southern blue code belt where dry counties are predominant.

As a “health study”, the federal agency well knows that surveys are the least reliable methods of conducting research. In this survey, adults in 127,283 random households were surveyed over three years (2004-2006), which by any statistical measure, would be a very small sample population. (see US Population)

While sociologist like to point to Wisconsin’s cultural history, I’ve never heard a client use a cultural excuse.

As far as “studies” go, this survey is obviously being used as yet another way to argue for greater penalties. The best way to address the issue is to have an open and honest dialogue about what the real numbers are and how best to lessen dangers on the roads--I believe that's through education and treatment options.

NBC15 interviewed me about this today. Links to the information are on our website - see Legal News.

Refusing To Submit To A Blood Test - OWI

If you are arrested for drunk driving, police may ask you to submit to a blood or breath test. If you refuse to submit to either test, you have 10 days from the date on the form in which to demand a refusal hearing, or you will lose your driver’s license for 1 year. If you were previously
convicted for drunk driving or refused a test anywhere in the United States, then you could lose your driver’s license for up to 3 years.

Helpful Information:
Standardized Field Sobriety Tests

Save your Wisconsin Driver’s License

Refusing A Test

Music Theatre Idol 2008

MUSIC THEATRE OF MADISON
5805 Dawley Drive Fitchburg, WI 53711
608-237-2524 http://www.musictheatreofmadison.com/

SECOND ANNUAL MUSIC THEATRE IDOL COMPETITION HELD IN JUNE

Music Theatre of Madison, a professional theatre embarking on its third season, will host its second annual “Music Theatre Idol” competition on June 10, 2008 at The West Side Club, 437 Cty Hwy M. in Madison. The contest is open to the public and singers ages 15 and up may enter. Tickets are $8 for audience members and $12 for contestants. A cash bar serving alcoholic and non alcoholic beverages will be available. The evening is sponsored by Van Wagner and Wood and Orange Tree Imports.

Based on the popular television show, Music Theatre Idol serves as a fundraiser for Music Theatre of Madison’s upcoming summer season. The preliminary round, closed to the public, will begin at 6:00pm. Singers who wish to enter must sing a short musical theatre song a capella for the judges. After hearing all the singers, the judges will narrow the contestants down to the top ten. At 7:00pm, the doors open to the public, who will watch the top ten perform and vote to narrow the selection to the top three. The top three will perform a final time, and the audience will vote for the winner. The top ten and top three contestants will choose their performance pieces from a list of pre selected songs, available on the theatre’s website. All participants will receive prizes donated by local businesses.

According to artistic director Meghan Randolph, the contest “is meant to be an evening of fun, laughter and applause. We want everyone to feel like a superstar because we are so grateful to everyone who helps us promote our season. Plus, we like to give opportunities to people who just love to get up and sing!”

Singers may enter online at http://www.musictheatreofmadison.com/. Tickets for audience members will be sold at the door. The evening will be hosted by Music Theatre of Madison founder Meghan Randolph and judged by three local singers, who are, according to Randolph “nowhere near as mean but just as crazy as Simon, Paula, and Randy!”

For complete information, song list and entry details, please visit http://www.musictheatreofmadison.com/ or call 608-237-2524.

... more fame than the "You Tube Divorce"!

DUI Convictions Cause For Deportation

The United States Bureau of Immigration and Customs Enforcement Department (formerly known as INS) of Homeland Security, commonly called ICE, can begin an initiation of removal proceedings of an immigrant for criminal convictions. The United States Code provides laws relating to convictions of an immigrant that will result in automatic deportation proceedings. Any alien who pleads or is convicted of any of those several types of offenses is subject to deportation. A DUI - called OWI in Wisconsin - conviction is among those convictions.

Under Title 8 of the United States Code (8 USC 1227):

Possession of a controlled substance
Any alien who at any time after admission has been convicted of a violation (or a conspiracy or attempt to violate) any law or regulation relating to a controlled substance is removable. An exception exists for a single offense involving possession for one's own use of 30 grams or less of marijuana.

