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Eau Claire, Wisconsin, DUI Lawyer

Arrested for Drunk Driving – Now What?​​

  • Don't Panic: Stay calm. You have some important decisions to make.
  • Establish the Facts: Write down the events leading up to your arrest as soon as possible – where you were, who was there, how many drinks you had, prescription medications you take, and anything else that may have contributed to getting you pulled over. Also try to recall anything you can about the arrest itself.
  • Don't Talk: Keep this information to yourself. Anything you say can end up as evidence against you if your case goes to trial.
  • Consult With an Attorney ASAP: Don't wait.
  • Be Prepared to Pay: It's not all profit for the attorney: some typical costs in a drunk driving defense case include ordering discovery (police reports, DOT records, court transcripts and copies), subpoena service and witness fees, court fees and hiring an investigator or expert if necessary.
  • Gather Documents: You will start to receive important items in the mail: your ticket(s), test results, letters from the DOT about your driving privileges, and other paperwork. Start a file and keep all these documents together for your attorney.

If you have been charged with OWI, the state is already in the process of suspending your license. Should you fail to challenge the administrative suspension within the required time period, the suspension will become effective for six months. Cohen Law Offices, LLC can fight your driver's license suspension.

OWI and DUI defense lawyer Michael Cohen understand Wisconsin's drunk driving law and know how to fight OWI charges. We have obtained dismissals and not-guilty verdicts in numerous OWI cases. If you have refused a breath test, their work as OWI defense attorneys is that much more important. Attorney Cohen have won cases where their clients refused the breathalyzer test.

What to Do When You Are Pulled Over​​

Do Not Answer Any Questions Regarding Your Alcohol Consumption 

Do not panic! Be patient and stay calm. You have some important decisions to start making. First, do not talk. Like most good people, you will want to be honest and cooperative with the police officer. I strongly urge you, however, to politely decline to answer any questions related to what you had to drink, when you were drinking, etc. You may have a defense based on your drinking history, but you could lose that defense if you accidentally give the officer an incorrect drinking history. Besides, you have the right to remain silent.

Write down the events that you can remember leading up to and including your arrest as soon as possible. Write down things such as where you were, who you were with or who was present, what you ate and drank and when, any medications that you were on, and anything else that may be important to remember later.

Also, you will start to receive important documents in the mail. Collect and save them all. Get them to your attorney. On this note, do not wait to get an attorney who is qualified and experienced, such as Mr. Cohen at Cohen Law Offices, LLC.

The Field Sobriety Tests 

Whether you take the field sobriety test is up to you. But consider that not doing the field sobriety tests is often misconstrued by judges and juries as evidence of guilt. Also, whether you cooperate with the police may be taken into consideration during plea negotiations and sentencing.

Don't Be Pressured Into Pleading Guilty to an OWI Charge! 

The penalties are too severe. A drunk-driving conviction can affect your driving privileges, your insurance rates and your freedom. If you win your case, you not only clear your record, but you won't have to pay fines, attend alcohol classes or pay high-risk car insurance.

An arrest for drunk driving has serious consequences. Without a strong defense strategy, you could lose money, your privilege to drive and your freedom. Attorney Michael Cohen is experienced trial lawyer who aggressively defend people accused of drunk driving and other related traffic violations. They will work zealously to defend your rights and preserve your freedom.

You Face Two Legal Challenges

An arrest for drunk driving in Wisconsin leads to two legal proceedings — a criminal proceeding and an administrative proceeding that could result in the suspension of your privilege to drive. Attorney Michael Cohen will represent you effectively in both actions.

It is important to act quickly to obtain legal representation after an OWI/DWI arrest. If you took a test and the result was over the legal limit, then you must request an administrative hearing within 10 days. If you refused to take a test, then you must request a hearing within 10 days. Failure to request a hearing may result in your losing your privilege to drive in Wisconsin.

Aggressively Defending Your Rights 

Michael Cohen will zealously defend against criminal drunk driving charges. They carefully examine every aspect of your case, looking for a potentially successful defense strategy to suppress evidence, collaterally attack prior convictions and, when necessary, to effectively try the case to a jury.

