| It can be done but the easiest way is if you drink, don't drive. For most people, driving after drinking is legal, but it is asking for trouble if not an accident. While I have had clients who had not had anything to drink prior to being arrested for OWI / DUI / DWI in Wisconsin, they are rare. |
If you received a ticket for drunk driving recently in Wisconsin, before you read this page - check whether your ten days to keep your license has already expired!
INTRODUCTION TO OWI / DUI / DWI DEFENSE IN WISCONSIN
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I've been practicing criminal law since 1979. That's a while. Virtually all of that time has been devoted to criminal law -- criminal defense. Although first-offense OWI is usually not a criminal offense in Wisconsin, it is treated like one in many ways. Subsequent offenses are crimes. I've won a lot of cases, including drunk driving cases. This page gives some information about how this is done. Most drunk driving cases in Wisconsin, though, are not won outright. A lawyer can usually get a better result for a person charged even if not an outright win. This web page is not meant to provide you with legal advice. No written page, or even book, can substitute for real experience trying cases. I and other lawyers learn from books, from other lawyers, and from our own mistakes. In the last year I've attended multiple programs on changes in the law and prosecution strategies. If you are going to get a good result in your case, you are going to need a lawyer, an experienced lawyer. This page has no technical information on drunk driving law or chemical test technology. Such a page would likely be out of date before I even wrote it. Drunk driving law and procedure is different in every state, and even every court. Law changes rapidly, drunk driving law even more so. The technology involved also rapidly changes. I am writing this to help you in choosing a lawyer and perhaps understanding some of what your lawyer is doing and why your lawyer wants to know all sorts of things that may not seem like they have much to do with your case. There are general principles on who drunk driving cases are analyzed and fought; I hope this will serve as a good introduction to those principles. Feel free to contact me for more information, or a case evaluation. And, please don't drink and drive |
GET HELP! YOU HAVE AN ALCOHOL/SUBSTANCE PROBLEM
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If you have been charged with drunk driving you made a mistake, probably a mistake dealing with alcohol. That is a terrible error in judgment. Whether or not you believe that you need it, GET HELP!! This is virtually the first advice I give a new client, even an innocent client. Society is becoming increasingly judgmental and intolerant of such behavior. You did something that convinced a police officer to charge you. That something may have been the actual offense, or it may have been being tired resulting in poor driving, a deer attack or other cause of an accident. By definition, if you have received more than one drunk driving ticket in your life, you have a problem with alcohol. Alcohol is causing you problems! Stop and consider the consequences of a drunk driving arrest, which is inconvenient and expensive even if you win the case. Consider the price of a taxicab. (I know, some places don't have taxicabs, most do. If you are someplace that does not have them when you are drinking, make some other plans before you start drinking.) This doesn't mean you are an alcoholic, it means alcohol is a problem in your life, though. Even if you are not an alcoholic, you should get help with your understanding of the problem of alcoholism. Go to AA. meetings. Anyone can learn from the advice and insights available at a twelve-step group. Get an alcohol assessment. Follow through on their recommendations. Again, chances are that you will be ordered to get such an assessment. Your having the assessment done before being ordered to do so will make a judge more comfortable with being lenient to you. In close cases it may help me convince a judge to accept an amended charge or shorter jail sentence. So even if you don't think you need such help get it. Look at this as an opportunity to learn. |
DO I NEED A LAWYER? HOW DO I PICK A LAWYER?
