Common Misconceptions on OWI Cases
Being arrested for drunk driving is a stressful experience that can threaten your job, personal relationships and your freedom. There is a lot of information available to people regarding drunk driving arrests, some of which is helpful, most of which is not. Everyday we are contacted by people who have questions about the legal process or are seeking legal representation on their OWI case. Below is a list of the ten most common myths or misconceptions that I receive about drunk driving cases in Wisconsin.
1. Drunk Driving Is A Minor Offense.
Nothing could be further from the truth. Although the first offense is a non-criminal offense, drunk driving laws in Wisconsin are tough. The legislature modified the drunk driving laws in July 2010 and increased the punishments for repeat offenders. The potential punishments range anywhere from a monetary fine for a first offense to a jail or prison sentence for repeat offenders. In fact, the laws contain minimum mandatory jail sentences for repeat offenders. Besides the loss of liberty, a person will face a driver’s license revocation ranging from six months to a year or more. Simply put, our elected officials are serious about combating drunk driving and are seeking to increase the punishment with each legislative session.
2. The Police Cannot Arrest Me If I Refuse To Give A Breath Or Blood Sample.
Of all the “myths” out there about drunk driving cases, this one seems to get the most traction. Many people incorrectly believe that they would be better off by refusing to provide a breath or blood sample to the police once they are arrested. Refusing the breath or blood test is a very bad idea. Here is why. In Wisconsin, our driving privileges are conditioned upon our implied consent that we will submit to a chemical test to check for drunk driving. If we refuse to honor that consent, it gives the police the right to arrest you.
When someone refuses to give a sample, the police can still take a person to a hospital and conduct a forced blood draw under most circumstances. In addition, you can still be charged with an OWI even if you refused the test.
A “refusal” is a separate civil case that carries the possibility of a 12 month or longer license revocation. It is the “stick” that makes implied consent work. For example, if a person gives a breath sample and is charged with a first offense, the maximum license revocation is 6-9 months. Thus, you would be worse off by refusing. To make matters worse, refusal hearings are almost impossible to defend against and the fact that you refused could be used against you at your OWI trial. Simply put, there is nothing to gain by refusing; it will only make matters worse for you.
3. If I “Pass” The Field Sobriety Tests I Cannot Get Arrested.
When it comes to field sobriety tests there really is no pass or fail. Rather, according to original studies conducted by National Highway Traffic Safety Administration (NHTSA), the field sobriety tests are not designed to detect impairment, but rather give a probability that a driver is at or above a 0.08% BAC. Thus, how a person performs during the field sobriety tests is just one factor that a police officer will use when deciding to arrest someone. In theory, a person could perform flawlessly on the field sobriety tests and still get arrested for OWI given many other factors that may be present including observed erratic driving and the result of the portable breath test.
4. If I Am Honest With The Cop About How Much I Have Had To Drink He Will Let Me Go.
Unfortunately, this is not true. If a person admits to drinking prior to driving, he or she will very likely get arrested if other factors are present as well (i.e. observed erratic or unsafe driving, poor performance on field sobriety tests, etc.). During the vast majority of traffic stops where drunk driving is suspected, the officer will ask a person if they have been drinking. My advice is to tell the police officer that you do not want to answer that question without consulting with an attorney. I do not advocate lying to the police because that could get a person in more trouble, but admitting to the crime will only ensure you get arrested and charged.
5. I Can’t Get Arrested For Drunk Driving If I Wasn’t Driving.
As bizarre as it sounds, that is not true. In Wisconsin a person is guilty of drunk driving if he or she “operates” a motor vehicle while under the influence of an intoxicant. Our courts have taken an expansive view of the term “operates” and it means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion. Actually driving the vehicle is not required. Thus, a person could be subject to arrest if he or she was simply sitting in the driver’s seat of the car while it is running.
6. I Will Not Be Able To Legally Drive While My Case Is Pending.
Most people will be able to legally drive while their OWI case is pending. When a person is arrested for drunk driving, the Department of Transportation administratively automatically suspends that person’s driver’s license 30 days from the time he or she receives notice of the suspension. Typically, the arresting officer will provide the driver with a Notice of Intent to Suspend form following arrest. In other circumstances, the form will be mailed to the arrested driver. Importantly, there is a 10 day window for the arrested driver to request a hearing to challenge the administrative suspension. If the driver does not request the hearing within ten days, then his or her driver’s license will be suspended 30 days after the notice date. The good news is that most people will be able to obtain an occupational license that will allow them to drive for up to 12 hours a day, but no more than 60 hours per week while the case is pending.
If a person drives without a valid driver’s license he or she could be arrested for driving while suspended and face additional penalties.
7. If The Police Officer Did Not Record My Stop/Arrest My Case Will Be Dismissed.
Not true. Within the last couple years, most police departments have installed some sort of police squad recording device that is activated during traffic stops. Some police officers wear a recording device on their uniforms as well. A “squad video” is typically a key piece of evidence in an OWI case because it will usually record the driving immediately before the traffic stop and the interaction between the cop and the driver during the stop, including the field sobriety tests. If an officer did not record the traffic stop or the recording device malfunctioned the OWI case can still proceed, however, unless there is evidence that the video was destroyed in bad faith.
8. There Is No Way To Challenge My Blood Or Breath Alcohol Content.
A person’s blood or breath alcohol content (BAC) is one of the most important “facts” in an OWI case. Typically, the higher the person’s BAC the more severe the penalties will be both in terms of a driver’s license revocation and any period of confinement. In Wisconsin, a state run laboratory will perform the scientific testing necessary to determine the BAC result. While this testing is accepted by the courts, it is not immune from attack. There are several factors that could cause a false positive result including human error, defective equipment, or certain medical conditions. A competent criminal defense attorney will explore these areas to ascertain if there is a way to challenge the BAC result.
9. If I Do Not Go To Court My Case Will Be Dismissed.
If you are charged with an OWI offense, you will receive a notice for a future court date. Typically, you must appear at all court dates for a criminal case. For a non-criminal first offense, your attorney can typically appear on your behalf. However, the court case will not get dismissed simply because you do not appear for court. Rather, the judge will very likely issue a warrant for your arrest. That warrant will remain active until you have contact with the police. At that time, the police will arrest you pursuant to the warrant and bring you back to court to face the OWI charge. In addition, you could face an additional charge of “bail jumping” for violating the terms of your bail by not appearing for court. Simply put, there is no advantage to be gained by missing court.
10. I Am Better Off Representing Myself.
Unfortunately, this is not true even though people can represent themselves in most circumstances if they choose to. As Abraham Lincoln wisely said, “A person who represents himself has a fool for a client". Most people who decide to represent themselves are untrained in the law and will be unfamiliar with the legal process and defense strategies. Hiring an attorney can be expensive, but from my experience it is money well spent to ensure your rights are protected. If you cannot afford to hire an attorney, I recommend contacting the local public defender office to see if you qualify for representation.