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Hayes & Rothstein

Felony OWI - Fourth, Fifth, or Sixth Offense

No Injury, No Death
No Passenger Under Age 16

In Wisconsin, the penalties are the same for:

  • Fourth offense OWI if the conviction for the third offense has a violation date within 5 years of the violation date for the new offense
  • Fifth offense OWI
  • Sixth offense OWI

I. How the Attorneys at Hayes & Rothstein Approach Your Case

While we offer sound advice at all stages of representation, you make the ultimate decision regarding how you want your case to proceed. You may want to challenge every aspect of the case. This may include filing motions, having a trial, and if necessary filing an appeal. You may, on the other hand, be interested only in minimizing the criminal penalties and the restrictions on your driver license. You may be like most of our clients - you want to defer a decision on how to proceed until there is a review of some or all of the following:

  • Reports of the arresting law enforcement agency
  • Audio of the dispatch which may include a 911 call
  • Video of the operation of your vehicle
  • Video of the field sobriety tests
  • Video of the transport within the squad car
  • Video of what occurred at the police station
  • Certifications regarding the testing devices and the operator
  • Other pertinent documents or information that vary on a case-by-case basis

The attorney you hire will appear with you at every court appearance. There are many law firms where a new associate is sent for an appearance, but not at Hayes & Rothstein, S.C.. There will be two or more court appearances prior to the dates for a motion hearing, a trial, or other final court date. The duration of the case varies based on the county, the complexity of the case, and how you want the case resolved. Prior to discussion of all of your options there should be a discussion of one or two forms that you may have been given by the officer or that you may have received in the mail: the Notice of Intent to Suspend form and the Notice of Intent to Revoke Operating Privilege form. Let’s consider how these forms will affect your operating privilege and the issuance of an occupational license.

II. Notices Issued by the Arresting Agency

A. Notice of Intent to Suspend Form

Six Month Administrative Suspension

If there is a reported value of .02 or above on the Subject Test for your breath sample on the Intox EC/IR-II the arresting officer probably filled out a Notice of Intent to Suspend form. This document provides that your operating privilege will be suspended on the 30th day after the date in the Notice box in the upper right hand corner of the document unless you file a written request within 10 days or within 13 days if the notice was mailed to you. If you provided a sample of your blood the arresting officer may not complete the Notice of Intent to Suspend form until after receiving a Laboratory Report showing there was a blood alcohol concentration of .02 or above or showing that there was a detectable amount of a restricted controlled substance in your blood. When this occurs, the officer usually mails the form. Wisconsin Statutes Sections 343.305(7); 343.305(8).

If you receive the Notice of Intent to Suspend form your first decision is whether to request a hearing. There may be some practical considerations that support a decision to let the 6 month administrative suspension go into effect on the 30th day. On the other hand there may be legal advantages to requesting the administrative suspension hearing, which include your right to see the incident report prior to the hearing and your right to subpoena and have your lawyer cross examine the law enforcement officers in your case. If you win the administrative suspension hearing your operating privilege remains valid, subject only to revocation if you are convicted in court of operating under the influence, operating with a prohibited blood alcohol concentration, operating with a restricted controlled substance, or improperly refusing to submit to a chemical test. If you lose the administrative suspension proceeding the six month administrative suspension goes into effect but you have the right to immediately petition for judicial review. If the court orders that the administrative suspension be vacated or if the court does not make a decision within 60 days of the petition for judicial review, your operating privilege is immediately reinstated. Regardless of the outcome of the administrative suspension proceeding, you must still defend in court the tickets issued for operating under the influence and/or operating with a prohibited alcohol concentration.

During the administrative suspension period most drivers are able to immediately obtain an
occupational license, which provides the privilege to legally operate a motor vehicle up to 60 hours per week for employment, church, school and homemaker duties. To obtain an occupational license go to a motor vehicle service center with $50 and an SR-22 form (proof of liability insurance from your auto insurance carrier or another insurance carrier). We can provide you with a completed application or you can fill out a form at a motor vehicle service center. You may return to the DMV as often as necessary to change the hours, although there is an additional $50 fee for most new applications. An Ignition Interlock Device is not required as a condition of the occupational license unless there is a court conviction.

