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Hayes & Rothstein

Recent Results OWI

Dismissal of OWI

Yet another OWI dismissal, this time in the City of Brookfield in September 2016.

Details about the Device Means No IID Order

A judge in Winnebago County in August 2016 granted our motion to waive the IID order after the judge denied the motion of another attorney who had a client with the same BAC in excess of .150. The judge said the difference was that we had done our homework and presented extensive documentation showing that the Intox machine used in our client's case had a history of significant discrepancies. With the evidence that we produced the prosecutor was not able to meet the burden of proving that at the time of operation our client had a BAC of .15 or above. Our client saved over $1,000 and was relieved of the burden of repeatedly blowing into the device. Our client was very appreciative of our hard work.

Amendment to Reckless Driving

Despite a blood alcohol concentration above the legal limit, in January 2017 we were able to negotiate an amendment to reckless driving based on research showing that an unusual medical condition was likely to be the cause of the reading in excess of the prohibited alcohol concentration. This was very important for our client because of potential professional ramifications of a conviction.

Dismissal of All Charges

In January 2017, we concluded a case in circuit court with the complete dismissal of all charges following a 2015 arrest for operating under the influence 2nd offense that occurred in a private parking lot.

OWI and Drug Possession Criminal Charges in Racine County Dismissed

In August 2015, we prevailed in a motion challenging the stop of our client's vehicle. The judge ruled that the officer did not have probable cause to stop our client's vehicle. As a result all evidence obtained as a result of the illegal stop was suppressed. All charges were dismissed.

Our client had just graduated from college and wanted to obtain employment in the criminal justice field. He was extremely relieved that this matter, which could have prevented his professional plans, was successfully resolved.

Good Start in January 2014

During the first two weeks in January, we very successfully concluded three operating under the influence cases with a dismissal, an amendment to reckless driving, and a non-issuance. For an OWI 2' offense arrest dating back to November 2012 we successfully negotiated a complete dismissal in Waukesha County Circuit Court despite alleged impaired driving. We pointed out that the blood test results showed our client had been taking prescription medication within the prescribed range. In another case we were able to negotiate for the dismissal of all charges. In a Milwaukee County Circuit Court matter that had been pending since December 2012 involving a moderate BAC combined with Vicodin and a prescription medication, we convinced the prosecutor to refrain from issuing charges. We had three very satisfied clients in the first half of January 2014.

OWI to Reckless in Milwaukee Suburb

In May 2015, with the help of a forensic toxicologist we hired, we were able to negotiate an amendment of an OWI case to reckless driving in a municipal court in a Milwaukee suburb. The amendment was achieved because of our perseverance, which included 6 court appearances. Our client was extremely pleased.

OWI 2nd to OWI 1st so No Jail

In April 2015, we successfully challenged a first offense OWI conviction from 2006 on behalf of our client who was charged with second offense OWI for an arrest in 2014. We obtained an order vacating the 2006 conviction so that the 2014 arrest was amended to a first offense civil OWI with no jail.

No Sex Assault Charges Issued

In June 2015, we successfully defended a 19 year old college student who was alleged to have sexually assaulted a 6 year old girl in 2013. Our client vehemently denied the allegation. We investigated the case thoroughly and we were able to convince the District Attorney that what the girl claimed could not have occurred. A criminal conviction for this or any other alleged crime requires proof beyond a reasonable doubt. No criminal charges were issued. Our client and his parents were very grateful and extremely relieved for the successful defense.

OWI and Refusal Dismissed in Cudahy

On a very cold night our client was found asleep in his vehicle with the engine running. In March 2015, we convinced the prosecution that these facts alone did not constitute operation and accordingly the OWI ticket and the refusal charge were dismissed.

Speeding Professor with a Sense of Humor

In April 2015, a professor, when asked by an officer why he was traveling 26 miles over the limit,
said, "I am a professor. I need to get home to grade papers." We negotiated a very fine resolution.

Felony Drug Charges Dismissed

In February 2015, we were successful in obtaining a complete dismissal of felony drug charges following a Shorewood officer's illegal search of our client's vehicle following a stop for operating under the influence.

OWI Amended to Reckless

In April 2015, our client had been drinking prior to a Milwaukee County expressway collision with a 5 car chain reaction. The deputy found 22 cases of beer in her car for a party. At the roadside she had a BAC of .095. Our representation resulted in the tickets for OWI and inattentive driving being resolved with one conviction for reckless driving, a non-criminal matter.

Milwaukee County Criminal OWI Charge Amended to Reckless Driving

In June 2012 a criminal OWI 2nd offense case with a blood alcohol concentration of .15 was amended to a civil offense of reckless driving with no incarceration, no loss of operating privileges, no assessment, and no counseling. The amendment followed a motion to dismiss that involved repeated open record requests to the Cudahy, South Milwaukee, and Oak Creek police departments to determine what information at what time was transmitted from various officers of one department to officers of another department that eventually led to what we believed was a stop based on mistaken identity. The result was particularly gratifying for our client who anticipates graduating with a degree in criminal justice and wants to be a police officer. A conviction for operating under the influence 2nd offense would have prevented fulfillment of his ambition.