Our attorneys will explain the issues in your case and recommend appropriate courses of action. If possible, they will seek to obtain a dismissal of the charge or reduction to a non-alcohol traffic offense. If you decide to fight the charge, they will take care of you and zealously defend you before, during, and after trial.

Whether you call it OWI, DWI or DUI, your future is at risk. Our legal team will work with you to protect your freedom and your privilege to drive.

OWI – The Basic Defense ​​

Operating While Intoxicated, whether it’s your first or seventh, involves the same core set of elements.

First, the prosecutor has to prove you drove or operated a motor vehicle on a highway or a “premises held out to the public for motor vehicle usage.”

Second, they have to prove you were “under the influence” of alcohol or another drug, or had a prohibited blood alcohol concentration in excess of a legal limit.

What Does “Operate” Mean? 

Plain English. You can be arrested and successfully prosecuted in Wisconsin for “operating” while impaired for sure if your engine is running, even if the car is in park and you are asleep trying to sober up. You will also be in trouble, most likely, if you do any of the things you would normally do to start a vehicle, such as put the keys in the ignition, turn on the electrical, take the car out of park, maybe even turn on the headlights. Even if it is not your intent, these are all parts of what you do to start up a vehicle to prepare it for motion.

What Is a “Motor Vehicle”? 

Any self-propelled device by which a person may be transported on a highway. Snowmobiles and boats have their own statutes.

What Counts as a “Highway”? 

Any “official” roadway in the state that you might drive on would count as a highway. Also counting are “premises held out to the public for motor vehicle usage,” which includes things like business parking lots, parking lots at work, and parking lots at an apartment complex, unless there are four or fewer units. Driveways or single-family farms are not included.

What Does “Under the Influence” Mean? 

Under the Influence means impaired by alcohol or other intoxicant or controlled substance. Just impaired. Buzzed driving is drunk driving. If your case involves a combination of alcohol and drugs, or a combination of different drugs, under the influence means any impairment by intoxicating chemicals that prevents a person from driving safely.

Under the Influence includes being influenced by alcohol, any other intoxicant, a controlled substance or its “analog,” or any combination of these.

What Does “Prohibited Blood Alcohol Concentration” Mean? 

For most drivers, it means 0.08% of alcohol by weight in the blood or 0.08 grams of alcohol in 210 liters of breath. For drivers with more than three convictions, the figure is 0.02. Commercial drivers are over the limit at 0.04.

Blood Alcohol Level 

Your BAC is determined by testing your blood, breath or urine.

Breath testing is most common, because police don’t have to send in a sample to get results. These machines can only detect alcohol.

Blood testing may only be done according to approved methods established by the Wisconsin Hygiene Lab.

Urine testing is used less often. It is the least accurate of the three.

How Are the Results of My Breath or Blood Test Used at Court? 

The law says that the results of a breath or blood test are presumed to be accurate and are admissible at trial against you. In other words, the jury is going to hear the result. All you can do is try to convince them it is inaccurate. You cannot get the judge to prevent them from hearing it in the first place.

There are exceptions. If there are independent reasons for keeping the results away from the jury, the judge can do that. If a chemical test is done within three hours, the results are admissible at trial to prove you were intoxicated without an expert to establish that the given level would really make a person like you intoxicated.

What Happens to My License If I Have a Prohibited Alcohol Concentration? 

If any test shows a prohibited alcohol concentration, the officer will issue you a notice of administrative suspension. That notice is your driver’s license for the next 30 days, after which your license is automatically suspended for six months. Within ten days of receiving the notice, you may request in writing that DOT review the administrative suspension.

If the hearing officer determines that the requirements for administrative suspension are met and you had a prohibited alcohol concentration at the time of driving, the six-month suspension is upheld. If not, you get your license back with no additional fees. Any time spent on administrative suspension would count toward the total revocation received if ultimately convicted of the offense.