If you are convicted in court of felony operating under the influence, operating with a BAC of .02 or above, or operating with a restricted controlled substance, your operating privilege will be revoked for 2-3 years with credit dating back to the beginning of the administrative suspension period and extended by the length of any jail sentence imposed by the Court. If this conviction is the fourth conviction for a major violation committed within a 5 year period, there will be a Department of Transportation finding that you are a Habitual Traffic Offender resulting in a 5 year revocation of operating privileges. See Sec. 351.02(1)(a) for a list of major convictions which included operating under the influence and refusing to submit to a chemical test.

B. Notice of Intent to Revoke Form

Implied Consent - Three Year Revocation

If the arresting officer believes you improperly refused to submit to a chemical test, you probably received a Notice of Intent to Revoke Operating Privilege form. You have 10 days from the date of the notice to file a request for a hearing with the court named on the form. Failure to request a hearing within 10 days results in a court order revoking your operating privilege for three years, commencing 30 days from the date of the notice. The waiting period for eligibility for an occupational license is 120 days or if you have two or more convictions for offenses within five years, there is a one year waiting period. At the end of the revocation period you must pay to the DMV a $200 fee to reinstate your regular license. Secs. 343.305(9); 343.305(10).

III. Your Options in Court

A. Motion Challenging Constitutionality of the Stop

You may want us to file a motion challenging the constitutionality of the officer’s decision to stop your vehicle. The prosecutor must prove to the court that the officer had either probable cause or a reasonable articulable suspicion which would entitle the officer to stop your vehicle and briefly question you. State vs. Popke, 2009 WI 37, 310 Wis.2d 118, 765 N.W.2d 569; State vs. Post, 2007 WI 60, 301 Wis.2d 1, 733 N.W.2d 634. To support reasonable suspicion, an officer must have an objectively reasonable suspicion of wrongful conduct. See State v. Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763 (1990). Reasonable suspicion sufficient to make an investigatory stop is based on a common sense test: what would a reasonable police officer reasonably suspect in light of his or her training and experience under all of the facts and circumstances. State v. Jackson, 147 Wis. 2d 824, 834, 434 N.W.2d 386 (1980).

B. Motion Challenging Request for Field Sobriety Tests and Preliminary Breath Test

If the stop was legal the officer was entitled to a brief, investigatory detention. An odor of intoxicants from the driver or other evidence of alcohol consumption following a valid stop justifies the request for field sobriety tests as a part of the investigation. The question of when an officer may request a motorist to submit to a preliminary breath test has been addressed by the Wisconsin Supreme Court which ruled that there must be a quantum of proof that is greater than the reasonable suspicion necessary to justify an investigative stop but less than the level of proof required to establish probable cause for arrest. County of Jefferson vs. Renz, 231 Wis.2d 293, 316, 602 N.W.2d 541 (1999). The officer's suspicion must be "grounded in specific articulable facts and reasonable inferences from those facts" that the driver consumed enough alcohol to impair his or her ability to drive. State vs. Colstad, 2003 WI App 25, ¶¶8, 19, 260 Wis. 2d 406, 659 N.W.2d 394. If the officer knows that the motorist is subject to a .02 prohibited alcohol concentration standard the smell of alcohol alone makes it highly plausible that the motorist is likely in violation of the statute. State vs. Goss, 2011 WI 104, 338 Wis.2d 72, 806 N.W.2d 918.

C. Motion Challenging the Length of Detention

A temporary stop becomes a de facto arrest because of an extended duration. You have the right to challenge this de facto arrest as illegal. The detention must not last longer than is necessary to effect the purpose of the stop. The investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time. The Court must consider whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly. In determining these motions the Court must consider the totality of the circumstances. State v. Wilkens, 159 Wis. 2d 618, 625-26, 465 N.W.2d 206 (Ct. App. 1990); State vs. Colstad, 260 Wis. 2d 406, 659 N.W.2d 394, 2003 WI 25 (Ct. App. 2003).