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Abraham Lincoln is often quoted as saying "A person who represents himself in court has a fool for a client!" Even (especially) if you are guilty, you need a good lawyer. If you are innocent, unfair as it may seem, you still need a lawyer. 1, Even if you believe that you are guilty, you may not be. The law is very technical, and what you did may not have broken the law. 2. The government has the burden of proving you guilty. You are presumed innocent. A good lawyer can evaluate the proof against you and argue that in ways you probably cannot on your own. 3. There are "technicalities." Technicalities like the Constitution, like the law. If the government (police) didn't follow the law in their interactions with you, evidence they gathered may not be able to be used against you. There may be no (legal) case. 4. Even if you are guilty, and they can prove it, a good lawyer can help in limiting the damage a conviction for OWI / DUI / DWI will have on you, your job, your family, and your future. Even under the strict new drunk driving laws in Wisconsin, there are wide ranges of potential penalties. Police, prosecutors, and judges often respond to these cases with a cookie-cutter one-size-fits-all approach. A good lawyer can help minimize the penalties such as jail and revocation by showing how your case doesn't fit in their mold. There are different kinds of lawyers practicing; you need to think about who you want to choose.You are far better off with a public defender (if you qualify for such representation) than a discount lawyer or a general practitioner. Although public defenders are often overworked, they are skilled and dedicated specialists. They are good lawyers and are well trained. In Wisconsin staff public defenders do receive training on handling OWI / DUI / DWI cases. General practitioners may not be familiar with the complexities of OWI / DUI / DWI cases. Criminal defense attorneys are trained in criminal law procedure and may or may not know the special issues that regularly arise in OWI / DUI / DWI defense. There are several lawyers in Wisconsin who have been certified to administer field sobriety tests, who have had the same training the police have had. I am one of those lawyers. You should be able to schedule a free initial consultation, where the lawyer should spend between a half hour and an hour with you discussing your case. This is your chance to interview one or more lawyers and get a feel for whether you will be comfortable putting your future in their hands. I do not charge for such consultations unless you decide to hire me after the consultation. An initial consultation should include a recitation by you and brief analysis by the lawyer pertinent issues: |
KEY QUESTIONS IN EVALUATING AND WINNING A DRUNK DRIVING CASE IN WISCONSIN
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Many people, including lawyers who should know better, think if you are arrested for drunk driving and "fail" a test you don't have a chance to win. As I said earlier, they are hard to win. I've won many and lost many. The key is analyzing the facts, not just the police reports, but what really happened. I look at each case as if it is going to be decided by a jury only upon legally obtained and reliable evidence. The tests are a part, but only a part, of what a judge and jury should be looking at. Police fill out reports when they make arrests. These reports are never complete and are often inaccurate. This is not because the police are necessarily trying to mislead anything. They focus on what is important to them, though. They are only human. They are not tape recorders, video cameras or computers. In a few cases, the report is virtually the same no matter what happened. |
1. Was there a valid stop that resulted in a DUI / OWI / DWI arrest?
| Police are required to generally leave people alone unless they have a reason to detain them. Generally, they have to have "reasonable suspicion" that an offense is happening or has happened involving a person. This can be as little as a broken tail light or "weaving" in traffic. It is not just that it is bar time. While this is not as much as "probable cause" and far less than "beyond a reasonable doubt," it is more than a hunch. |
2. Reason for sobriety tests?
| If there was a reason for the stop, did that mean there was a reason to suspect drunk driving? Maybe, maybe not? If not, the officer should have perhaps issued a ticket and let you go on your way. |
3. Did the police use the right tests? Did they do them correctly? Did they have "probable cause" for a DUI / OWI / DWI arrest?
| If not, it may mean that they did not have a right to give you a chemical test (breath or blood). Just as some lawyers are not trained on handling drunk driving cases, some officers are not well trained on handling drunk driving investigations. Sometimes even with training the officers don't perform the tests correctly. If they do not, they may not have had a right to require you to take a breath or blood test. If they didn't have that right, they can't use the test result against you. A good dui lawyer will know the procedures the police are supposed to follow better than the police. |
4. How was your driving? Maybe the test is just plain wrong.
| Even if the alcohol tests are admissible, if your driving was good, why should the community (a jury) care? If you were doing a good job driving maybe that test machine was having a bad day and is wrong. Even if the police had a legal reason to stop you, was it bad driving or were you going five miles over the speed limit on the highway? Was it a tail light out or St. Christopher medal hanging from your rear view mirror? These may be legal pretexts for a stop but they don't add up to drunk driving. |
5. Your day didn't start with the DUI / OWI / DWI arrest. What the police or other witnesses on the scene saw is just a snapshot. The jury should be looking at a movie, or at least an album, to get the complete picture.
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Often your defense will be about the whole day (or night) not just the part that shows up in police reports. Details are important, and they are seldom taken seriously by police: What you had to eat and drink and when. How much sleep you had, when. Where you were and who you were with. These are all important for filling out the picture. Chemical tests for alcohol take a snapshot, and that snapshot is not taken when you are driving but hours later. Sometimes they are just plain wrong! Was your alcohol level going up? Down? Can anyone tell? Having someone else who can tell the court what you were like that day can be vital. |
6. Who are you? Your background and character matter, if not for determining innocence or guilt, then for determining punishment. Not every DUI / OWI / DWI calls for the same punishment.
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This may matter if there is a trial. Even if there is a guilty plea or a loss at trial, the judge should be considering your whole life, not just these few hours. Again, treatment can be vital here. What else is going on in your life, in your family? How will different available punishments effect the others in your life? Will that punishment be disproportionate to what you did? Not everyone arrested for drunk driving is a monster. Most are ordinary or even exemplary people who made a mistake. Also, your medical condition can play a role in your case. Diabetes can mimic intoxication and can result in elevated breath test results. Other conditions can cause nystagmus or balance problems. Police are supposed to check for these, but sometimes forget to do so. Even if your medical condition is not a factor in guilt or innocence, it may matter for sentencing if you are convicted. You are charged with drunk driving. You must be antisocial, or at least a slob and a drunk! Right? That's what the prosecutor wants the judge and jury to believe. That is what they will believe unless you show them something else. You need to show that you are a good, decent person. Someone that they would want for a neighbor or employee. Someone they would like as a friend. I could go on and on about this, but I already have. See Dressing for Court. First impressions make a difference. This is a the reason that I want to meet prospective clients, not just talk to them on the phone. I need to get a feel for what really happened when they were arrested and before. I need to figure out who they are and how that can be shown to the people who will be judging them. I need to see how they do at explaining themselves verbally and nonverbally. Until I meet the person I don't have a good basis for evaluating what can be done for them or what the likely outcome will be. |