Implied Consent 

Implied consent is a legal rule which allows the police to obtain a chemical test from you to see if you have been drinking or using drugs to the point of being intoxicated while driving. If you are unconscious, the law says you consent to have your blood drawn.

Do I Have to Let Them Test My Blood Alcohol Level? 

Yes. If you drive on the roads in Wisconsin or have a Wisconsin driver’s license, you are deemed by law to have consented to providing a breath, blood or urine test under certain circumstances. This is called Wisconsin’s Implied Consent Law. Refusal to give a sample when asked is a separate offense, which then counts as a prior conviction.

Can I Get a Second Alcohol Test? 

Yes, blood alcohol tests fall into three categories.

There is the primary test, the one law enforcement chooses. For the primary test, the officer can ask you to perform “one or more tests.”

The alternative test is one the police have to provide you at their expense if you request it. Before you are entitled to it, you have to submit to the primary test(s).

Finally, the additional test is another test you may request at your own expense. It is up to you to choose which type of test to get, and where to get it. This opportunity must be provided to you within three hours of your arrest if you request it. To comply with this time limit, police only have to process you and release you.

You only have a right to either an alternative or additional test, not both. If the police fail to comply with your right to a second test, suppression of the primary test results is the remedy.

Do I Have a Right to an Attorney Before I Submit to a Test? 

You do not have a right to speak to an attorney before you decide whether to submit to a chemical test of your breath or blood. If you insist on waiting until you speak to an attorney that will count as a refusal.

What Happens If I Refuse the Test? 

If you refuse the test for blood or breath alcohol, the officer will take your license and issue you a notice of intent to revoke your license, which becomes your license for 30 days. As long as you request it within 10 days, you have a right to a hearing before the circuit court to test whether the revocation is valid. You can be prosecuted for refusal as well as the underlying OWI offense you may also be charged with. One defense is if you have a physical disability or disease that prevents you from cooperating.

If the court finds you did in fact refuse, your license will be revoked for at least one year, or more if you have prior OWI convictions. If you have enough priors, you may also be required to install an ignition interlock device on your car.

Defenses​​

Many people are under the false impression that OWI cases are impossible to defend, that if you are over the legal limit, you are guilty and there’s nothing to fight about. Cases can be attacked from a number of different angles.

Suppression of the Evidence

Police offers have to have a reasonable suspicion to stop you and probable cause to arrest you. If the officer pulls you over for an invalid reason, or gives you a PBT without establishing probable cause to believe you are OWI, or does any number of other things wrong before gathering evidence against you, he may be violating your rights. All procedures in an OWI case must be followed, and if they are not, the evidence against you is subject to possible suppression. There are dozens of ways that the police can make mistakes that result in suppression. Suppressed evidence means the prosecutor cannot use it against you.

Challenging “Under the Influence”

The law defines “under the influence” as being “incapable of safe driving,” and the usual jury instruction defines it as “less able to exercise the clear judgment and steady hand necessary to handle and control a motor vehicle.” It is quite possible that a person can feel the effect of alcohol and still be capable of safe driving and able to exercise clear judgment. A defense to an under the influence charge can be built around any evidence of good driving. This type of defense is only useful in the absence of a blood alcohol reading over the legal limit. If you are over the limit, you are presumed to be under the influence.

Motions to Dismiss

A criminal OWI case, like any criminal case, starts with a complaint. A complaint must be sufficient in that it must allege probable cause to believe a crime has been committed. If it does not, it can be dismissed.

Challenges to Prior Convictions

If you have prior convictions and did not have an attorney for them, you may challenge their validity for use as a prior in your current case.

Challenges to the “Machine” and the “Science”

The Intoximeter – the machine the police have you blow in at the station – is just that: a machine. The Intoximeter is a machine that, in order to work properly, has to trap the deepest part of your lung exhale, and then blow that air over a tiny little disk that supposedly throws off two electrons for every molecule of alcohol in your breath. Meanwhile, hydrogen is also given off, and that forms into water with the air in the test tube, which creates a tiny electrical current between the water and the extra electrons. That current is measured and converted into your breath alcohol reading. The results, therefore, are subject to all sorts of challenges.