D. Motion Challenging Probable Cause to Arrest

The officer made a decision in your case to place you under arrest. This probably occurred at the roadside. The officer needed probable cause to believe that you were:

  • Operating under the influence of an intoxicant and/or a controlled substance
  • Operating with a detectable amount of a restricted controlled substance
  • Operating with a BAC of more than 0.2 if the officer knows your conviction for your third offense had a violation date within 5 years of the date of the current stop
  • Operating with a BAC of more than 0.0 while under the legal age to consume alcohol
  • Committing another offense including operating with a BAC in excess of a CDL limit

In reviewing whether the officer had probable cause to arrest the court will look to the totality of the circumstances to determine whether the arresting officer’s knowledge at the time of the arrest would lead a reasonable police officer to believe that there was probable cause to arrest. Probable cause does not require proof beyond a reasonable doubt or even that guilt is more likely than not. It is sufficient that a reasonable officer would conclude, based on the information in the officer’s position that you probably committed the offense. The officer may consider the result of a preliminary breath test or a refusal to submit to a preliminary breath test. County of Dane vs. Sharpee, 154 Wis.2d 515, 518, 453 N.W.2d 508 (Ct. App. 1990); State vs. Babbitt, 188 Wis. 2d 349, 525 N.W.2d 102 (Ct. App. 1994); State vs. Seibel, 163 Wis.2d 164, 471 N.W.2d 226 (1991); State vs. Swanson, 164 Wis.2d at 437, 475 N.W. 148 (1991); Secs. 345.22, 345.23, and 345.24.

You may want to file a motion challenging probable cause. These motions can be quite complicated, particularly if you want to challenge the admissibility or reliability of the conclusions drawn by the officer regarding your performance of the field sobriety tests.

E. Implied Consent Proceeding

Refusal to Submit to a Chemical Test

If you have been charged with unlawfully refusing to submit to a chemical test, you have the right to a hearing. Questions would include whether there was a reasonable, articulable suspicion for the officer to stop your vehicle, whether there was probable cause for your arrest, whether you were properly advised of your options and whether you refused to submit to the requested test. A fourth offense conviction results in a three year revocation of your operating privilege. The waiting period for eligibility for an occupational license is 120 days or if you have two or more convictions for offenses within five years, there is a one year waiting period. There is no court ordered forfeiture. There is no incarceration. A conviction does mandate the alcohol assessment requirement and a conviction does constitute a prior conviction under Sec. 343.307(1)(d) for the purpose of determining the penalty for any subsequent conviction for operating under the influence or related offenses. The fact that you unlawfully refused to submit to a chemical test can be used against you at a trial for operating under the influence. State vs. Albright, 98 Wis.2d 663, 298 N.W.2d 196 (Ct. App. 1980) and State vs. Bolstad, 124 Wis.2d 576, 585-86, 370 N.W.2d 576 (1985).

A good discussion of many of these issues is found in State vs. Anagnos, 2012 WI 64; State vs. Gosdeck, 776 N.W.2d 101, 2009 WI App. 158; State vs. Baratka, 258 Wis.2d 342, 654 N.W.2d 875 (Ct. App. 2002); State vs. Wille, 185 Wis.2d 673, 518 N.W.2d 325 (Ct. App. 1994); and State vs. Brooks, 113 Wis. 2d, 347, 335 N.W. 2d 354 (1983).

Please note that there is a significant difference between challenging probable cause in a refusal proceeding where the prosecutor need only persuade the court that the officer’s account is plausible and challenging probable cause at a suppression hearing for an OWI charge where the prosecution is required to present evidence sufficient to establish that probable cause existed to a reasonable certainty. State vs. Nordness, 128 Wis.2d 15, 381 N.W.2d 300 (1986); State vs. Paszek, 50 Wis.2d 619, 184 N.W. 2d 836.

If the judge finds in a refusal proceeding that there was probable cause, you are not prevented from re-litigating the issue of probable cause at a subsequent suppression hearing in the OWI case.