7. How did you behave when you were stopped? When you were tested?
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Police reports often read like you could barely walk, talk or stand up. Yet they forget that there is a videotape. It is important to get any video or audio evidence and compare that to the impression made in the reports. Field sobriety tests set a sober person up for failure and sometimes the police make them worse by having them performed in awful conditions. A careful analysis of video can show how unfair they were or that you looked, talked, and acted sober (if perhaps a bit put out at having to do what some have called "stupid people tricks."
Wisconsin's tests are not quite that hard usually, but sober people regularly "fail" one or more of them. They are testing things you don't know about such as your ability to follow arbitrary instructions. What follows is a demonstration of someone doing the "walk and turn." I don't think I would do it that way, though. How many steps did the man take? Did he take 9 steps? Ten? Eleven?
The most common tests are what are called "Standardized Field Sobriety Tests." The "Walk and Turn" test, "Horizontal Gaze Nystagmus" and "One Leg Stand." Again, sober people regularly fail these tests. When the officers deviates from training it makes the test result invalid, but if you ask the officer, they of course followed their training. Videos often show otherwise! I am certified to administer these tests, having taken the same training as the police. I may be able to spot things in those videos that you or someone else without that training will not see. Almost every report says "blood shot eyes" and "slurred speech." How do you speak normally? Who does not have blood shot eyes at some time during the day? Not noted in the report may be that you promptly pulled out your license and registration when asked. You were polite and attentive to the officer. You did not sway when taking these tests. You were patient with what seemed to you silly requests. Those things matter to juries (and even sometimes to judges). More on field sobriety tests. |
8. The chemical test (breathalyzer or blood test).
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First, the breath test administered out at the scene is not valid for court. Unless you haven't been drinking at all for 24 hours there is no reason to take it. It is not admissible in court to show whether or not you were over the legal limit. There are various kinds of machines used for breath testing for use in court. In Wisconsin the police use the "Intoximeter EC/IR" but disable some key reliability checks on it. Like any machine, it is only as good as the people who use it and maintain it. Some of these machines are so difficult to use that a high percentage of people given a test are marked as "refusing" even though they agree to take the test and do the best they can to comply. When they do give a result, it may be wrong. If you believe you were sober but the machine showed intoxication, the machine could have been wrong. Likewise, there can be problems with blood test results. This can be a simple as using an alcohol-based swab before drawing the blood, to shoddy work at the lab. Wisconsin's Department of Hygiene lab, where test results are reached, has had significant problems. Checking on these factors requires training that most people do not have, not even most lawyers. If I spot something, I have to get it reviewed by an expert to make sure that what I suspect is really a problem. The blood test result is not simply a number. It can be skewed by other chemicals that a person has been exposed to (or present and contaminating the sample at the lab)! Here is a shortcut calculator that you could use to see whether your test result makes sense. Note, even if the test does make sense, it may not be admissible. |
9. Prior DUI / OWI / DWI "convictions" need to be reviewed -- may not be countable.
| If you are charged as a repeat offender there is a small but real chance that what the government is counting as prior convictions may not be countable. The law on this keeps changing, but it is important to review your record with an experienced DUI / OWI / DWI lawyer if you are charged as a repeat offender. Through such review and by bringing problems to the attention of the court I have succeeded in having prior offenses not counted for charging purposes. This can make a great difference in the outcome. |
DUI / OWI Court in Dane County, Wisconsin
DUI / OWI / DWI / Drunk Driving Stop in Wisconsin
DUI / OWI / DWI / Drunk Driving while Parked in Wisconsin
DUI / OWI / DWI / Drunk Driving with Prescription Drugs in Wisconsin
List of Ignition Interlock Device Providers in Wisconsin
In general what to do if you are stopped - if the police want to question you.
The material on this page was inspired by a similar page by one of the best drunk driving lawyers in our state Andrew Mishlove in Glendale.
Charles Kyle Kenyon - When Experience Matters
Zoom Court Appearance Information
Attorney at Law
5555 Odana Road, Suite 211
Madison, WI 53719-1280Telephone (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 CourtJ.D. University of Wisconsin Law School 1978 - winner of Abe Sigman prizeCovid19PlanForReopening2022-03.pdf
B.A. University of Wisconsin - Madison - Psychology - 1975Trainer / 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: 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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