Another challenge is to other sources of alcohol in your breath. For the machine to be accurate, it needs deep lung air, but that air passes through the upper lungs, mucous membranes and saliva on its way out, all of which can expel excess alcohol that contaminate the sample. It only takes a tiny 1.04 millionth of an ounce of alcohol in an Intoximeter sample to produce a 0.08.

Similarly, blood evidence must be scientifically evaluated. There are issues about whether alcohol develops after the draw, and whether the crime lab mixed your sample up with someone else’s. There are also issues with the gas chromatograph (a machine that, basically, vaporizes your blood, then shines a light through it to see how many alcohol molecules there are). Urine is also subject to challenge, primarily in that it is mainly a sample of what your BAC used to be.

The Curve Defense

The law is you can’t be over the limit at the time of driving. If you took a drink right before you drove and were stopped shortly thereafter, that last drink wasn’t in your system when you were driving, but would have absorbed by the time of the test. That means the reading on the machine is higher than what your BAC really was at the time of driving.

Challenges to the Field Sobriety Tests

The field sobriety tests are the evidence the officer uses to establish probable cause to arrest you, and also provide evidence at trial that you were too impaired to drive. These tests have to be given by the officer precisely according to the instructions; even then, they are only accurate a relatively small percentage of the time in showing a person is over the limit.

Punishment ​​

The chart below captures the basic sentencing scheme for OWI law, but keep in mind that penalties change often, and there are often other consequences than those listed here.

