Legal Question in DUI Law in Wisconsin

No Field Sobriety Test--Below Limit OWI Arrest

The protocol is that you must first be arrested and charged with drunken driving before the test is offered. If it was not done this way, your attorney should be able to bring a motion to dismiss for lack of probable cause (for both the initial stop and the subsequent arrest). The judge is then required to throw the case out if the prosecution is unable to prove these items. Recent case law from the WI Supreme Court has required that there be some sort of "bad driving" before an officer is justified in stopping somebody. Lawfully weaving within the drivers own lane was found not to be sufficient. You also asked about an under limit test. Technically, no test is ever required to support a drunken driving charge. The case can be proven solely upon circumstantial evidence of impairment, i.e., behavior, smell, etc., if the jury determines that the charges have been proven beyond any reasonable doubt by such things. The related charge of operating over the limit ("BAC >.08")does require a proper test which yields a result over the limit. The sentence is identical if you are convicted on one or the other (or both) of these charges.