OWI Not Guilty Verdict Despite 3 Mixed Drinks and 3 Shots

A jury returned a not guilty verdict to operating under the influence and operating with a prohibited alcohol concentration in October 2013 following an arrest by the South Milwaukee police department wherein the officer claimed he had observed our client weaving prior to rolling through a stop sign.  The officer positioned the video so that the field sobriety tests were not recorded.  The officer alleged that our client had failed some of the field sobriety tests. Despite evidence that our client had 3 mixed drinks and 3 shots over a period of 2 1/2 hours, Attorney Michael Banaszak  was able to convince the jury that the prosecution had failed to meet its burden of proving guilt on either count. Our client was extremely pleased with the dismissal of the case and the restoration of his record.

Milwaukee Drug Charge Dismissed

In July 2012 we obtained a dismissal of the charge of possession of a controlled substance/marijuana following our motion challenging the illegal entry into a house where our client was seeing a friend. The City of Milwaukee police officers had claimed they entered the residence to investigate a noise complaint and thereafter saw marijuana in plain sight. The case was dismissed.

BAC .14 - Officer Not Prepared - We Were

In July 2012 in a municipal court in Kenosha County we proceeded to trial for a client who had an Illinois driver license. A conviction for first offense operating under the influence in Wisconsin would have subjected him to harsh penalties in Illinois. Early in the trial it became apparent that the officer was not well prepared. We were. We challenged every piece of evidence that the prosecution offered including the .14 BAC reading on the evidentiary breath test. The judge took each of our objections under advisement and entered a briefing schedule. We submitted a strong brief. The prosecution did not, choosing instead to offer an amendment to reckless driving which our client, who was very grateful, directed us to accept.

Oconomowoc OWI 2nd Dismissed

In February 2012 a criminal case of operating under the influence against our client who had a blood alcohol concentration of .20 was dismissed following a motion challenging the right of a Village of Oconomowoc Lake officer to stop and arrest our client in the Town of Oconomowoc for an OWI offense bearing no relationship to anything occurring within the Village of Oconomowoc Lake.

Dismissal of Delivery of  Psilocybin

In May 2012 a student at a university in Milwaukee County was arrested and charged with manufacturing and/or delivering psilocybin in an amount of 500 grams or more and possession with intent to deliver marijuana in a quantity of over 200 grams.  Our client told us at the time of being retained that his goal was to avoid a felony conviction.  We believed that we would be able to accomplish a better result - and we eventually did - the complete dismissal of all charges.

Waukesha County .10 Amended to Reckless Driving

In December 2011, a Waukesha County municipal court judge approved an amendment to reckless driving following our client's breath test result of .10 at the police station and a preliminary breath test result of .05 at the roadside. Taking advantage of a recent federal court ruling, we were able to obtain a court order permitting our expert to testify that at the time of operation our client's alcohol concentration was .03. The expert used the .05 result from the preliminary breath test. We were able to successfully argue that while the prosecution cannot use the preliminary breath test as evidence against a defendant, the fact that a defendant is entitled to present a defense raises constitutional implications requiring a judge to consider the results of a preliminary breath test if it offers benefit to the defendant.

Dismissal of OWI (2nd Offense) - Milwaukee County Circuit Court

After the judge granted our motion to dismiss the case in February 2011, our client said: I don't even know what to say. I am so happy. This is just a fantastic job. This is fantastic news. The whole thing is dismissed, gone, over, done. Wow, that is incredible! The judge obviously made the right call and the right decision. That is just fantastic. I cannot be happier. Thank you!

New Year's Eve - No Charges

It was New Year's Eve 2011 when our client was stopped on suspicion of operating under the influence 4th offense. The City of Milwaukee officers thought this would be an easy conviction. The officers performed field sobriety tests outside the view of their video cameras and claimed that our client failed the field sobriety tests. Our client advised that he had not consumed any alcohol - he was merely taking medication per prescription. He was already on bail for a pending operating under the influence case - again involving no alcohol, just prescription medication. For almost a year we vigorously fought charges, resulting in the non-issuance of felony OWI charges for the New Year's Eve arrest.

Two Dismissals, Two Charges, Two Defendants, One Attorney, One Day

February 6, 2013, was a good day for two clients.  We negotiated the complete dismissal of an OWI charge for one client and the complete dismissal of a battery charge for another.  The OWI dismissal followed an arrest where the officer reported speeding 20 over and deviating.  The report referenced poor performance on the field sobriety tests but the video raised numerous issues.  Despite a breath test result constituting evidence of impairment we were able to negotiate for a complete dismissal.

