Being arrested for an OWI can not only be stressful but it is confusing as well. Paperwork and deadlines aren't always easy to understand and understanding the court process can be difficult. Our FAQ section answers some common questions you may have before we have an opportunity to speak.
The Notice of Intent to Suspend outlines the procedures for demanding the Administrative Suspension Hearing. Thus, this document is very important. In short, the Notice tells you that you have 10 or 13 days from the Notice date to demand an administrative suspension hearing. You have 10 days if the officer provided you with the notice in person or 13 days if the officer mailed the notice to you. For purposes of the administrative suspension hearing, only business days count. The hearing is demanded by filing the Administrative Review Request form. The officer should have provided this form to you. If you fail to timely demand the administrative suspension hearing, your license will be administratively suspended for 6 months. That suspension would start 30 days from the date on the Notice of Intent to Suspend Operating Privileges.
The Administrative Suspension Hearing is an important part in fighting a drunk driving charge. It is a key opportunity to gather information related to the offense. You are allowed to obtain the police reports prior to the hearing, subpoena officers to the hearing, question the officers and tape record the hearing. In my experience, I have won cases based in part on the information that was obtained at the Administrative Suspension Hearing. Therefore, exercising your right to this hearing is critical. Additionally, if the DMV suspends your license after the hearing, I can file documents to attempt to stay the suspension during the pendency of the case. Some attorneys do not demand an Administrative Suspension Hearing, but I find it is an important tool in defending a case and to keeping a client’s license potentially valid while the case is pending and a determination is made by a jury or the courts as to their innocence or guilt.
An occupational license will allow you to drive up to 12 hours per day but no more than 60 hours per week. Hours of operation must be submitted to the Wisconsin DOT on the application that is required to be submitted. The application breaks up the drive time into half-hour intervals. You are allowed to break up your hours of potential driving in this manner. Thus, you could literally drive every other hour (12 hours per day) for five day during each week (60 hours per week). Only actual drive time is counted. Thus, if it takes you an hour to get to work and an hour to get home, and then you work 8 hours (at a factory or office) all you would have to include on the application is the two hours of actual drive time. The time that you spend at work, not driving, does not have to be included. The DOT no longer issues occupational licenses for the operation of commercial motor vehicles. Finally, note that if you obtain an occupational license, you must operate only within the hours of that occupational. There are serious consequences, including possible jail, for operating outside your hours.
When you are arrested for drunk driving, if you refuse to provide a chemical test of your breath, blood or urine, the officer should provide you with a document entitled Notice of Intent to Revoke Operating Privileges (Notice hereinafter). This document is very important, however often clients do not read this form. The Notice advises the arrestee that he has 10 days from the notice date on the form to demand a refusal hearing as part of challenging the drunk driving. If a hearing is not demanded within that 10 day period, the arrestee’s drivers license will be revoked for either 1, 2, or 3 years (depending on the number of prior violations) and will count as a drunk driving on the person's driving record. That revocation takes place 30 days after the notice date on the Notice of Intent to Revoke if you do not demand the hearing. To demand the hearing, the arrestee must file a WRITTEN request for a refusal hearing. Failure to file a written request within the 10 day period will be fatal to further defending your drunk driving and litigating the refusal allegation. If you are alleged to have refused to take a chemical test of your blood, breath or urine, your best bet is to contact an DUI attorney immediately.
Whether you refused to submit to a chemical test of your breath, blood or urine is a legal question. Providing a sample is not always determinative of whether there was a refusal. Prior to requesting a chemical test sample, an officer has an obligation to read you a form entitled the Informing the Accused form. The reading of the form is required under Wisconsin law. After the officer reads you the form, he will ask you whether or not you wish to submit to an evidentiary chemical test of either your breath, blood or urine. The officer is allowed to pick the type of the primary test. Anything less than an unequivocal "yes, I'll take the test", could be seen as a refusal. Furthermore, even if you refuse, the officer has the right to literally hold you down and draw blood from you. Many times the threat of this action is enough to get a person to agree to the test. The problem is you cannot cure an earlier refusal. Thus, if you initially refuse testing, but subsequently change your mind, for instance in response to the officer's threat to hold you down, and then give the sample, you could still be charged with refusing, even though in the end you actually submitted to the test. If the officer provided you with a document entitled Notice of Intent to Revoke Operating Privileges you have been charged with refusing. In this situation, it is critical that you immediately contact a qualified attorney. You have only 10 days from the date of the Notice to request a refusal hearing. If you fail to timely request the hearing, your license will be automatically revoked. Additionally, taking a breath test on the roadside does not satisfy your obligation to submit to testing under Wisconsin law. I often hear clients complain that the reason they refused testing at the station or hospital was because they had already tested over the legal limit on the breath test offered at the road side. The breath test offered on the road is called a preliminary breath testing (PBT) device. For purposes of Wisconsin law, it is inadmissible in all proceedings except at a motion challenging probable cause to arrest. It is not an evidentiary test. Unfortunately, by taking the PBT you have not complied with the Wisconsin Implied Consent law. In other words, the officer has the right upon arrest to request you to submit to an evidentiary chemical test of your breath even though you had previously submitted to a PBT on the road side. More importantly, refusing to submit to the request could be considered a refusal.
