DUI / OWI (Drunk Driving) Court - Madison, Dane County, Wisconsin
Criminal Cases
In Wisconsin all drunk driving charges after the
first one are criminal charges handled in Circuit Court. First offense cases
are not charged as crimes unless there is a minor in the car or there is an
injury. Those non-criminal (civil) charges may be handled in municipal court
or Circuit Court. Both criminal and civil drunk driving charges can have profound
consequences. A criminal case can be either a
misdemeanor (with a jail
sentence) or a
felony (with a potential prison sentence). This page
describes Dane County practice but much of it is the same regardless of
which county a case is charged in. Cases are charged where the events
happened, not where the defendant lives. These are often the same place, but
not always. Sometimes an incident charged as drunk driving may happen in
more than one county, in which case it may be charged in any county where
the driving under the influence occured.Civil Cases - First Offense
First Offense OWI / DUI is not treated as a crime in Wisconsin unless
there is a child in the vehicle or someone is injured. That does not mean it
is treated lightly. First offense OWI / DUI in Wisconsin often results in
more significant penalties than in other states that treat this as a crime.
However, the procedures are a little different in non-criminal cases and many different courts can
hear such cases. This page focuses on criminal cases in Dane County Circuit
Court. See What Counts as a prior offense?
Arrest
Normally a case for OWI / DUI in Wisconsin begins with an arrest. After
the arrest a person is asked to take a breath or blood test. (A urine test
can be requested but never is requested.) Refusal to take the test can
result is substantial penalties and can be counted in future cases as if it
were a conviction. Often if a person refuses, the police will take the
person to a hospital and have blood drawn without consent anyway. Once the
testing has been completed the defendant is allowed to post bond or have
someone else post bond. Checks are not accepted for bond. If a credit/debit
card is used there is a substantial non-refundable fee for the use. The
person arrested should be given a number of forms which can include one or
more citations, a form called "Informing the Accused," a breath test result,
and some sort of notice that the defendant's drivers license will be
suspended or revoked in 30 days. This last form will also say that it can be
used as a temporary drivers license if the person has a valid drivers
license. The person will be notified of the place, date and time of the
Initial Appearance. Note that this initial appearance usually comes long
after another significant deadline has passed. In many cases another
proceeding has started to take away the defendant's license and with other
consequences. See
DUI / OWI (Drunk Driving) Wisconsin Ten
Day Warning. It is very important that a person consult an
experienced attorney as soon as possible and not wait until the Initial
Appearance.
Our office meets with people who have been arrested for purposes of an
initial consultation regularly. Unless we are hired by the defendant, there
is no charge for these office consultations. (We do charge for meeting with
defendants outside of our office or outside regular office hours.)
Initial Appearance
The first appearance in court is called the "Initial Appearance" or
"Arraignment." In Dane County this is where you get the formal charge,
called a "Criminal Complaint" and bail is set. The Criminal Complaint
is a formal document signed by a police officer under oath before a
prosecutor. It tells the court which crime(s) the defendant is charged with
and gives enough facts to support those charges. It tells the defendant what
the maximum (and minimum) penalties for the offense are. The bail is
almost always a "signature bond" where you promise to pay an amount of money
if you miss court or if you violate other conditions of your bond. Usual
conditions include not driving with any alcohol in your system and not
driving without a valid drivers license. For people with more than one prior
offense, the court may make absolute sobriety at all times a condition. A
standard condition of all bonds in Wisconsin is that you not commit any
crime and that you appear for all court dates.
The court automatically enters a "not guilty" plea at this appearance. If
for some reason you were not fingerprinted when initially arrested, the
court will order that you go to the Public Safety Building and be booked. If
there have been problems in the past with compliance with bond conditions,
some cash bail may be required. If cash bail is required, the defendant is
held in custody until it is posted. Again, a requirement to post cash is
unusual when people come into court without having been arrested and held to
get them there.
