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OWI Charges - What to expect:

If you’re reading this web page, we presume you have been charged with Operating While Intoxicated (OWI), Operating with a Prohibited Alcohol Concentration (PAC) and/or Refusal. You are likely scared and may not know what to expect. This web page is not intended to be an exhaustive description of your rights or the legal process. Instead, we are providing this information because knowledge can dispel fear and uncertainty and prepare you emotionally for what can often be a long and complex legal process.

If you have questions about your rights, or the legal process in general, we would be happy to sit down with you for a free consultation. Click the contact button on our home page for information about how to contact us.

Administrative Suspension

If you were charged with Operating While Intoxicated, law enforcement likely asked you to submit to a chemical test of your breath or blood. If you consented to a chemical test, and the result indicated that at the time you were operating a motor vehicle, you had a blood or breath alcohol concentration of 0.08 or more, you will have been issued a citation for Operating with a Prohibited Alcohol Concentration. You should have also been issued a Notice of Intent to Suspend your operating privileges. You are entitled to have an adm inistrative hearing exam iner review certain circumstances surrounding your stop, arrest, and chemical testing to determine whether law enforcement complied with the law before, during and after your arrest. You must submit a written request for an administrative review within 10 days of the date the Notice of Intent to Suspend was issued to you (or 13 days if the Notice was mailed to you), or an administrative suspension of your operating privileges will go into effect 30 days from the date the Notice of Intent to Suspend was issued.

Administrative Review

If a timely request for an administrative review hearing is made, an administrative hearing examiner must schedule a review hearing within 30 days of the issuance of the Notice of Intent to Suspend. At that informal hearing, the administrative hearing examiner will review the following issues:

• Whether law enforcement correctly identified you;

• Whether you were properly informed of your options regarding submitting to a chemical test;

• Whether you had a prohibited alcohol concentration or a detectable amount of a restricted controlled substance in your blood at the time the offense allegedly occurred;

• Whether one or more chemical tests were administered in accordance with the law;

• If one or more tests were administered in accordance with the law, whether each of the test results for those tests indicated you had a prohibited alcohol concentration or a detectable amount of a restricted controlled substance in your blood;

• Whether law enforcement had probable cause to arrest you;

• Whether you were driving or operating a commercial motor vehicle when the offense allegedly occurred; and

• Whether you had a valid prescription for a controlled substance if you were arrested for operating with a detectible amount of that controlled substance in your blood.

If the hearing examiner determines law enforcement did not comply with the law regarding one or more the above issues, your driving privileges will not be administratively suspended (however that does not mean the charges against you will be dropped).

If the hearing examiner does not rule in your favor, the administrative suspension of your operating privileges will go into effect 30 days after the date of the issuance of the Notice of Intent to Suspend. You have a right to a judicial review of the hearing examiner’s decision by a judge, however, you must request such a review within 20 days of the date of the hearing examiner’s decision. A judicial review will not necessarily stay an administrative suspension, although upon request, some courts will grant a stay of the suspension pending its review.

Refusal Hearing

If you did not consent to a chemical test of your blood, breath or urine, you were likely charged with a Refusal. This is a civil forfeiture violation for which your operating privileges can be revoked. A Notice of Intent to Revoke your operating privileges should have been provided to you at the time of your arrest. You may request that a judge review the revocation of your driving privileges but you must make a written request to the court for a refusal hearing within 10 days of your receipt of the Notice of Intent to Revoke. At a refusal hearing, the court will decide:

• Whether the arresting officer had probable cause to believe you were driving or operating a motor vehicle while under the influence of alcohol or a controlled substance;

• Whether the officer complied with the law in informing you of your right to submit to or refuse a chemical test; and

• Whether you refused to permit the chemical test.

If the judge determines one or more of these conditions was not met, your driving privileges will not be revoked. If the judge finds that all the conditions were met, your operating privileges will be revoked at that time. If you do not timely file a written request for a refusal hearing, the revocation of your operating privileges will go into effect 30 days after the date of the issuance of the Notice of Intent to Revoke. You will also be required to submit to a mandatory AODA assessment and Driver Safety Plan.

The Initial Appearance

The initial appearance is a hearing at which you will be asked by a judge or court commissioner to enter a plea of guilty or not guilty. If you wish to challenge the charges, you must enter a plea of not guilty.

Initial Appearances on First Offenses

In Wisconsin, a first offense OWI or PAC charge is a civil charge. This means you may not need to appear in court for the initial appearance, provided you file a written not guilty plea with the court prior the date set for your initial appearance. That date should be indicated on your citation. (You should always confirm that the citation does not indicate a “mandatory” appearance. If you are not sure, you should call the court to inquire about its policy). If you are represented by an attorney, the majority of courts will allow an attorney to m ake all court appearances on your behalf, provided that you have signed an authorization to allow your attorney to do so. If you do not timely file a not guilty plea, you will need to appear in court at the date and time scheduled for initial appearance to enter your plea. If you do not appear or fail to timely file a not guilty plea, a default judgment finding you guilty will be entered against you and the court will impose the penalties attendant to a first offense OWI or PAC (license revocation, a monetary forfeiture, a mandatory Alcohol and Other Drug Assessment (AODA) and Driver Safety Plan).