The right to a jury trial is arguably your single most important right. In all OWI cases (except refusal proceedings) you have the right to have your case tried to a jury. In a criminal OWI case (OWI-2nd or subsequent, or causing injury or death by OWI), the right to a jury trial is automatic. The jury will consist of 12 people who must return an unanimous verdict. Before you ever reach the jury trial stage, Piel Law Office exhausts all avenues of investigation of your case and discusses potential defenses at trial to reach the best outcome for each of our clients.
In Wisconsin, the law is extremely liberal in determining which prior convictions count. There are two specific look back windows. If there is a prior conviction within the last 10 years, the new violation will be considered a second offense. If there are two prior convictions since January 1, 1989, then the new violation will be a third offense. For purposes of third or subsequent offenses, the look back period is lifetime. However, when the legislature enacted the change in the law they decided to start your lifetime on January 1, 1989. Thus, only violations on or after January 1, 1989 count for the purpose of determining prior convictions. Convictions, revocations and suspensions from other jurisdictions and from recognized American Indian tribe jurisdictions also count. Also, refusal revocations from Wisconsin or other jurisdictions count. While the definition of conviction is very broad, not all prior convictions count. Thus, if you have a drunk driving related offense in another jurisdiction, it is critical that you contact a qualified attorney to determine if it can be counted in Wisconsin.
Work release is commonly referred to as Huber release privileges. When a county jail sentence is imposed most courts will allow work release privileges. Only in very limited cases will the court deny a client Huber release privileges. However, Huber rules are very strict and it is important to comply with all requirements to maintain your privileges. Unfortunately, if you are sentenced to prison, Huber release privileges will not be allowed. Furthermore, I have seen some jails refuse to release clients when the client's job involves serving alcohol. I have also seen jails refuse to release a client where the job involved driving a vehicle or where the client did not have transportation to his job.
Probation can be given in OWI 4th and subsequent cases. However, there is a minimum mandatory jail sentence that the probationer must serve as a condition of probation. Not all courts use probation in OWI cases. To determine if probation is an option, it is best to discuss your case with a qualified attorney.
Whether house arrest (electronic monitoring) is an option depends on the county. Some jails always offer electronic monitoring, while others will never put a client on electronic monitoring. The judge or the prosecutor will play a significant role in whether the client is allowed to serve a sentence on electronic monitoring. Some judges will never order electronic monitoring. Others have no objection to it. Similarly, some prosecutors have no objection to electronic monitoring, while others are rabid opponents. In the end, the decision will fall on the jail. Note that some jails require a defendant to serve a portion of the sentence in jail before the defendant would become eligible for house arrest. To determine if this is an option you must contact a qualified attorney.
Unfortunately, if you have a CDL license (commercial driver’s license) there are very significant consequences if you are convicted of an OWI. Those consequences include disqualification and no occupational license to operate a commercial motor vehicle. More importantly, if you are convicted of an OWI-1st, even in your own motor vehicle, you will be disqualified from operating a commercial motor vehicle for one year. This disqualification is separate and distinct from any revocation or suspension. It starts at some point after the conviction, when the DOT receives notice that you have been convicted. There is lifetime disqualification in certain circumstances where a person is convicted of two or more violations, or where a person uses a motor vehicle in the commission of certain felonies. To determine the applicability of disqualification to your case, it is critical that you speak with a qualified attorney.
While it can be used, in most cases, it will be used to reduce a jail sentence not eliminate it completely. It can also be useful in reducing a fine. There are a few cases in particular with specific circumstances where this was granted in lieu of jail when my office pursued this option in OWI second offense cases. To learn more about whether it could be considered in your case, contact my office to discuss further.
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Waukesha County Treatment Court links for OWI and Drug Treatment Court. OWI Treatment Court is an option for OWI third and fourth offense cases in Waukesha County and is designed to reduce recidivism.
Find information on S Stop program in Winnebago County designed for second and third time OWI offenders as a jail diversion program requiring participation in treatment and community service and compliance with monitoring programs.
Learn more about Dane County Treatment Court and link to Program Manual. Dane County offers a treament court option for Dane County residents charged with an OWI third offense of .20 or higher.
Resources available to veterans charged with criminal offenses who reside in Dane County or a nearby county without a treament court program. To be considered, veterans must also be eligible for veterans health benefits.
Outagamie County Veterans Treatment Court is an option for residents of Outagamie County.