It's always Christmas at Cleo's Brown Beam Tavern, and what better way to celebrate the holidays that with a drink (or five). You feel pretty good driving across Fox River, but unexpectedly, the unmistakable red and blue lights of an Appleton police cruiser flash in your rear view mirror. What should you do or say? Will you be arrested for DUI? Will you be forced to serve jail time? FindLaw has created this guide to answer these questions and more about your Appleton DUI case.
Sweet Silence ...
Volunteering information to police offers might be risky in many types of criminal cases or investigations, but perhaps especially in a traffic stop or sobriety checkpoint-type of situation. The dangers of speaking are numerous: you may "confess" your guilt ("I just had a couple beers"), you may provide additional facts that are relevant to your guilt ("I'm on my way home from the bar"), you may lie or accidentally misstate a fact (this probably won't look good in court later), or the officer could misunderstand your statement entirely.
This doesn't mean you don't say a word to a police officer who is asking you routine questions, but it may be wise to refrain from volunteering extra information. Instead, remain calm and politely cooperate with the officer's instructions. Police are allowed to temporarily detain you for investigation when they suspect you've committed a crime, and the more you cooperate the quicker you will be released (hopefully). Another good idea -- once you've pulled over, put on the dome light, place your hands on the steering wheel and don't reach into your glove box.
Operating While Intoxicated
In Wisconsin a DUI is technically called an "OWI," or operating while intoxicated. There are four ways to earn an OWI charge if you are over 21 years old:
- Driving with a blood alcohol content, or "BAC," of 0.08 or greater;
- Driving while under the influence of an intoxicant, including alcohol, legal prescription medications, illegal or controlled drugs, or other chemical substances;
- Driving with a detectable amount of any restricted controlled substance in the blood stream;
- Driving while under the influence of a controlled substance or any other drug.
The OWI laws were written vaguely on purpose, so they apply to a variety of circumstances. BAC evidence is not necessary if the officer judges that you are impaired. Furthermore, Wisconsin has a zero tolerance policy for individuals under the age of 21 who drink and drive, who can be arrested for OWI with a BAC of just 0.02%.
Implied Consent and Breath Test Refusal
If you possess a Wisconsin driver's license, you've already consented to providing a chemical sample. The implied consent law in Wisconsin states that you must obey the police officer's order to blow into the breathalyzer, or else face consequences. Specifically, your license will be suspended for one year after your first refusal, which increases to two and then three years for additional refusals.
You will have ten days to request an administrative hearing from the Wisconsin Department of Transportation. At this hearing, you can challenge whether the officer had probable cause to believe you were violating OWI law, or provide a medical reason for refusing the chemical test. After 30 days you can apply for an occupational license, which gives you minimal driving privileges to help you get to work or school. To read more about implied consent and the consequences of refusal, check out this handy guide (PDF) provided by the Wisconsin legislature.
It generally does not help your case to refuse the chemical test. First, refusal does not preclude OWI charges because most OWI charges do not require BAC evidence (just impairment). Second, your refusal could be used as evidence that you knew you'd fail, and used in court as "knowledge of guilt." Finally, the suspension periods stack up consecutively, so you could end up with an OWI suspension, plus the additional year suspension for refusal.
The Fourth Amendment and You
The Fourth Amendment to the U.S. Constitution provides many of the essential privacy guarantees that many take for granted, and is the primary method defense lawyers use to challenge OWI charges. A defendant can challenge the constitutionality of a traffic stop with a motion to suppress evidence, which puts the burden on the State to prove that the search or seizure was reasonable. Any evidence gathered in violation of your constitutional guarantees may be unusable in court based on the exclusionary rule. In fact, your entire case could be thrown out of court if the judge finds that the officer did not hold a reasonable suspicion that you were committing a criminal offense when he or she initiated the traffic stop.
The penalties for OWI in Wisconsin are purposefully harsh. Your specific sentence depends on a variety of factors, such as how many prior OWI's you've suffered, your BAC, and whether you caused an accident. A first offense could net you up to a $300 fine, a six to nine month driver's license suspension, and the mandatory installation of an interlock ignition device.
If you are convicted of more than once offense within a ten year period, expect mandatory jail time, a larger fine and longer suspension period. Wisconsin does not have a standard "look back" period like most other states, so your OWI convictions will stick with you for life. If you are convicted of a fourth OWI or more you can be convicted of a felony and shipped off to prison for a year or more.
In some circumstances, the prosecutor may allow you to plead to the lesser charge of "reckless driving involving alcohol," commonly referred to as a "wet reckless." This favorable plea is more likely when BAC is barely illegal, there was no accident and you have no prior OWIs. But beware -- a wet reckless will be considered a prior OWI for sentencing purposes in subsequent cases.
OWI convictions can have serious consequences, and anyone who is facing charges may want to contact an attorney specializing in OWI defense to see what options they have under their specific circumstances.