At the Initial Appearance the prosecutor will usually know very little
about the case or the defendant. They are not usually in a position to make
any kind of sentencing recommendation. The Court Commissioner presiding will
know even less. The prosecutor at initial appearances will have been handed
a box of files on the way into court; he or she will not have read the
police reports and did not draft the Criminal Complaint.
At the initial appearance in Dane County the defendant (defendant's
attorney) is usually given a copy of the police reports and served with a
copy of a motion for "discovery" requesting information from the defense.
Also included is a paper authorizing police agencies to release video or
photographic evidence to the defense. An experienced attorney may demand
additional information from the prosecution. When the defendant signs the
bail bond, he/she is usually given a notice of the next court hearing - the
Settlement Conference.
The Settlement Conference
The Settlement Conference will be set for a morning four to six weeks
after the initial appearance. During settlement conferences the prosecutor
actually handling the case should be in one of the conference rooms
available. The defendant and attorneys are told which prosecutor is where.
The meetings are usually brief but include some sort of offer from the
prosecution as to what a recommended sentence will be if the defendant
pleads guilty to one or more charges. A charge of operating under the
influence is never amended to a lesser charge at one of the conferences (and
seldom at any other time). Usually other traffic offenses will be dismissed
in return for a plea to OWI/DUI. The offer may or may not be appropriate
under judicial guidelines. Judges are not required to follow prosecutor
recommendations and do not always do so.
If an agreement is reached, the prosecution and defendant will appear
before the judge and a plea entered. Usually the defendant will be sentenced
immediately and may be required to start serving the jail sentence right
away. Often even if there is an agreement, the matter will be set for
another date for the plea and sentencing.
If no agreement is reached, the matter will be set for further court
proceedings. See
Motions.
Felony OWI / DUI Cases
All fifth offense cases (or higher) are felony charges in Wisconsin. If
the defendant is charged with a fourth offense and had a prior offense less
than five years earlier, the fourth offense will be charged as a felony. If
someone is injured in a second or third offense, the case will be charged as
a felony. Felony means potential prison, loss of firearms priveleges for
life, likelihood of supervision (probation or extended supervision), and
other problems. A felony conviction will keep someone out of many jobs even
if not really related to the job.
Arrest
Normally a case for OWI / DUI in Wisconsin begins with an arrest. After
the arrest a person is asked to take a breath or blood test. (A urine test
can be requested but never is requested.) Refusal to take the test can
result is substantial penalties and can be counted in future cases as if it
were a conviction. Often if a person refuses, the police will take the
person to a hospital and have blood drawn without consent anyway. Once the
testing has been completed the defendant is not allowed to post bond or have
someone else post bond. A felony defendant must be seen by a judge or
magistrate. This may take some time. During that time, the only person from
outside the criminal justice system who can have face-to-face contact is
usually an attorney.
At a bail hearing there is usually a Criminal Complaint. The magistrate
or judge must be told what the arrest is for and shown some reason to
believe that it is a valid charge. A Criminal Complaint serves that purpose.
There are no bail hearings on weekends or legal holidays. It may take one or
more business days for the complaint to be prepared.
At the bail hearing the judge decides whether or not to release the
defendant prior to trial, and if so, under what conditions. Usually people
are released unless they have a history of violating bail conditions. If
there is a significant lack of ties to the community or other reason to
think the defendant might not show up for trial, cash bond may be required.
If it is it can be posted by cash, cashier's check, or credit/debit card.
Conditions of bond for felony cases often involve significant limitations on
the defendant's movement and activities.
The person arrested should be given a number of forms which can include
one or more citations, a form called "Informing the Accused," a breath test
result, and some sort of notice that the defendant's drivers license will be
suspended or revoked in 30 days. This last form will also say that it can be
used as a temporary drivers license if the person has a valid drivers
license. The person will be notified of the place, date and time of the next
court appearance, usually a Status Conference on a Monday afternoon. Note
that this status conference usually comes after another significant deadline
has passed. In many cases another proceeding has started to take away the
defendant's license and with other consequences. See
DUI / OWI (Drunk Driving) Wisconsin Ten
Day Warning. It is very important that a person consult an experienced
attorney as soon as possible and not wait until just before the Status
Conference. No plea is taken at this appearance on felony charges; a not
guilty plea is entered on any related misdemeanor charges.