The dismissal of the battery charge was important for our client because his employment would have been terminated if there was a conviction.  We discovered that shortly before the trial date the independent witness had been arrested for operating under the influence with a very high BAC.  We were able to establish that on the night of the alleged battery, the witness was highly intoxicated.   The dismissal enabled our client to keep his job.

Crooked Canine Search Straightened Out

Drug charges were completed dismissed and an OWI was amended to reckless driving following an extensively litigated Waukesha County arrest of our client following what we were convinced from the outset was a defective canine search of our client’s vehicle.  We were sure that the officer who handled the dog impermissibly induced the supposed hit that led to the search of the vehicle and arrest of our client. After many scheduled appearances and our thorough investigation of the matter, the charges were very successfully resolved in June 2013 with the dismissal of the drug charges and other related matters and with the amendment of the OWI to reckless driving with no loss of operating privileges and no assessment requirement.

Milwaukee County Sheriff OWI Arrest Dismissed

In June 2013, we prevailed with our argument that a Milwaukee County deputy sheriff did not have a reasonable suspicion or probable cause to stop our client’s vehicle based on what we argued was insufficient identification by a citizen witness of alleged impaired operation of a vehicle on I-94.  A Milwaukee County circuit court judge ruled in our favor, resulting in the complete dismissal of all charges.

Child Abuse Charges Dismissed

In April 2013, our client, the mother of a 4 year old, was accused of felony child abuse following findings made by a preschool teacher, the Department of Children and Family Services, and a physician at Children’s Hospital.  We immediately obtained a letter from the treating physician which thoroughly refuted the other three findings.  We presented this and other evidence leading to the dismissal of all allegations.

No Charges for Friend Picking Up OWI Arrestee

Following a November 2012 arrest in Milwaukee County for operating under the influence we were able to negotiate for the non-issuance of any charges. Our client was called at 3 a.m. by a friend who had been arrested for operating under the influence. He needed a ride home or he would be put in jail. Our client agreed to the pickup despite the fact that earlier in the evening he had a few beers and shots. When he arrived for the pickup law enforcement requested a preliminary breath test with a result of .10. Law enforcement claimed that our client failed all four field sobriety tests. He was arrested for operating under the influence. He submitted to an evidentiary breath test with a result of .07. We interceded, pointing out that there had been no observation of any impaired driving and that law enforcement needed additional evidence of intoxication beyond a blood alcohol concentration of .04 to .079. We also relied heavily on the equitable aspect of punishing this Good Samaritan.

F___ the Police

In trial in October 2012, our client was found not guilty of disorderly conduct following an incident where he taunted police officers who on two previous occasions had told our client and others on a porch to keep the noise down during a late evening barbecue. When the officers came a third time, our client said, "Hey, hey, f___ the police." He was arrested. The Court found that our client was certainly behaving in a stupid fashion but being stupid doesn't mean that our client was guilty of disorderly conduct.

Milwaukee County Criminal OWI Charge Amended to Reckless Driving

In April 2011, a criminal charge of operating under the influence of a controlled substance (clonazepam) as a repeat offender was amended to reckless driving. This reduction eliminated a mandatory jail sentence of 5 days to 6 months (the District Attorney was recommending 60 days), a mandatory revocation of driving privileges of 12 to 18 months (the District Attorney was recommending 15 months), a fine of approximately $900 to $1,700, and the mandatory alcohol assessment and driver safety plan. A videotape showed our client almost striking a parked vehicle. The arresting officer noted a slight odor of intoxicating beverage on our client's breath and wrote our client admitted to consuming 4-5 beers earlier in the evening. Our client told us he did not consume any alcohol and his breath test result at the police station was .000. A blood test confirmed our client was taking clonazepam for back pain. Although he did not have a prescription for clonazepam, he did have a prescription for diazepam and oxycodone for relief of his back pain. Furthermore, we produced medical records to confirm our client had a bilateral laminectomy, mesial facetectomy, a foraminotomy, and diskectomy three months prior to the arrest. Immediately prior to a jury trial, the prosecution agreed to amend the criminal charge because the anticipated trial testimony of the officer was not credible given the .000 alcohol result and our client was merely taking a controlled substance to help with pain as he recovered from back surgery.

OWI Amended to Reckless Because Video did not Show Poor Driving

In March 2012, a charge of operating while intoxicated (1st) was amended to reckless driving and the charge of improper refusal to submit to a chemical test was dismissed. The officer stopped our client for poor driving. However, the videotape of the driving did not confirm that our client was weaving outside his lane of travel or making wide turns. Our client was traveling north on 27th Street, west on Puetz, north on Liberty, and finally west on Forest Hill. The officer stated the poor driving started on 27th Street, but the officer stopped our client 4 minutes and 51 seconds later. The officer did not stop our client on 27th Street, Puetz, or Liberty. Noting the strength of our motion to suppress, the prosecution agreed to amend to a single citation for reckless driving and to dismiss the refusal proceeding. This result eliminated the mandatory revocation of license, the alcohol assessment, the driver safety plan, and the ignition interlock requirement.

