Legal Question in DUI Law in Wisconsin

Re: 2nd DUI- .081

Thank you for the post.

First, portable breath tests are not completely accurate. A .072 reading is only slightly below, not well below, the legal limit of .08 and your alcohol content may have been on the rise when taken. As a result, administering a portable test likely provides little in the way of a defense. However, it is possible that tyour blood test reading may be less than the legal limit. There are also significant uestions as to whether, with such a low reading, the officer had a reasonable suspicion of DWI to administer field sobriety tests.

If you had a second DWI within 10 years of a first, you were charged with a third degree offense. This is very serious and carries with it maximum criminal penalties of a year in jail and a $3000 fine. If convicted there are also mandatory minimum penalties of $1000 and 30 days in jail. Different Judges give different sentences. As a result, understanding your Judge and knowing how to change Judge's can be an important part of the process.

There is also a civil case that results in the revocation of your driver's license. On a third degree offense, you may be revoked for up to six months. This is a separate case even though the challenges are largely the same. In order to challenge you license revocation, you must seek a judicial review by filing a petition within 30 days of the offense.

There are also additional consequences to a conviction including skyrocketing insurance rates, plate impoundments and sometimes vehicle forfeitures.

There are many challenges to a DWI. Officers must follow very specific steps as part of the arrest. If any one step is missing, the case may be dismissed.

� Reasonable Suspicion. The officer must have reasonable suspicion to believe a specific crime has been committed in order to stop a person. If that reasonable suspicion is lacking the stop and the ticket may be invalid;

� Probable Cause to arrest and charge. the officer must make sufficient observations to form a basis for probable cause to believe that you were operating a vehicle while intoxicated. Oftentimes, officers perform field sobriety tests incorrectly making the arrest invalid;

� Procedures at the Station. The officer must follow very specific procedures at the station including reading and recording an Implied Consent Advisory that informs you that you have a right to a lawyer. If any of the steps are omitted, the charges may be dismissed;

� Test Procedures. Testing methods to determine blood alcohol concentrations are imperfect at best. Like any scientific method, any test result has a margin of error. If the machinery is not properly maintained and even if it is properly maintained, the test results may vary fro true Blood Alcohol Concentration. A sufficient variation may result in a reduce charge or no charge.

For a Consultation call us at 612.240.8005.

OWI/ DUI Second Offense, .081 Test Results

You certainly have a better than average case to fight, since you actually have your own breath test with a different outcome. Better yet, even the State's own experts will usually admit that the margin of error on their own breath equipment is around 10%. Therefore, a jury hearing your case may end up with a reasonable doubt and either acquit you or fail to reach a unanimous verdict (i.e., a "hung jury" which would probably help you get a negotiated reduction of the charge afterwards). One explanation for the different outcome, however, would be that your system was still absorbing alcohol when you took the test on the home breathalyzer and that even more alcohol had been absorbed by the time you took the police breath test. It is normal to be on the "up curve" of absorbing alcohol for 30 minutes to an hour after last drinking, and for even longer periods after eating a meal. Both tests could therefore technically have been correct. If you were on the "up curve," and can afford to hire a toxicologist to testify at your trial, you may be able to prove that your blood alcohol content was actually below the .08 limit when you drove. Unfortunately, you also are probably awaiting the outcome of a blood test. They are generally regarding as more accurate than breath tests and are also generally 10-20% higher, since breath equipment gives more of a "benefit of the doubt" than the mass spectroscopy equipment used for a hospital blood test. Those, however, are also assailable sometimes with the right expert witness, including the toxicologist, who could probably factor the anticipated higher reading due to the change of equipment into his arguments on your behalf. You therefore should definitely discuss all of this with your attorney. You might even have a chance of getting the prosecution to reduce the charges without a trial. My comments are not intended as legal advice for you unless you subsequently retain me and allow to fully investigate your case. Instead, these remarks are general comments which are provided as a public service in this online forum.

OWI/ DUI Second Offense, .081 Test Results

You certainly have a better than average case to fight, since you actually have your own breath test with a different outcome. Better yet, even the State's own experts will usually admit that the margin of error on their own breath equipment is around 10%. Therefore, a jury hearing your case may end up with a reasonable doubt and either acquit you or fail to reach a unanimous verdict (i.e., a "hung jury" which would probably help you get a negotiated reduction of the charge afterwards). One explanation for the different outcome, however, would be that your system was still absorbing alcohol when you took the test on the home breathalyzer and that even more alcohol had been absorbed by the time you took the police breath test. It is normal to be on the "up curve" of absorbing alcohol for 30 minutes to an hour after last drinking, and for even longer periods after eating a meal. Both tests could therefore technically have been correct. If you were on the "up curve," and can afford to hire a toxicologist to testify at your trial, you may be able to prove that your blood alcohol content was actually below the .08 limit when you drove. Unfortunately, you also are probably awaiting the outcome of a blood test. They are generally regarding as more accurate than breath tests and are also generally 10-20% higher, since breath equipment gives more of a "benefit of the doubt" than the mass spectroscopy equipment used for a hospital blood test. Those, however, are also assailable sometimes with the right expert witness, including the toxicologist, who could probably factor the anticipated higher reading due to the change of equipment into his arguments on your behalf. You therefore should definitely discuss all of this with your attorney. You might even have a chance of getting the prosecution to reduce the charges without a trial. My comments are not intended as legal advice for you unless you subsequently retain me and allow to fully investigate your case. Instead, these remarks are general comments which are provided as a public service in this online forum. Finally, my familiarity is with WI law rather than MN law; I do not practice in MN.