At the bail hearing/initial appearance it is routine to waive the time
limit for a Preliminary Hearing if the defendant is released. There is a
right in felony cases to have a speedy determination of whether or not there
is any evidence for the charge(s). If the defendant is locked up, there is a
right to have such a hearing within ten (10) days. If released then the
right is to have such a hearing within twenty (20) days. Unless the time
limits are waived, the case will be set for a Preliminary Hearing within
those limits. If the time limits are waived the matter will be set for a
Status Conference. Note that this status conference usually comes after
another significant deadline has passed. In many cases another proceeding
has started to take away the defendant's license and with other
consequences. See
DUI / OWI (Drunk Driving) Wisconsin Ten
Day Warning. It is very important that a person consult an
experienced attorney as soon as possible and not wait until the Status
Conference.
Status Conference
The status conference is a jumbled meeting in the hallway outside Room 1A
at the courthouse. Prosecutors, defense lawyers, defendants and families are
milling around. The primary purpose of this conference is to find out if the
defendant wants a Preliminary Hearing. An offer may be made at this time,
but not usually. If the defendant wants a preliminary hearing a time and
date are set for that hearing. If the defendant wants to waive a Preliminary
Hearing at this time, the Court Commissioner will listen to that waiver and
make sure the defendant understands what he/she is giving up. This is done
in Room 1A and the case will be set for further proceedings. See
Arraignment.
Preliminary Hearing
A Preliminary Hearing is Wisconsin's substitute for a Grand Jury and is
only held in felony cases. The
purpose is to make sure that there is real evidence of a felony and that the
defendant committed that felony before everyone spends time and expense
preparing for a trial. It is not the trial. Instead of having to prove
things beyond a reasonable doubt, the prosecution merely has to produce
evidence that gives the magistrate reason to believe that the defendant
committed a felony. There is virtually no evidence that the defendant could
produce that would negate the prosecution's evidence at this level, so it is
rare that a defendant will present evidence at a preliminary hearing.
Nevertheless, it is a chance to question witnesses and get more information.
If the defendant wins the Preliminary Hearing and the case is dismissed,
that does not mean it is over. The prosecution can recharge the defendant
and bring in more evidence at the next preliminary hearing. Winning a
Preliminary Hearing is still
usually a very good thing.
At the time set for the Preliminary Hearing both sides may have more
information available and decide to waive the hearing rather than go ahead
with it. Some items of evidence are admissible at a Preliminary Hearing that
are not admissible at trial. The primary example of this is a result from
the blood test can be admitted without expert testimony at a Preliminary
Hearing but not at trial.
If the Court Commissioner or Judge finds "probable cause" at a
Preliminary Hearing or the defendant waives the right to have such a hearing
a formal charge, called an Information, is presented to the Court and the
defendant is asked to plead to the charge. If the defendant wishes to
preserve possible errors for appeal and refuses to plead, a "not guilty"
plea is entered. After arraignment misdemeanor cases and felony cases follow
the same procedures.
If there were things wrong with the arrest or other police or court procedures, the
defense attorney may bring a request for a court order, called a motion,
before the court. Both sides may ask the court for an order as to future
procedures or trial rules. These motions will usually be set for a separate hearing. At that hearing
there may be people testifying and other evidence introduced. Such motions
are sometimes brought even if the attorney bringing them does not expect to
get the order requested. This can be done for tactical reasons so long as
there is a real basis for the motion. In OWI / DUI cases motions are
sometimes brought attacking the validity of prior offense convictions,
attacking the validity of the stop, or questioning the sufficiency of the
evidence for the arrest. Suppression motions may be brought challenging the
admissibility of statements or of results of a questionable search.