Village of Slinger OWI (1st) Amended to Reckless Driving

Our client was stopped for a loud muffler. She was understandably nervous and did not perform well on the field sobriety tests. Her breath test at the road was .10. By the time she provided a sample of her breath at the police station, her alcohol level was .07 but she had also taken prescription mediation - Seroquel, Lamitcal, Zoloft, and Tamezapam. Each medication label indicated alcohol should not be used because it may intensify the negative effects of the medication. After her arrest, our client admitted she was under the influence of alcohol and "probably" should not have been driving. She admitted her doctor advised her not to consume alcohol and driver her motor vehicle while taking these medications. Nevertheless, we were able to convince the prosecution and the judge to amend the case to reckless driving with a total forfeiture of $303. This reduction eliminated any revocation of operating privileges, a fine of approximately $781, and the mandatory alcohol assessment and driver safety plan.

Milwaukee County OWI (5th) Dismissed

Our client was arrested in July 2010 for operating under the influence 5th offense with a mandatory minimum jail sentence of 6 months and up to 3 years of initial confinement in state prison. In May 2012 the case was dismissed.

Dismissal of OWI (3rd) - Waukesha County

In January 2008, a Waukesha County judge granted a motion to suppress all evidence following the stop of our client's vehicle. Our client left the parking lot of a strip mall at 1:30 a.m. The officer claimed the circumstances were suspicious because a number of businesses at the strip mall had been burglarized in the past. At the motion hearing the officer admitted he had no direct evidence linking our client's vehicle to past burglaries. There was no 911 call to indicate a burglary was in progress at the strip mall. The officer had noticed nothing unusual about our client's vehicle as if left the strip mall. The case was dismissed.

Lake Country OWI Ticket Dismissed

Our client was arrested and issued a ticket for OWI in April 2010 by an officer claiming the stop arose because of an improperly lighted rear registration plate. When the vehicle was removed from the tow lot a very credible witness checked the light and the police department was then notified that the light was, in fact, in proper working order and that proof was made available. The prompt intervention and our strong advocacy resulted in the prosecutor's decision to withdraw the tickets.

CCW amended to ordinance charge in Milwaukee County

In January 2010, we successfully challenged our client's arrest when he was carrying a 38-caliber pistol under his front waistband and five bullets in his pocket. We challenged the right of the Milwaukee police department to commence questioning solely because our client and four other men were observed standing in a high crime area. A conviction for carrying a concealed weapon usually results in a significant jail sentence. We were able to conclude the case with a non-criminal ordinance conviction and forfeiture under $200. Our client was extremely grateful.

See you in court (probably not)—OWI dismissal, Milwaukee County

In December 2009, a criminal OWI charge in Milwaukee County was dismissed based on the failure of an officer to appear for a motion hearing on two occasions. It was strongly suspected that the officer fabricated his report regarding an alleged observation of suspicious driving. It was this officer's supposed statement that led the arresting officer to claim that our client had previously been observed driving recklessly by the officer who failed to appear in court. The arresting officer did not observe any suspicious driving. We were confident that when confronted with the prospect of committing perjury on the witness stand under circumstances where it could be detected, the officer would fail to appear. We were right.

Dismissal of OWI (third offense)—West Allis Police Department

In October 2009, a third offense operating under the influence charge was dismissed by a judge in Milwaukee County after we filed a motion to suppress all evidence obtained as a result of the illegal stop of our client's vehicle. The written report indicated that the officer observed our client make two turns without signaling. We obtained a video from the squad cam, with the officer saying, "The reason I stopped you is that you didn't signal either of the turns back there." The video confirmed the officer's statement but we pointed out to the Court that the officer's vehicle was approximately seven seconds behind our client's vehicle which was traveling 30–35 mph and that there was no other traffic that would have been affected by our client's failure to signal. We pointed out that our client was only required to signal his turns if any other traffic would have been affected by such movement—Sec. 346.35(1)(b). The case was dismissed.

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Milwaukee county judge suppresses .24 blood test result in OWI (fifth offense)

On September 18, 2009, a judge in Milwaukee County Circuit Court granted our defense motion to suppress the results of the blood test based on the fact that the State had failed to satisfactorily prove that a qualified person drew the blood. Shortly after the arrest, a phlebotomist at a local hospital drew the blood. We brought to the Court's attention that she did not qualify as a medical technologist under the statute and that she was not operating under the direction and control of a physician as required by the statute. Courts have given different interpretations to this requirement. It is not necessary that a physician be present in the room or in the hospital. It is required that protocols are established under the direction of a physician. In our case, the hospital had protocols but there was no physician approval of the protocols.

