Fitchburg DUI Lawyers

  1. Griessmeyer, Clayton: Defenses to DUI in Wisconsin * (1.) No Reasonable Suspicion to Stop: Argue that the police officer who stopped you did not have a reasonable suspicion (specific and articulable facts together with reasonable inferences that would lead a reasonably prudent office to believe criminal activity was afoot). If this was a fact, and argued effectively, evidence relating to your arrest would be suppressed and the prosecution's case would be non existent leading a dismissal. This is generally proved with a motion to suppress evidence prior to trial. An example of this might be when a driver fails to signal a turn and no other vehicle is affected including any officer in the area. See Wis. Stat. 346.34 (1) (b). * (2.) PBT Should not be Given any Weight : Argue that the police officer who stopped you failed to follow the requisite rules regarding a preliminary breath/PBT/roadside breathalyzer test. Or argue that the PBT had problems- (in a previous case Attorney Griessmeyer was alerted to the fact that the PBT had overheated and was taken out of service just days before the arrest of the driver). This may allow the driver's attorney to argue to the Deputy District Attorney or City Attorney that the numerical result of the preliminary breath test/ PBT/ roadside breathalyzer should not be considered. This would help resolve your case in a manner most favorable to you. An example of how this might help a driver would be the following: An officer stops a driver who blows a .09 on a PBT. The driver then goes to the police station and blows a .07 on the real breathalyzer. If the arresting officer failed to follow procedure regarding the PBT, then the driver's lawyer would have a good argument that the driver was really at a .07 or less at the time of driving and should not be charged with OWI. 30.682 Preliminary Breath screening Test. 30.682(1) (1) Requirement. A person shall provide a sample of his or her breath for a preliminary breath screening test if a law enforcement officer has probable cause to believe that the person is violating or has violated the intoxicated boating law and if, prior to an arrest, the law enforcement officer requested the person to provide this sample. 30.682(2) (2) Use of test results. A law enforcement officer may use the results of a preliminary breath screening test for the purpose of deciding whether or not to arrest a person for a violation of the intoxicated boating law or for the purpose of deciding whether or not to request a chemical test under s. 30.684. Following the preliminary breath screening test, chemical tests may be required of the person under s. 30.684. 30.682(3) (3) Admissibility. The result of a preliminary breath screening test is not admissible in any action or proceeding except to show probable cause for an arrest, if the arrest is challenged, or to show that a chemical test was properly required of a person under s. 30.684. * (3.) No Probable Cause to Arrest: Argue that there was insufficient evidence to arrest the driver based on the facts and circumstances. This may include arguments that there was no indicia of intoxication/ under the influence, the driver did not fail any field sobriety tests (FSTS) etc. This is generally a very tough argument to make prior to a jury trial because courts usually tend to rely on numerical results of chemical tests regardless of the driver's behavior. * (4.) Problems with the Breath, Blood or Urine Test. There are numerous arguments regarding chemical tests that can be made by an effective Wisconsin OWI attorney. Some of these include:Breath- arguing that the breath test machine was reading high (based upon records received by the attorney) no 20 minute observation, presence of mouth alcohol, medical conditions, only one test was given instead of two, Blood- problems with chain of custody of blood sample, venipuncture vs. arterial pull, too much time passed between driving and the blood pull for an accurate result ***Note, blood samples can be retested after a DWI charge by an expert your Wisconsin DWI lawyer hires. In low blood alcohol cases this may make a dramatic difference (example .08 by police and .07 on retest). * (5.) Rising Blood Alcohol: A common argument made by Wisconsin OWI attorneys is that the driver's blood alcohol level was lower at the time of driving than what was recorded when the police tested the driver's blood or breath. (example .06 when driving but .09 at time of test). If your case goes to trial, a toxicologist may testify using the Widmark formula regarding your blood alcohol concentration and the rate of absorption. This is a complicated procedure but to simplify goes like this- the Widmark formula determines how much effect each beer/drink has on you personally depending on weight, food, time of last meal etc. For example, a