Pretrial Hearings
One or more court dates titled a "pretrial hearing" will be scheduled.
Such hearings are for the defense attorney and prosecutor to bring the court
up-to-date on the status of the case. They usually involve discussions of
the case between the lawyers followed by a brief court appearance. Although
the time before the judge is usually brief, a pretrial hearing can take
several hours because of court scheduling. The scheduling notice for a
pretrial hearing will often also contain scheduling information for jury
selection and jury trial dates.
Jury Selection
Jury selection in Dane County is always done on a Monday morning. (If
Monday is a legal holiday, Jury Selection for that week is done on Tuesday.)
During Jury Selection both sides are allowed to ask questions of prospective
jurors to assure that they can be fair. Neither side gets to pick who they
want to be on the jury; instead each side can indicate some people from the
panel that they do not want on the jury. In other counties, jury selection
is usually done the morning of the trial. Many cases will be scheduled for
jury selection in Dane County on the same day for the convenience of
prospective jurors and the courts.
Jury Trial
Trial by jury is a constitutional right for the defendant (and a
statutory right for the government). At a jury trial the government must
prove beyond a reasonable doubt that the defendant committed the crime(s)
charged. The defendant does not have to prove anything. The defendant has
the right to testify and call witnesses but is not required to do so.
Evidence presented by either side is subject to cross examination
(questioning) by the other side. Jurors may be permitted to ask questions.
Both sides get to give a brief statement at the beginning of the trial about
what they expect the evidence to show and at the end of the case about what
they believe the evidence did show. The judge explains the law to the jurors
before they decide the case. All of the jurors must agree on any verdict in
a criminal case (guilty or not guilty). If the jury finds the defendant "not
guilty" of all charges, the case is dismissed. If the jury finds the
defendant "guilty" of one or more charges, the judge will be required to
sentence the defendant.
Please note that most OWI / DUI cases going to trial actually have two
separate charges for the same conduct. The first is for operating while
under the influence of an intoxicant (OWI) and the second is for operating
with a prohibited alcohol content (or drug content). Conviction of either of
these carries
Sentencing
If the defendant is convicted by a jury or pleads guilty, the court will
find the defendant guilty and sentence him/her for the crime(s) of
conviction. Sentences are given within a range between the minimum and
maximum penalty prescribed by the statute. Minimum sentences are rare as are
maximum sentences; both do happen. Both sides are allowed to argue for a
particular sentence, but the decision on the sentence is up to the judge and
is usually follows the district's
judicial guidelines.
Even if both sides agree on what the sentence should be, the judge decides.
In all cases of third offense OWI (or higher) the defendant will be
immediately taken to jail following sentencing. Jail terms are usually
served with work release (Huber) and may be served on electronic monitoring.
In certain third-offense OWI cases the defendant will be offered a treatment
court option which will significantly reduce jail time. See
DUI / OWI Treatment Court for more
information about this.
Other penalties include loss of license and a requirement that the
defendant install an ignition interlock device (breathalyzer) in all
vehicles registered to the defendant and that the defendant not drive any
motor vehicle without such a device for a period of time. Fines in OWI cases
can be quite high, especially after the addition of court costs and other
fees.
Whether sentencing follows a trial or is after a plea of guilty, the
judge will consider not only the crime of conviction but other factors in
the defendant's life. A major factor can be treatment for alcohol or drug
problems before sentencing.
Appeal
If a person is convicted of a crime in Wisconsin there is a right to
appeal. An appeal does not generally look at guilt or innocence, rather it
looks at the procedures followed in reaching a decision. If an appeal is
won, the result usually is that a new trial is granted. Other remedies are
possible in unusual situations.
The right to appeal, though, is lost if not exercised in a timely manner.
The trial attorney is responsible for starting an appeal with a "Notice of
Intent" but will often not be the one to handle an appeal. That notice of
appeal must be filed within 20 days of the sentencing.