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Felony Prescription Drug Case in Milwaukee County Dismissed

In June 2010, the case was dismissed after we were successful in persuading a Milwaukee County Circuit Court judge to suppress from evidence the Oxycodone tablets found in the center console of our client's vehicle following a traffic stop for failure to signal turn. Our client had been charged with possession of Oxycodone without a prescription. There was testimony that when our client's vehicle came to a stop the City of Milwaukee detectives noticed repeated movement of our client toward the center console. The State argued that because the stop took place in a high crime area and because our client had failed to promptly stop the motor vehicle, the additional evidence of repeated movement toward the center console implicated the detectives' genuine concern about their safety which would justify the search. The judge quoted from State v. Johnson:

Were we to conclude that the behavior observed by the officers here was sufficient to justify a protective search of Johnson's person and his car, law enforcement would be authorized to frisk any driver and search his or her car upon a valid traffic stop whenever the driver reaches to get his or her registration out of the glove compartment; leans over to get his wallet out of his back pocket to retrieve his driver's license; reaches for her purse to find her driver's license; picks up a fast food wrapper from the floor; puts down a soda; turns off the radio; or makes any of a number of other innocuous movements persons make in their vehicles every day. In each of these examples, the officer positioned behind the vehicle might see the driver's head and shoulders move, or even momentarily disappear from view. Without more to demonstrate that, under the totality of circumstances, an officer possesses specific, articulable facts supporting a reasonable suspicion that a person is dangerous and may have immediate access to a weapon, such an observation does not justify a significant intrusion upon a person's liberty.

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Milwaukee Judge Questions HGN Test - OWI Dismissed

A municipal court judge in Milwaukee County in April 2010, in the process of dismissing the OWI case brought against our client, said the officer claimed our client exhibited six clues of a possible total of six clues on the Horizontal Gaze Nystagmus test, strongly suggesting that our client was very intoxicated. "I am losing faith in the accuracy of HGN testing in light of the other evidence in this case," said the judge as he dismissed the operating under the influence case.

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Judge Finds Lack of Evidence Regarding Sufficiencyof Waukesha Memorial Hospital's Blood Draw Procedure

In April 2010, we convinced a Waukesha County judge at a motion hearing that the State had failed to meet its burden of proof with respect to showing the proper blood draw procedures were employed in obtaining blood with a BAC level of .30 in a third offense operating under the influence case. The State could not establish that the blood draw was done under the direction of a physician as required by Sec. 343.305(5)(b), Wis. Stats. The State's failures included eliciting testimony from the team leader of the phlebotomists who stated under oath that only phlebotomists should have access to the blood test kits provided by the State Laboratory of Hygiene. He specifically testified that no law enforcement officer should ever touch the kit prior to the test being performed. The written protocols, however, specifically said: "The law enforcement officer will provide the appropriate kit from the State Laboratory of Hygiene."

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Municipal court in Waukesha County amends OWI to reckless driving

In May 2008, a municipal court approved a stipulation amending an OWI case with a PAC of .12 to reckless driving. We filed a motion challenging the right of the officer to stop the defendant's vehicle. Our client was approaching in the southbound lane an officer outside his vehicle in the southbound lane. The officer effected a stop after our client slowly drove into the northbound lane to get around the police vehicle. The officer advised our client that he should have stopped in the southbound lane and waited. For what? That's what we told the prosecutor. We convinced the prosecutor that the intent of the passing prohibition was to avoid the danger of passing a moving vehicle in a dangerous zone. We convinced the prosecutor that our client's driving constituted going around the officer rather than passing. The amendment was conditioned on our client doing an assessment with a private counselor, not the designated assessment agency in Waukesha County, the Addiction Resource Council.

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Case with .13 BAC amended to reckless driving—Cudahy Police Department

"If I approve the stipulation amending the OWI to reckless driving, I don't need to decide the very close and difficult legal issues that are presented in this motion," said the municipal court judge on April 16, 2009, as he went on to make the required finding that the amendment was consistent with the public's interest in deterring operation of motor vehicles by persons under the influence of intoxicants.

An off-duty officer from another jurisdiction had observed our client in a retail store exhibiting some indication of being under the influence of alcohol. (His BAC was .13 at the police station.) The defendant was then seen driving away from the parking lot of the retail establishment. A 911 call was made and the local officer was alerted that the vehicle was going to be in the McDonald's drive-through. The report stated:

Upon my arrival I was able to locate the vehicle in the McDonald's drive thru. In observing the vehicle, I watched it go through the line and pull up to the drive thru window. In doing so, I observed the vehicle come to an abrupt stop. The vehicle then pulled to the second window where customers receive their food. After the driver received his food he pulled forward approximately 30' and stopped for well over one minute. I observed the vehicle pull away and out onto the street after having signaled. I pulled out behind the vehicle, at which time I began to monitor the driving of the vehicle. I did not observe any erratic driving at the time. The vehicle then made a right turn. It did not signal. The vehicle signaled to make a left turn. A traffic stop was conducted.