F. Motion Challenging Admissibility and Reliability of Chemical Tests

Law enforcement under current Wisconsin law has the right to override your federal and state constitutional rights to privacy by taking a breath test, blood test and/or urine test, absent a number of exceptions. State v. Bohling, 173 Wis.2d 529, 494 N.W.2d 399 (1993) (The United State Supreme Court will decide a case in 2013 that may impose in some cases a search warrant requirement.) (See McNeely vs. Missouri, 358 S.W.3d 65, Certiorari granted September 25, 2012, 2012 WL 1899415.)

The State of Wisconsin views operating a motor vehicle as a privilege, not a right, and pursuant to state law when you were issued a driver license you gave implied consent that you would submit to a chemical test when lawfully requested by a law enforcement officer if the statutory procedure was followed. The officer was required to inform you of the rights specified in Sec. 343.305(4), which include your right to either an additional test provided by the arresting law enforcement agency without expense to you or a reasonable opportunity to have someone of your choosing perform a chemical test at your own expense. There may be an issue of whether you were properly advised regarding your rights. There is a 30 year history of challenges to the often revised Informing the Accused form and challenges to the admissibility of chemical tests. Note that even if the statutory procedure was not followed, the test results might still be admissible. State v. Zielke, 137 Wis.2d 39, 403 N.W.2d 427 (1987); State vs. Wintlend, 2002 WI APP 314, 258 Wis.2d 875, 655 N.W. 2d 745; County of Ozaukee vs. Quelle, 198 Wis.2d 269, 542 N.W.2d 196 (Ct. App. 1995); State vs. Piddington, 2000 WI App. 44, 607 N.W. 2d 303, 233 Wis.2d 257.

The statutes provide that blood must be drawn by a physician, nurse, physician’s assistant, or medical technologist or that the blood be drawn by a person acting under the direction of a physician. A phlebotomist is only qualified to draw blood if acting under the direction of a physician, which is a term of art that does not necessarily require a physician to be physically present. Sec. 343.305(5)(b); State vs. Penzkofer, 184 Wis.2d 262, 516 N.W.2d 774 (Ct. App. 1994).

There are many possible motions challenging the admissibility of a chemical test including a motion challenging the qualifications of an expert offered by the prosecution and challenging the admissibility of any proposed expert testimony. Secs. 907.02 and 907.03. This summary is not meant to fully review all options available for the defense of your case. This can only occur after you provide us with a detailed explanation of the facts of your case. We can then explain your options for challenging the admissibility and reliability of a chemical test.

G. Motion Collaterally Attacking Prior Conviction

You may be able to collaterally attack any prior criminal conviction if there was a denial of your constitutional right to a lawyer. Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994); State v. Ernst, 2005 WI 107, 283 Wis.2d 300, 699 N.W.2d 92; State v. Peters, 2001 WI 74; 628 N.W.2d 797 (2001); State v. Hahn, 238 Wis.2d 889, 618 N.W.2d 528 (2000); State v. Klessig, 211 Wis.2d 194, 564 N.W.2d 716 (1997).

If we file this motion and the Court grants relief your case which is currently charged as a felony operating under the influence would be amended to show the correct charge.

H. Trial

You have the right to a court trial (the judge makes the decision) or a jury trial. After we review with you a complete copy of all reports and other documentation, we give careful consideration to the facts that you, your witnesses and our investigation can offer. While we give our advice on whether you have a reasonable chance of success at trial, you make the final decision. At trial for felony OWI the prosecutor must prove by evidence beyond a reasonable doubt one of the following:

1. That at the time of operation you were under the influence of alcohol and/or a controlled substance, which means that your ability to operate a vehicle was impaired. The prosecutor must establish that you had consumed a sufficient amount of alcohol or that you ingested a sufficient amount of a controlled substance to cause you to be less able to exercise the clear judgment and steady hand necessary to handle and control a motor vehicle. Sec. 346.63(1)(a).

or

2. That at the time of operation of the motor vehicle you had a blood alcohol concentration of .02 or more. Sec. 346.63(1)(b).

or

3. That at the time of operation you had in your blood a detectable amount of a restricted controlled substance, defined as methamphetamine without a prescription, Delta-9 THC, cocaine or any of its metabolites, a controlled substance included in schedule I under Ch. 961 other than THC, or a controlled substance analog as defined in Sec. 961.01(4m) of a controlled substance described in Subd. 1. Secs. 346.63(1)(am); 967.055.