Possession of a firearm
Any alien who is convicted at any time after admission of a number of firearms or destructive devices offenses is removable.

Domestic Violence, Stalking, Child Abuse, Neglect, Abandonment
Any alien who at any time after entry is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is removable.

See also:
United States Code - U.S. Code Online via GPO Access [wais.access.gpo.gov]
8 US 1227
Wisconsin Drunk Driving Laws

Question Laws, Not Verdicts

An editorial appeared in Appleton, Wisconsin's Post Crescent on March 12, 2008 following the not guilty verdict from a jury trial of a man accused of injuring a person with his vehicle while under the influence of alcohol. In this case, the defendant's blood alcohol content was reported to be 0.195 percent after the crash. Wisconsin's BAC limit is .08.

The trial was held in Outagamie County Ciruit Court last week. The defendant admitted to being drunk, but under a provision of Wisconsin law, if the accident would have occured if the driver had not been drunk, then a not guilty verdict is appropriate.

In that case, the defense was able to provide expert testimony and a witness for the accident site. Reconstruction engineers testified that the two women were walking in the road, and the accident was unavoidable. Another witness testified that he had driven by the accident scene moments before the defendant, and he had to swerve to avoid hitting the two women.

It is not an uncommon defense, and many states have similar laws. Whether or not the defense will result in an acquittal depends on whether or not the defense attorney is able to show that the accident was unavoidable. It is pretty hard to show that alcohol doesn't have an effect on a person's judgment.

YouTube Video

Wisconsin OWI DUI Conviction - Reversed On Appeal

The Wisconsin Court of Appeals reversed the Wisconsin Circuit Court judgment in Wisconsin -v- Client on the basis that the evidence obtained from an illegal stop could not sustain a conviction for refusing to submit to a sobriety test. (See Crossing Fog Lane Lines Not Reasonable Suspicion).

In the refusal hearing, the police officer testified that he had watched the vehicle gradually move across the fog lane line and gradually move back into the original lane. The vehicle was "over the line" for about 3-4 seconds. When the police officer stopped the vehicle, the defendant refused to submit the sobriety test. The court found the stop legal and convicted the defendant for the refusal.

Wisconsin law: http://www.legis.state.wi.us/statutes/Stat0343.pdf
(Wisconsin Court of Appeals, Reversal Summary, Attorney Tracey Wood).

We argued that Fourth Amendment rights protected the defendant from unreasonable search and seizure, and non-erratic driving didn't give Logan reasonable suspicion to stop the defendant. The state argued that the police officer had cause for the arrest because statutes require motorists to drive as "nearly as practicable entirely within a single lane" and "shall drive in the lane designated."

The Wisconsin Court of Appeals stated that the legality of a stop must be taken as a whole. Gradual and momentary lane changes do not substantiate reasonable cause for a stop; erratic repeated lane changes would be more in line with actions raising probable cause. In the current case, the actions did not substantiate reasonable suspicion to make a stop and seizure under the Fourteen Amendment of the US Constitution. Without the illegally obtained evidence, the conviction for refusal could not be sustained. The conviction was reversed.

Wisconsin -v- Client
Crossing Fog Lane Lines
Wisconsin Drunk Driving Laws

Commercial Driver's License & OWI's

It is always in everyone's best interest not to drive after drinking (or while drinking).

If you have a commercial driver's license - often referred to as "CDL" - it is a violation to have any alcohol before (and while) driving. A person with a regular driver's license in a regular (non-commercial) vehicle is violating the law when his or her BAC - blood alcohol content - is at .08. Police can arrest a person and the district attorney can prosecute a person whose BAC is at .05 or above. However, if a person has a commercial driver's license, any trace of alcohol is a violation. It is also a violation to drive a commercial vehicle without a CDL.