Our client had meticulously followed our instructions when we met the day after his arrest. He did the alcohol assessment seven days after the arrest and promptly enrolled and completed the alcohol counseling. Our client agreed to waive any technical deficiencies regarding the Notice of Intent to Suspend form and agreed that we should advise the DMV to immediately put into effect the six-month administrative suspension. We then delayed the case in municipal court until near the end of the six-month administrative suspension. The municipal court judge noted all of these factors and then weighed the legal and equitable considerations against the fact that the defendant had a conviction for operating under the influence 15 years earlier. After a lengthy hearing the court approved the amendment to reckless driving, a conviction that will be removed from the defendant's record after five years. A conviction for operating under the influence would have remained on the defendant's record for the remainder of his life. Considering that the defendant had a prior offense from 15 years before this incident a conviction for operating under the influence would have subjected the defendant to penalties for third offense OWI for any conviction for the remainder of his life.

Our client, who has referred many other clients over the years, said he would continue to refer all of his friends who are faced with a criminal or traffic matter or who are injured in an auto accident.

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Second offense OWI in Waukesha County amended to reckless driving

In December 2008, a man who said he could not afford to hire us for his first offense drunk driving but wanted to hire us for the current case explained that he had been in his mother's mobile home when two police officers came to the door in the early morning hours and bullied their way into the residence. The officers arrested the defendant and charged him with operating under the influence arising from an accident that occurred approximately one hour earlier involving a vehicle owned by the man's mother. A witness had advised the police that the car had struck a tree and that a man exited the vehicle and a short while later was picked up by another vehicle. When the officers arrived at the mobile home the man's mother advised the officers that her 30-year-old son was asleep. She repeatedly advised the officers that they were not authorized to enter. As the conversation progressed, the officers moved from being within the screen door to entering the threshold. After approximately five minutes of threatening to charge the woman with obstruction of justice, she consented and permitted them into the residence.

We filed motions in circuit court to suppress all evidence obtained after the illegal entry into the residence and to suppress admissions regarding driving made by the defendant while he was being treated at the hospital. The statements were directed at healthcare workers in the course of treatment but were overheard by one of the officers.

Minutes before the suppression hearing was to commence in circuit court the prosecution offered to amend the operating under the influence charge to reckless driving and to reopen and dismiss the refusal conviction that had been entered before we were retained, thus eliminating the remainder of the two-year revocation. The judge, noting that he had not presided over an amendment of operating under the influence to reckless driving in over ten years, carefully scrutinized the motion papers that had been filed and then approved the agreement. Our very grateful client noted, "You told me when we met that the police could not enter my residence to arrest me for operating under the influence, and you were right. Thank you very much."

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Operating under the influence of cocaine amended to reckless driving

In October 2008 minutes before trial in a municipal court in Milwaukee County we successfully negotiated an amendment of an operating under the influence case to reckless driving.

A citizen witness observed a vehicle owned by our client roll over after striking a parked car. When the police officers arrived, the citizen advised the officers that a man exited the vehicle's driver side door and then lay in the grass 15 feet away from the vehicle. The citizen witness further indicated that paramedics came and removed the person who crawled out of the vehicle. Officers located the defendant at the hospital. The police reports indicated that the defendant was in critical condition at the hospital and did not have any recollection of being in a collision. The informing the accused form was properly read, according to the officers and without the recollection of our client we were unable to challenge any aspect of the blood draw which ultimately tested positive for a metabolite of cocaine, meaning that cocaine had been used within the previous five days. The law provides that if there is even a trace of a metabolite of cocaine in the blood, the motorist is guilty of operating under the influence of a controlled substance -which has the same penalties as operating under the influence of alcohol. The chemical analyst and two City of Milwaukee police officers appeared for trial but the citizen witness failed to respond to the prosecution's subpoena. The prosecutor threatened to bring a motion to have statements taken from the citizen witness by the police officer admitted into evidence as a present sense impression but we objected, saying this denied the defendant the right to cross-examine and confront the accuser. There was a further issue as to whether the person who drew the blood was qualified under the statute and whether she was required to personally appear in court with testimony that could be cross-examined. Finally, there was a chain of custody issue concerning the state lab person who opened the sample not being the person who tested the sample. After considerable negotiation we were able to convince the prosecutor to amend the charge to reckless driving thus bringing the case to a very successful conclusion.

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Fresh decision from West Allis Municipal Court—drug case dismissed
Over the years, we have had a number of clients stopped by law enforcement because an air freshener or other small device was hanging from the rear view mirror. In fact, the Division of Motor Vehicles advises that over 600 of these tickets are written every year in Wisconsin. Our experience is that officers are usually looking for a pretext to stop a motorist and search the vehicle. This is exactly what happened recently for one of our clients in West Allis. He had a tree freshener suspended from his rear view mirror. His vehicle was stopped and searched. Marijuana was found. Drug charges were issued.

We filed a motion to suppress all evidence obtained as a result of the illegal stop. Sec. 346.88, Wis. Stats., makes it illegal for a motorist to operate a vehicle with an object suspended "so as to obstruct the driver's clear view through the front windshield." The Court heard testimony and a finding was made that the prosecution had failed to offer evidence as to how the air freshener either obstructed the driver's view or interfered with the safe operation of the vehicle. The Court found that the officer lacked an articulable reasonable suspicion of wrongdoing to stop the motorist and all evidence obtained as a result of the stop was suppressed. The case was dismissed.