I. Curve Defense

Despite the fact that there may have been a test showing a blood alcohol concentration of .02 or above at the time of the test, you may be able to win the case if there is evidence that at the time of operation your blood alcohol concentration was under .02. This depends on the type of alcohol consumed, the time when the alcohol was consumed, the quantity and time of your food consumption, your blood absorption ratio, and other factors. You may want to hire an expert to examine all these factors and testify in court. Keep in mind, however, that even if the judge or jury believes that at the time of operation your blood alcohol concentration was under .02 there is still the issue of whether the prosecutor has met the burden of proving that your ability to operate a motor vehicle was impaired by the consumption of alcohol and/or a controlled substance. There are many cases where the blood alcohol concentration was under .02 but the State attempts to establish impairment by arguing that controlled substances impaired your ability to operate a motor vehicle.

If the result of the preliminary breath test (PBT) supports the theory of your defense that your BAC was under .02 at the time of operation, the PBT results would be admissible in evidence under the fact similar to those in Fischer vs. Ozaukee County Circuit Court, 741 F.Supp. 2d 944 (E.D. WI 2012). This is an exception to the rule that the result of a PBT is inadmissible at trial. Sec. 343.303.

IV. Penalties for a Conviction for Felony OWI -
Fourth, Fifth, or Sixth Offense

If a judge or jury finds you guilty of operating under the influence, operating with a blood alcohol concentration of .02 or above, or operating with a detectable amount of a restricted controlled substance in your blood, or if you plead guilty, you will be convicted of felony OWI. Upon conviction the court must impose the following penalties:

  • 6 months jail - 6 years prison with Initial Confinement in state prison up to 3 years followed by Extended Supervision up to 3 years, Sec. 346.65(2)(am)5.
  • 2-3 year revocation of your operating privilege with credit for any administrative suspension already served but extended by the length of any jail sentence imposed by the Court. At the end of the revocation period there is a $200 reinstatement fee. Sec. 343.30(1q)(b)4; Sec. 343.30(1q)(h). Eligibility for an occupational license is 45 days after sentencing but no eligibility if a revocation or suspension within one year period preceding present revocation or administrative suspension. Secs. 343.30(1q)(b); 343.10(2)(a)(1).
  • Fine of $600-$40,000 plus all applicable costs, including a mandatory $365 Driver Improvement Surcharge and a 26% penalty assessment. Sec. 346.65(2)(am)3; Sec. 346.65(2)(g); Sec. 346.655(1); Sec. 757.05(1).
  • Participation in an alcohol/drug assessment at the one designated facility in your county of residence, payment of the assessment fee, which usually ranges from $175-$300 and completion of the recommended counseling or class. Sec. 343.30(1q)(c)1.
  • Six points assessed against your driving record (will not result in any further loss of operating privileges).
  • Ignition Interlock Device for a period of one to three years with the period beginning when you obtain a regular or occupational license following conviction. There is a $50 Ignition Interlock Device surcharge. Sec. 343.301(2m); Sec. 343.301(5).

The Court may place you on probation for up to 3 years with at least 6 months jail as a condition of probation. Sec. 973.09(1)(d). The Department of Transportation currently uses what it calls the Enhanced Supervision Model which is far more rigorous than probation for most misdemeanor offenses.