Failing The OWI Test

This is one test you can fail, and still pass the class (not get charged with drunk driving).

An arrest is not a conviction. If a person fails a blood or breath test, they are merely suspected of having driven while under the influence, while intoxicated, while drunk or totally stoned out of their mind, but that is the key word: suspected!

Whenever a person is suspected of having committed any offense, including drunk driving, they are merely accused of committing an offense, they are not convicted. (See The Burden of Proof at Wisconsin Criminal Law). As with any charge made against a person in the United States, the state (or feds for a federal charge) must prove their allegations.

Failing an OWI test does not mean that the person will be convicted of an OWI offense. In fact, many people are never convicted of an OWI accusation, and for many reasons.

If the breath testing machine used to conduct the breath test was malfunctioning, the results are inaccurate regardless of what those results may have indicated at first glance. An intoximeter can provide a false positive reading.

If the police officer stopped the person for the wrong reasons or no reason at all, then the evidence obtained after that stop might be illegal, which then means it would not be available to the prosecuting attorney. No evidence; no conviction.

Every day, police wrongly accuse people of crimes, prosecutors wrongly accuse defendants, and judges and juries wrongly convict people. It is not any of those people's jobs to find the truth about your stop by the police, about your blood or breath test, or even about the charges being brought against you. Their job is to prosecute you and punish you in the most efficient and harshest manner possible.

Your job is to defend your innocence. If you are not a lawyer with skills in and knowledge of the law equal to that of a seasoned prosecutor and near an engineer capable of dispelling the myths of a breath test, then you may want to consider hiring an attorney. You can call our office for a free initial consultation about your drunk driving (or criminal) charges and we will happy to explain the charges, the penalties, and how the law may affect you today and in the future because of that OWI. Our number is 1-866-262-4599.

If you reside outside of Wisconsin, you should contact an attorney in your area for drunk driving defense. (See Out of State Attorneys).

Helpful information:
Wisconsin Drunk Driving Laws
Field Tests Preliminary To OWI Charges
Determining Your BAC - Blood Alcohol Content

Is Drunk Driving A Crime?

Is a first offense OWI illegal? It is not a crime.

Under current Wisconsin law, a first drunk driving offense is not a crime. It is still illegal. It is considered to be a civil wrong - a wrong against the local community. Wisconsin law makes a first drunk driving offense illegal, but not criminal. A second offense is criminal; it is a misdemeanor violation of law punishable by jail time, fines or both.

Helpful information:
Drunk Driving Overview

Tracey A. Wood Named to Wisconsin Super Lawyers 2007

Tracey A. Wood Named to Wisconsin Super Lawyers 2007

Myths Of Field Sobreity Tests

Field Sobreity Tests Are Bogus

The myth of field sobriety tests is that they measure sobriety. The truth about field sobriety tests is that they are not tests and they do not measure sobriety. They are bogus. If you didn't do well on the police "field sobriety tests", don't feel bad; they were designed to assure that you couldn't.

Fifteen years ago, the National Highway Traffic Safety Administration (NHTSA) discredited the "finger to nose test". The NHTSA proved that no one, whether sober or intoxicated, could perform that test reliably.

While in training, police officers are informed that the "finger to nose test" is not reliable, yet police regularly administer the bogus test because no person can pass it.

Flamingos are the only creature on this planet that can steadily stand on one foot. People however cannot stand on one leg or walk heel-to-toe (sometimes called the walk-and-turn test) and remain balanced.

During training, police officers practice standing on one foot and walking heel-to-toe, so they don't fail the test during a demonstrating of it to a person whom they have stopped on the side of the road suspect of driving under the influence. Even though they know it takes practice to perfect the ability to stand on one foot for any length of time or walk heel-to-toe, they routinely administer the test because they know it is highly unlikely anyone can complete it successfully.