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Boats, snowmobiles and automobiles
It's not a new movie—it's the law. We recently were reminded by one of our clients that there are three ways to run afoul of the law while operating under the influence. Our client was arrested for snowmobiling while intoxicated. Over 10 years ago, we had obtained a dismissal of an operating a motor vehicle while intoxicated charge for him. His record also showed a boating while intoxicated conviction. In the present case, in addition to being charged with snowmobiling while intoxicated, he was charged with failure to stop for a law enforcement officer, which could mean a 30-day to one-year jail sentence. We concluded the case without any jail sentence.

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Some officers will write anything, but here the blood test told the truth

We recently defended an OWI charge against a motorist who was stopped by an officer in Waukesha County. The officer wrote a report containing the following entries:

I could see immediately that his eyes were glossy and bloodshot. Due to his erratic driving and bloodshot eyes, I decided to start some field sobriety exercises. .. I asked him to recite the months of the year starting with February and ending with November. He began with February but did not stop at November as I had directed, but continued to recite the months of the year. He also continued his attempt and recited the entire months of the year a second and third time. I asked him to count backwards from 77 to 65. I asked if he understood and he stated that he did. He then started counting but began with 65 and counted to 64 and back up to 65 and then down again to 53. I asked him to raise one leg 6 inches off the ground straight in front of him and to count out loud from 1-30. He brought his leg up but placed it back on the ground to keep his balance at the end of the third count. I asked him to walk a straight line on the sidewalk in front of him. Every step he took was at a 45-degree angle off the line.

The reports went on to note that a citizen witness had used a cell phone to call in a report that the vehicle "had driven all over the road and was driving at a really slow pace." The report concluded by stating that he failed the gaze nystagmus test. He was taken for a blood test. The results of the blood test: "Ethanol not detected; no drugs were detected in the comprehensive drug screening procedures."

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Out-of-state charges? Hire local trusted counsel

An operating under the influence ticket in Michigan was recently issued to a clerk in one of the local courthouses. He was very familiar with our firm and requested that I interview numerous local lawyers in Michigan to help select the best attorney for his case. We researched the matter and hired local counsel who obtained an amendment to reckless driving.

Please feel free to consult with us regarding any out-of-state legal matters. If we can't handle the case, we can certainly refer you to an attorney who can help you.

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$6,000 per year for a license—cost of SR-22 form

That was the lowest quote for insurance for a year for one of our clients. He could not get a license without insurance (SR22 form) because three years had not elapsed since the end of his most recent revocation. We solved his problem by reopening three operating after revocation cases and convincing the judges to waive the revocations. Within days, he had a license -for the first time in many years. The cost—a $60 reinstatement fee.

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To fight restitution, fight the crime

Our client was charged with operating under the influence (fourth offense) and operating with a blood alcohol level in excess of .02 in a driving incident resulting in over $95,000 in hospital bills for the passenger. The blood test showed his alcohol level at .059 which is under the .08 limit for first, second, and third offense but over the .02 limit for fourth offense. A blood alcohol level of over .04 is evidence of intoxication but the prosecution must submit additional evidence of intoxication to support a guilty verdict on the charge of operating under the influence. A guilty verdict on the .02 count does not require any additional evidence.

The prosecution would not let our client plead guilty to the .02 count and dismiss the operating under the influence because the prosecution believed that restitution could not be recovered if the defendant was only convicted on the .02 count. The prosecution demanded a guilty plea to the operating under the influence which we refused. A trial ensued and the defendant was found not guilty on the charge of operating under the influence and the judge ruled that no restitution was owed in the criminal case.

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Moral victory in South Milwaukee

A refusal conviction has consequences that are in some respects harsher than an OWI conviction, yet some clients would prefer a refusal conviction. Prosecutors are rarely willing to cooperate but a trial can often lead to the desired result. For example, a woman fearing employment consequences of an OWI conviction recently hired us to do a trial. She had been observed in her vehicle in a private driveway with the vehicle running. The officer did not witness any driving but was told by our client that she had returned from the store -without referencing exactly when. At trial, she testified that she had driven home from the store, parked in her driveway, and gone inside for a considerable period of time, during which she consumed alcohol. She then went out and was in the car waiting for someone to come to fix her flat tire. The judge ruled that the prosecutor failed to submit clear, satisfactory, and convincing evidence that she had been operating on a public highway and failed to submit clear, satisfactory, and convincing evidence that she was intoxicated at the time of operation. Therefore, a not guilty verdict was rendered on the operating under the influence charge.