V. Ignition Interlock Device

Upon conviction for felony operating under the influence, operating with a prohibited alcohol concentration, or operating with a restricted controlled substance, the Court must at sentencing under Section 343.301 of the Wisconsin Statutes:

  1. Order that your privilege for the operation of "Class D" vehicles be restricted to operating vehicles that are equipped with an ignition interlock device.
  2. Order that you install an Ignition Interlock Device in all vehicles for which your name appears on the vehicle’s certificate of title or registration and all vehicles listing you as the lessee.
  3. Order that you pay an Ignition Interlock Device surcharge of $50 to the clerk of courts. The law requires that you present to the DMV the receipt for the $50 payment at the time you obtain your regular or occupational license following conviction.

The Court must order these conditions for a period of one to three years. The period begins after your conviction date when you obtain a regular or occupational license. To obtain either license you must present proof at a motor vehicle service center that an Ignition Interlock Device has been installed in all vehicles for which your name appears on the vehicle’s certificate of title or registration and all vehicles listing you as the lessee. The DMV website has a Frequently Asked Questions section which attempts to clarify how the DMV is implementing this law. The website points out that for all offenses that occur on or after July 1, 2010 you cannot “wait out” the Ignition Interlock Device.

During the period ordered by the Court you are not permitted to operate any vehicle, regardless of whether you own the vehicle or not, unless the vehicle is equipped with an Ignition Interlock Device. Failure to comply with the court order requiring installation of the Ignition Interlock Device and operation of vehicles with the Ignition Interlock Device will make you subject to prosecution under Sec. 347.413(1), which provides for incarceration in the county jail of up to six months and a fine of up to $600 for a first offense conviction. Also, a conviction will extend by six months the required period for keeping your vehicle(s) equipped with an Ignition Interlock Device.

There are currently four Ignition Interlock providers with equipment certified by the State of Wisconsin:

  1. Intoxalock Model 1001A, manufactured by Consumer Safety Technology, Inc.
  2. Interlock XT, manufactured by Draeger Safety, Inc.
  3. LifeSafer SC100, manufactured by LifeSafer Interlock
  4. SSI 20/20, manufactured by Start Smart, Inc.

A complete list of installation and service centers appears at https://www.dot.wisconsin.gov/statepatrol/services/chemtest.htm#installation.

Another option is to request the court to make a finding that the Ignition Interlock Device order should only apply to one vehicle and that any other vehicles titled to you should not be subject to the Ignition Interlock Device requirement. If granted, during the revocation period you would only be able to operate a vehicle equipped with an Ignition Interlock Device.

Another option is to bring a motion to limit your liability to one half of the cost of equipping and maintaining each motor vehicle with an Ignition Interlock Device based on the fact that your household income is at or below 150 percent of the non-farm federal poverty line for the continental US as defined by the Department of Labor under 42 USC 9902(2).

VI. Other Considerations Concerning a Conviction for Fourth Offense OWI

  • Increase in auto insurance premiums
  • Conviction remains of record with the DMV for 55 years
  • A conviction and details regarding the case appear on Wisconsin Circuit Court Access for 20 years
  • Employment may be affected if your employer has a legitimate policy against employment for anyone convicted of a felony Employment is often jeopardized if your employer has fleet auto insurance coverage with you as a listed insured
  • CDL lifetime disqualification
  • Denial of entry into Canada for a period of time, absent application to the Canadian visa office
  • Potential difficulty in obtaining or renewing a liquor license or bartender license if a municipal ordinance permits a conviction to be considered
  • Effect on credit score
  • Increased likelihood of future traffic stops based on law enforcement doing a DOT check on the license plate which shows ownership of the vehicle by a person convicted four times of operating under the influence
  • Lifetime prohibition against possession of a firearm
  • Statutory disqualification from certain employment
  • Statutory disqualification from certain professional licensing

VII. Attorney Fees

We are forthright and honest in dealing with our clients at all stages of representation. We avoid the grandiose promises made by some attorneys - particularly those who advise anyone who is arrested and who can pay a substantial fee to fight every aspect of the case. We also avoid the practice of many attorneys who, at the initial meeting, make a quick judgment about how indefensible the case appears to be. Our approach is to get all the facts before offering an opinion and then let you decide how you want to proceed. We offer flat or hourly fees. There is no charge for the initial office consultation. You can contact us at 414.291.9911 or at [email protected].

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