Helful links:
Wisconsin Drunk Driving Laws
Drunk Driving Field Tests
Drunk Driving Blood Tests
Online Blood Alcohol Content Level Chart

Should You Hire An Attorney For An OWI Charge?

OWI - Operating While Intoxicated - Convictions Are Permanent

If you are arrested for driving under the influence of any substance - alcohol, prescription medication, over the counter drugs such as ephedrine, illegal drugs, or any other substance that impairs the driver - a OWI conviction will be permanently recorded on your driving record, with the exception of a first offense PAC charge of .08 - .099, which is intended to come off the permanent record after 10 years. Whenever a driving history record is checked with the DOT, they report any OWI on the record, and unless it is a first offense and removed after the ten year period of time, a OWI will forever be reported.

In Wisconsin, as with most states, OWI laws are strictly enforced. Although you are not required to have an attorney, it is a very good idea to retain one if you have been arrested or charged with an OWI. If you do not know of an attorney who is learned in the many strategies of challenging a drunk driving offense, please feel free to call our office (608-284-1200). If we are not available to help you because of your location or the timing of your trial, we definitely can refer you to the right attorney. We either know or know well of the practice and expertise of every DUI defense attorney in Wisconsin and across the nation. You can also access our referral network of drunk driving defense attorneys on our website.

OWI and Vehicular Injury or Vehicular Homicide

If you have seriously injured or killed another person, there should be no questions as to 'whether' you should hire an attorney, the question is 'when'.

When To Hire An OWI Attorney

If you wait to hire an attorney until your court date, several problems can arise. First, you probably will have already lost your license because the administrative hearing regarding your license is held before your court date. Second, you may not be able to contact or to retain an attorney in time for your court hearing. Despite the fact that there seem to be many attorneys who handle OWI - or DUI Defense as it sometimes called - not all attorneys have handled cases involving prior OWI convictions and not all of them will be available... OWI charges account for more arrests in the state of Wisconsin than other serious criminal charges.

Timing Can Be Everything For Reducing Charges or Eliminating Charges

If you do not hire an attorney early on in the process, time can remove opportunities for discovery, challenging evidence, filing motions to challenge charges or testimony, and other factors that can and usually do have a tremendous impact on your case.

Free Initial Consultation

This isn't intended to be a plug for our firm, but we do offer a free initial evaluation of the charges against you, as do many attorneys in Wisconsin. Whether you email or call our office, you will get a response from an attorney. We'll be able to give you a good idea of where you stand, the charges you face, and how the law applies to your situation based on the facts that you provide to us. (More information at Drunk Driving Defense Center)

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. Your attorney will usually receive the discovery materials during that meeting along with an initial offer in your case.

If Van Wagner & Wood represents you, it is not necessary for you to appear in person at the pretrial conference unless your attorney tells you otherwise. 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, you will receive information explaining the initial offer along with other details above discover, if applicable.

NOTE: The initial offer is not written in stone!

Bill Introduces Proposed Changes To Wisconsin OWI Laws

Wisconsin Assembly Bill 490 Proposes Stiffer Wisconsin Drunk Driving Laws

Wisconsin Assembly Bill 490 was introduced on Monday to propose changes to Wisconsin's drunk driving laws, which if passed would result in mandatory jail and prison sentences and increase a OWI 4th offense to a felony. The changes would have effects listed below.

• 1st OWI No change.
• 2nd OWI Mandatory 30 days jail time.
• 3rd OWI Mandatory 1 year prison sentence.
• 4th OWI Felony instead of misdemeanor; mandatory 2 year prison sentence.
• 5th OWI Mandatory 3 year prison sentence.
• 6th OWI Mandatory 4 year prison sentence.

The list below compares Wisconsin's current OWI laws to the proposed changes.