Plea Bargaining
While agreements may be reached with the prosecution in OWI / DUI cases
in Dane County, those agreements almost never result in the dismissal of the
fundamental OWI charge. They may include dismissal of other charges and
sentencing recommendations. Generally the only way to get an OWI / DUI case
dismissed completely is by convincing a judge that there is some fundamental
flaw in the procedures used by the police or by winning a jury trial.
At any time prior to the entry of a jury verdict a defendant may enter a
guilty or no contest plea to one or more charges. If this is a part of a
plea bargain one or more other charges may be dismissed and there may be an
agreement on a sentencing recommendation. Judges are not part of plea
bargaining and are not bound to accept recommendations from anyone.
Warning - Use at your own risk.
This page is not intended to be legal advice or substitute for legal
advice. It is intended to provide general information. Legal advice can only be
given with a full understanding of the actual facts of a case, generally in
a face-to-face consultation. Note that there are exceptions to many of the
statements made here. No one should act or refrain from acting in court
based on anything stated in this web page. My office does not give legal
advice to non-clients over the phone or internet. Further, the
law and procedures in drunk driving cases are changing rapidly. This page
reflects procedures in place in Dane County, Wisconsin, on July 31, 2011.
See also:
DUI / OWI
/ DWI Wisconsin
- How this office approaches DUI / OWI / DWI Drunk Driving cases. The need for an assessment and
/ or treatment along with competent legal assistance is discussed.
DUI / OWI / DWI Drunk Driving Treatment Court - an option that must be considered in Dane
County for some third-offense cases
DUI / OWI / DWI / Drunk Driving Stop in Wisconsin -
procedure
DUI / OWI
/ DWI Drunk Driving Field Sobriety Tests in
Wisconsin - A look at what "field sobriety tests" are - and are not - in
Wisconsin.
DUI / OWI / DWI / Drunk Driving while Parked in Wisconsin
DUI / OWI (Drunk Driving) Wisconsin Ten
Day Warning - Why a defendant needs to take action before the court
process even gets going.
DUI / OWI / Drunk Driving Math in Wisconsin - What Counts as a prior
offense?
List of Ignition Interlock Device Providers in Wisconsin
DUI / OWI / Drunk Driving with Prescription Drugs in
Wisconsin
Wisconsin Judicial Sentencing Guidelines for OWI / DUI / Drunk Driving
cases by County. Each judicial district has different guidelines.
|
Charles
Kyle Kenyon - When Experience Matters
Zoom Court Appearance Information
Attorney at Law
5555 Odana Road, Suite
211
Madison, WI 53719-1280
Telephone (608) 308-9645
Since 1979
Former (Elected) District Attorney
Former Assistant State Public Defender
Extensive jury trial experience in cases
ranging from traffic to sexual assault / homicide
Thousands of
criminal cases since 1979
Appeals in Wisconsin Court of Appeals and
Supreme Court
J.D.
University of Wisconsin Law School
1978 - winner of Abe Sigman prizeCovid19PlanForReopening2022-03.pdf
B.A.
University of Wisconsin - Madison -
Psychology - 1975
Trainer / presenter / panelist for
American
Bar Association,
National College of District Attorneys,
Wisconsin
Department of Justice,
Wisconsin Public Defender
Certified to administer roadside
Field Sobriety Tests in Wisconsin
Graduate Vehicular Homicide / DWI Program, Northwestern
University Center for Public Safety
Past-President: Marinette County Bar
Association, Door-Kewaunee Bar Association
Life Member:
National Association
of Criminal Defense Lawyers (NACDL)
Member:
Wisconsin Association of Criminal Defense Lawyers (WACDL)
Member: National College for DUI Defense
Member:
DUI Defense Lawyers Association
Member: State Bar of Wisconsin, Dane County Bar
Association
Admitted to practice: State of Wisconsin, Federal - Eastern
District of Wisconsin, Western District of Wisconsin, 7th Circuit Court of
Appeals
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Charles
Kyle Kenyon, Madison, Wisconsin, all rights reserved.