Initial Appearances on Second or Greater Offenses

In Wisconsin, a second or greater OWI or PAC charge is a criminal charge. You must be present in court for all court dates, including the initial appearance, even if you are represented by an attorney (although a few courts will allow your attorney to appear for you at some non-critical stage hearings). At the initial appearance, you will be asked to enter a plea, and depending upon certain criteria, including the seriousness of the offense, either a signature bond or a cash bond will be required. If a cash bond is ordered, you must pay the bond or you will be held in the county jail until either the bond is paid or your case is resolved. As a condition of bond, some courts, including Waukesha, Racine and Ozaukee County circuit courts, require you to submit to pretrial monitoring, which includes periodic breath or urine testing, to ensure you are maintaining absolute sobriety.

Discovery

Discovery is the process by which the prosecutor provides you with, or allows you to inspect, certain pieces of evidence it intends to use against you, including police reports.

You are entitled to receive discovery in all criminal matters. In Wisconsin, you are also entitled to receive discovery in civil matters (e.g., first offense OWI or PAC or a Refusal) as long as you file a motion for discovery with the court within 10 days of the date of the alleged offense.

Pre-Trial Conferences

After the initial appearance, the court will generally schedule a pre-trial conference. This is typically the first opportunity you will have to speak with the prosecutor about your case. If you are represented by an attorney, he or she will use this opportunity to negotiate the best resolution possible for your case and the prosecutor will usually make some offer to resolve the case short of going to trial. Whether it is in your best interests to resolve your case without going to trial will depend on many factors, including the information contained in the discovery. The attorneys at Anderegg & Associates stay current with the law and carefully search through all discovery to find potential factual and legal defenses to an OWI, PAC or Refusal charge.

Motion Hearings

Legal defenses to an OWI or PAC charge are typically resolved through motion hearings. If you have a legal defense to your charges, you or your attorney must file a motion with the court setting forth the basis upon which your challenge is grounded. Such motions often challenge the constitutionality of the traffic stop or the arrest. A successful challenge to the constitutionality of a stop or arrest will result in the suppression of all of the evidence obtained as a result of the stop or arrest, and will almost always lead to dismissal of the charges. Other motion issues may include the identity of the alleged intoxicated driver or the time elapsed between the alleged driving and the chemical test. Potential relief for a successful motion not based on constitutional grounds varies and may include dismissal of the case or stripping the automatic presumption of validity statutorily given to a chemical test result.

Trial

A trial is the government’s opportunity to present before a judge or jury the evidence against you and your opportunity to present your defense. Certain factors determine whether your case will be heard and decided by a judge or a jury. If your case is a civil case, and it is charged in municipal court, your trial will be heard and decided by the municipal court judge unless you make a written demand for a jury, and pay the statutory fee, within 10 days after the date of your initial appearance. Making a jury demand in municipal court will result in your case being transferred to the circuit court. If you are not represented by counsel, you may wish to discuss with an attorney whether it is in your best interests to request a jury trial at the municipal court level. If you are charged with a first offense OWI and/or PAC in circuit court, you have the right to have your case heard by a jury but again, you must make a written demand for a jury, and pay the statutory fee, within 10 days after the date of your initial appearance. If you do not make a jury demand, your case will be heard and decided by a circuit court judge. If you are charged with a criminal OWI and/or PAC, your case will be heard by a jury in circuit court unless you specifically request that it be heard by the judge. It is not necessary to file a jury demand, and there is no fee to receive a jury trial, if you are charged with a criminal offense.

Entry of a Plea

If you ultimately decide it would be in your best interests to accept an offer from the prosecutor rather than take your case to trial, you will be required to enter a plea of guilty or no contest. If your case is a criminal case, the court will schedule a formal plea hearing at which the circuit court judge will review your rights with you before asking you to enter your plea. If your case is a civil case, you or your attorney may be able to en ter a plea through a document called a stipulation , or the judge may accept your plea at a pretrial conference or other court proceeding.

Sentencing

If you are adjudicated guilty of a civil OWI, PAC , or a Refusal offense, the court will not “sentence” you. Instead, it will impose a license revocation of six to nine months, order you to submit to a mandatory AODA assessment and Driver Safety Plan, and will impose a monetary forfeiture.

If you are adjudicated guilty of a criminal OWI or PAC, the court w ill schedule a sentencing hearing at which the prosecutor will recommend a sentence. The court will then allow you (and/or your attorney) to speak on your behalf, and may allow a limited number of others to speak on your behalf, before it imposes a sentence. Depending on the seriousness of the charges, the sentence may include probation, jail or prison time. It will always include a revocation of your license, a mandatory AODA assessment and Driver Safety Plan, and a monetary fine.

Obtaining an Occupational License

Depending on whether you have prior OWI or PAC convictions, you may be entitled to obtain an occupational license immediately after your license is revoked, or you may have a waiting period before you are eligible for an occupational license. An occupational license allows you to drive up to 60 hours per week during the period of time that your operating privileges are revoked. You may apply for an occupational license at the Department of Motor Vehicles, however, you must show proof of insurance (an SR-22) and pay a fee at the time of application.

Appealing an Adverse Verdict

You always have the right to appeal an adverse verdict from municipal court to a circuit court, or from a circuit court to the court of appeals. The deadlines for doing so vary with the appellate level to which you are filing the appeal. You do not have an absolute right to have your appeal heard by the Wisconsin Supreme Court, however, you may petition that court to hear an appeal if the court of appeals has rendered an adverse opinion in your case. (Typically, the Wisconsin Supreme Court grants about five percent of the petitions it receives each year.)

It is important to determine the deadline for commencing an appeal as failure to timely file it will result in the loss of your right to appeal. Attorney Rex Anderegg of Anderegg & Associates is an accomplished appellate attorney who has filed and litigated more 200 appeals. He would be happy to discuss representing you on an appeal, whether it be from a an adverse decision in a municipal court, circuit court or the court of appeals.