• 1st OWI Currently, a first operating while intoxicated offense is not a crime absent any other circumstances; however, a person's driver's license can be revoked for refusing to submit to a blood alcohol test. Proposed legislation would not change the current law.
• 2nd OWI Currently, a second drunk driving offense is a misdemeanor absent any other circumstances, with suggested jail time and fines (called sentencing guidelines) at the discretion of the court. The proposed legislation includes a mandatory minimum jail sentence of 30 days in jail.
• 3rd OWI Currently, a third drunk driving offense is a misdemeanor absent any circumstances that may increase it to a felony (such as a vehicular homicide). Currently, sentencing for a 3rd OWI is at the discretion of the court, and usually more severe than the sentencing guidelines. Under the proposed legislation, the courts would be required to sentence a person convicted of a 3rd OWI to a mandatory minimum (and maximum) of one year in jail.
• 4th OWI Currently, a fourth drunk driving offense is a misdemeanor, with the same general rule applying to sentencing. Courts usually impose more restrictive sentences than the sentencing guidelines suggest. Under the proposed law, a fourth OWI conviction would be a felony, with a mandatory minimum prison sentence of 2 years.
• 5th OWI Currently, a fifth drunk driving offense is a felony. Under the proposed law, the classification would not change, but the court would be required to impose a mandatory minimum prison sentence of three years.
• 6th OWI Currently, a sixth drunk driving offense is a felony. Under the proposed law, the classification would not change, but the court would be required to impose a mandatory four year prison sentence.

Occupational License

Can I get an occupational license to drive?

ANSWER:

Maybe.

1st OWI: If this was your first drunk driving conviction, you may be able to obtain an occupational license immediately unless you have lost your license for some other reason within the preceding 365 days. Other factors may also affect your ability to obtain an occupational license.

2nd OWI, 3rd OWI, 4th OWI +: If this was your second or subsequent drunk driving conviction, there is a waiting period of a minimum of 60 days, however, about half of the people charged with a 2nd OWI and most 3rd or higher OWI offenses will result in a waiting period of at least one year because of a special rule that applies to the number of OWI's within a specific period of time. If you have two OWI's within a 5-year period of time, there is a mandatory one year wait for an occupational license. You also must have had a valid license before being arrested for drunk driving. You may not have had your license taken for any other reason within the preceding 365 days. There no longer is anything called an “occupational CDL”. Other factors may also affect your ability to obtain an occupational license.

The Department of Transportation will not issue an occupational license to you until you file proof of insurance with them. Normally, the proof is handled by obtaining an SR-22 from your insurance agent. (Note - Insurance carriers usually raise insurance rates when the SR-22 is obtained from them. Some insurance companies also lower your coverage).

Most insurance companies that file proof of financial responsibility will mail the certificate directly to WisDOT. Some companies will give the SR-22 to the customer and some companies will electronically file the information to WisDOT’s computer system. The electronically filed information is usually entered automatically on the customer’s driver record within one or two working days.

How To Obtain An Occupational License

An occupational license is obtained from the Department of Transportation. The DOT will require a completed SR-22 before issuing the occupational license.

Limits On Occupational License

You may not obtain an occupational license before the start date of your suspension. As well, an occupational license is limited. Occupational licenses restrict the driver by qualifying the purpose for which the driver may drive, the number of hours that may be driven, and in some instances, the times of day. Typically, the restrictions include work or homemaking purposes, limited to no more than 12 hours per day and no more than 60 hours per week, however, as noted, there no longer is an occupational commercial driver's license. The DOT maintains a schedule of the limitations.

Van Wagner & Wood Procedures

If Van Wagner & Wood represents you, and your driving privileges were administratively suspended, you will receive information about SR-22 insurance and how to obtain your occupational license.

Helpful Information:
Operating after revocation or suspension
Save your driver's license
Wisconsin drunk driving laws
Wisconsin Department of Transportation (DOT) Information about reinstatement
Wisconsin DOT Proof of Insurance (financial responsibility)
Wisconsin DOT For drivers under the age of 18 in lieu of having a sponsor.