toxicologist may determine that you personally rise at a level of .029 per drink. Therefore if you had three drinks shortly before driving, you may have been at a .06 about a half hour later (when you were stopped behind the wheel) but 1 hour later when you took the breathalyzer at the police station, you registered .09. Note, this cuts both ways. If you tell the police you stopped drinking 4 hours before driving there is no argument that you were rising. Moreover, the opposite may also be true (declining blood alcohol). The prosecution often argues retrograde extrapolation. To put it simply, the prosecution will argue that your blood alcohol content at the time of driving was actually higher than what was recorded during you blood test at the hospital or breath test at the police station. For example, let's say you gave a blood test one hour after driving and it was a .14. The prosecution will bring in their expert to testify and extrapolate backward to come to the conclusion that you were really peaked out at the time of driving at a .17 and that during the hour it took to transport you to the hospital/police station, your b.a.c. went down .03. The above arguments will also be influenced by a PBT if you took one. For Example, if your PBT was .08 and the breathalyzer at the police station was .06 it would be hard to argue that you were rising on your way to the police station. Or, consider this, you register .08 on the PBT and .10 on the breathalyzer, now your attorney can argue that based upon the PBT you were really at .08 or less at the time of driving. This is one of the many reasons why it is important to hire a Wisconsin OWI attorney to protect your rights. * Wisconsin Breath Test Requirement: See Wisconsin Administrative Code Trans 311.06: Procedures for quantitative breath analysis shall include the following controls in conjunction with the testing of each subject: (a) Observation by a law officer or combination of law enforcement persons, of the test subject for a minimum of 20 minutes prior to the collection of the breath specimen, during which time the test subject did not ingest alcohol, regurgitate, vomit, or smoke. But, see City of Fond Du Lac v. Binotto 264 Wis. 2d. 894 (2003). Failure to follow 20 minute rule goes to the weight of evidence and not admissibility. * (6.) Wisconsin Field Sobriety Tests (FSTS) Anytime an OWI stop is made, the arresting officer will administer field sobriety tests. There are only three recognized field sobriety tests: These include 1) Horizontal Gaze Nystagmus 2) Walk and turn 3) One leg stand. These tests are not always accurate and a good Wisconsin OWI lawyer can convey the reality regarding these tests to a jury. * The horizontal gaze nystagmus (follow my pen/finger with your eyes) is often not performed properly by arresting officers. Moreover it is designed to test whether a subject is above .10 blood alcohol concentration and not .08. Last, according to the National Highway Traffic Safety Administration this test is only accurate to 77% (it is false positive for several reasons including medical disorders, caffeine, eye strain, nicotine, contacts etc.). For the above reasons and several others, an effective Wisconsin OWI lawyer can prove a driver was not under the influence regardless of the observations of the arresting officer regarding horizontal gaze nystagmus. * In the walk and turn test, the subject is directed to take nine steps, heel to toe, along a straight line. After taking the steps, the driver must turn on one foot and return in the same manner in the opposite direction. The examiner looks for seven indicators of impairment. If the driver cannot keep balance while listening to instructions, begins before the instructions are finished stops while walking to regain balance, does not touch heel to toe, uses arms to balance, loses balance while turning, or takes an incorrect number of steps, NHTSA research indicates that 68 percent of individuals who exhibit two or more indicators in the performance o the test will have a BAC of .10 or greater. * In the one-leg stand test, the suspect is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (one thousand one, one thousand two) until told to put the foot down. The officer times the subject for 30 seconds. The officer looks for four indicators of impairment: including swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down. NHTSA research indicates that 65 percent of individuals who exhibit two or more such indicators in the performance of the test will have a BAC of .10 or greater. * Other Field Sobriety Tests: It is very common for officers to provide other non-standardized field sobriety tests to drivers. This creates several problems, the most concerning being that it is a subjective test designed for the driver to fail. *
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