The Court did convict her of improperly refusing to take the test at the police station because the judge believed the officer had probable cause to believe an offense of operating under the influence on a public highway may have been committed. This very low threshold (as opposed to the clear, satisfactory, and convincing standard) was met, according to the judge, by the officer approaching a running vehicle in a driveway with a person in it who acknowledges having earlier driven on a public highway, who has an odor of intoxicants, and who fails field sobriety tests.

Our client was very happy with the outcome, noting that when she applies for jobs in the future, she can correctly state that she has not ever been convicted of operating under the influence.

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Trucking career saved—CDL preserved

It is illegal to operate a commercial motor vehicle with a blood alcohol concentration over .04. This is a two-beer limit for most individuals. A trucker came to us with a .07 reading and with an admission that he had consumed five or six beers within one hour. He would obviously lose his job and the $70,000 per year income that his family needed if he were convicted. Trucking companies are prohibited from hiring a driver with such a conviction. We retained the services of a board certified forensic toxicologist who testified that at the time of driving—as opposed to the test taking time 90 minutes later—the trucker's blood alcohol concentration would have been .03. We were fortunate to have such fine expert testimony and we were able to exploit the inexperience of the police officer. Our client and his family were extremely grateful when a finding of not guilty was entered and he was able to retain his CDL privileges and his employment.

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Consider whether a past conviction can be reopened

A 20-year-old client came to our office with a ticket for operating under the influence (second offense) in Milwaukee County. Based on his blood alcohol level of .20 and the fact that his first offense was in 1998, the prosecutor wanted 80 days jail imposed. We inquired about the circumstances of the 1998 conviction and learned that our client had not contested the municipal charge which had a .09 blood alcohol reading. We were successful in reopening the municipal conviction and obtaining an amendment to the "not a drop" law, which prohibits a person under age 21 from consuming any alcohol while operating a motor vehicle. This eliminated the operating under the influence conviction and the second offense charge was amended to a first offense with no jail.

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Saving our client's CDL in Washington County

A Washington County circuit court judge in West Bend recently granted our motion to suppress all evidence arising from the arrest of a motorist for operating under the influence (second offense) with a BAC of .20. A second offense conviction, even though arising from operating the motorist's personal vehicle, would have resulted in a lifetime ban on obtaining a Commercial Driver's License which would have significantly reduced our client's earning capacity. We convinced the Court that while the Washington County sheriff was entitled to follow a motorist after receiving a tip from two citizen witnesses regarding what appeared to be the intoxicated condition of our client, the deputy had failed to observe more than mere weaving within the lane during a four-mile stretch and this did not provide a reasonable, articulable suspicion of wrongdoing which would have entitled the deputy to stop our client. A careful distinction was made regarding the potential unreliability of citizen informants in this case and we were able to convince the judge that the informants had motive to fabricate and the deputy should have questioned their reliability.

Is an anonymous 911 call pc? (probable cause, not politically correct)

Does an anonymous 911 call stating that a motorist appears to be operating under the influence provide an officer with a reasonable, articulable suspicion of wrongdoing and thus entitle the officer to stop the motorist and ask questions? We have often litigated this issue, particularly with the proliferation of cell phone 911 calls.

In 2007, we filed a motion challenging the stop and prevented an operating under the influence arrest from resulting in a conviction. A call placed to the Forest County dispatch alleged that a car was traveling 90 mph and passing illegally. The caller provided the license plate number and said, "He's going to kill somebody." The caller had stated the direction in which the vehicle was traveling and an officer noted the vehicle approximately 8 minutes later. The officer, however, did not know the identity of the caller and the officer did not independently observe any poor driving. The only reason for the stop was the anonymous call. We pointed out to the judge what Justice Kennedy of the U.S. Supreme Court said about anonymous tipsters:

If the telephone call is truly anonymous, the informant has not placed his credibility at risk and can lie with impunity. The reviewing court cannot judge the credibility of the informant and the risk of fabrication becomes unacceptable.

Our client was very grateful for our efforts which resulted in a negotiated amendment to reckless driving.

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Counting Old OWI Offenses Questioned by Judge

"Anything over 10 would be gone," said a circuit court judge in southeastern Wisconsin at a January 2010 proceeding for our client for OWI (5th offense). This was the judge's personal opinion as to whether OWI offenses occurring more than 10 years prior to the current offense should be considered in determining the penalty. The judge recognized that he must count all convictions with violation dates of January 1, 1989, to the present but in determining the penalty for OWI (5th offense), the judge disregarded the customary prison disposition, permitted our client to have a work release sentence, and permitted our client to transfer to a county Huber jail that was very close to our client's employment. Our client was extremely pleased with the outcome.

We have been urging other judges to pay special attention to what the judge said about an old conviction for OWI: "I wouldn't count after 10 years because when we look at those things and say how many criminal convictions do you have, we engage in a whole fictional process."

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Hire a Milwaukee law firm with a record of results

Our successful 25-year history speaks for itself. For a free initial consultation with a Milwaukee lawyer who gets results, make an appointment at the law firm of Hayes & Rothstein.

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