Conviction
Fine or Forfeiture
Confinement Sentence
Driving Consequences if Commited in Wisconsin
Consequences if Minor under 16 in Vehicle
 Consequences if Committed in Another Jurisdiction
Occupational License
OWI, First Offense
$150 - $300 (plus $365 OWI surcharge)
No
Revocation: 6 - 9 month
If AC is 0.15 or more: Vehicle equipped with IID for 1 year
Fine: $350 - $1100
Jail: 5 days to 6 months
12 - 18 months + confinement length
Revocation:
6 months
Can apply immdediately If IID is ordered:
0.02 PAC limit
OWI, Second Offense No prior OWI within 10 years nor Great Bodily Harm or Homicide by Intoxication Use offenses during offender's life.
$150 - $300 (plus $365 OWI surcharge)
No
Revocation: 6 - 9 month 
If AC is 0.15 or more: Vehicle equipped with IID for 1 year
Fine: $350 - $1100
Jail: 5 days to 6 months
Rev./IID Max. Length:
12 - 18 months + confinement length
Revocation:
6 months
Can apply immediately Absolute Sobriety Required
OWI, Second Offense Prior OWI within 10 years or Great Bodily Harm or Homicide by Intoxicated Use offense during offender's life.
$350 - $1,100 (plus $365 OWI surchage)
5 days - 6 months
Revocation: 12 - 18 month + confinement length
Vehicle equipped with IID for 1 year to 18 months confinement length
Fine: $700 - 2,200
Jail: 10 days - 12 months
Rev./IID Max. Length:
2 - 3 years + confinement length
Revocation:
1 year
Can apply after 45 days
Absolute Sobriety Required
OWI, Third Offense
$600 - $2,000 (Excessive BAC Escalator) (plus $365 OWI surcharge)
45 days - 1 year
Revocation: 2 -  3 year + confinement length
Vehicle equipped with IID for 1 year to 3 years +
Fine: $1,200 - 4,000
Jail: 90 days - 2 years
Rev./IID Max. Length:
4 - 6 years + confinement length
Revocation:
1 year
Can apply after 45 days 
Absolute Sobriety Required
OWI, Fourth Offense none within previous 5 years
$600 - 2,000 (Excessive BAC Escalator)(plus $365 OWI surchage)
60 days - 1 year
Revocation: 2 - 3 year + confinement length
Vehicle equipped with IID for 1 year to 3 years + confinement length
Fine: $1,200 - 4,000
Jail: 120 days - 2 years
Rev./IID Max. Length:
4 - 6 years + confinement length
Revocation:
1 year
Can apply after 45 days
Absolute Sobriety Required
OWI, Fourth Offense including 1 or more within previous 5 years
$600 - 10,000 (Excessive BAC Escalator)
(plus $365 OWI surcharge)
Class H Felony
6 months - 6 years
Revocation: 2 - 3 year + confinement length
Vehicle equipped with IID for 1 year to 3 years + confinement length
Fine: $1,200 - 20,000
Jail: 1 year - 12 years
Rev./IID Max. Length:
4 - 6 years  + confinement length
Revocation:
1 year
Can apply after 45 days
Absolute Sobriety Required
OWI, Fifth or Sixth Offense
$600 - 10,000 (Excessive BAC Escalator)
(plus $365 OWI surchage)
Class H Felony
6 months - 6 years
Revocation: 2 - 3 year + confinement length
Vehicle Equipped with IID for 1 year to 3 years + confinement length
Fine: $1,200 - 20,000
Jail: 1 year - 12 years
Rev./IID Max. Length:
4 - 6 years + confinement length
Revocation:
1 year
Can apply after 45 days
Absolute Sobriety Required
OWI, Seventh, Eighth, or Ninth Offense
Up to $25,000 (plus $365 OWI surchage)
Class G Felony
3 - 10 years
Revocation: 2 - 3  years + confinement length
Vehicle equipped with IID for 1 year to 3 years + confinement length
Fine: Up to $50,000 
Jail: 6 - 20 years
Rev./IID Max. Length
4 - 6 years + confinement length
Revocation:
1 year
Can apply after 45 days 
Absolute Sobriety Required
OWI, Tenth or Greater Offense
Up to $25,000
(plus $365 OWI surcharge)
Class F Felony
4 - 12.5 years
Revocation: 2  - 3 years + confinement length
Vehicle equipped with IID for 1 year to 3 years + confinement length
Fine: Up to $50,000 
Jail: 8 - 25 years
Rev./IID Max. Length:
4 - 6 years + confinement length
Revocation:
1 year
Can apply after 45 days
Absolute Sobriety Required
Causing Injury Whil OWI with no prior OWI offense or chem test refusal
$300 - 2,000
(plus $365 OWI surchage)
30 days - 1 year
Revocation: 1 - 2 years + confinement length
If AC of 0.15 or higher:
Vehicle equipped with IID for 1 year to 2 years + confinement length
FFine: $600 - 4,000
Jail: 60 days - 2 years
Rev./IID Max. Length:
2 - 4 years + confinement length
Revocation:
1 year
Can apply after 60 days 
If IID is ordered:
0.02 PAC limit
Causing Injury while OWI offense or chem test refusal
Up to $10,000
(plus $365 OWI surchage)
Class H Felony
Up to 6 years
Revocation: 1 - 2 years + confinement length
If AC of 0.15 or higher:
Vehicle equipped with IID for 1 year to 2 years + confinement length
Fine: $20,000
Jail: Up to 12 years
Rev./IID Max. Length:
2 - 4 years + confinement length
Revocation:
1 - 2 years
Can apply after 60 days except if 2 or more offenses within 5 years:
Can apply after 1 year
Absolute Sobriety Required
Causing Great Bodily Harm by OWI
Up to $25,000
(plus $365 OWI surcharge)
Class F Felony
Up to 12.5 years
Revocation: 2 years + confinement length 
If AC is 0.15 or more, or not first offense:
Vehicle equipped with IID for 1 year to 2 year + confinement length
Rev./IID Max. Length:
4 years + confinement length
*If unborn child is in vehicle:
Rev./IID Max. Length:
4 years + confinement length
Revocation:
2 years
Can apply after 120 days except if 2 or more offenses within 5 years:
Can apply after 1 year AND Absolute Sobriety Required
Homicide While OWI
Up to $100,000
(plus $365 OWI surcharge)
class D Felony
up to 25 years
If one or more prior OWI-related offense:
Class C Felony, up to 40 years
Revocation: 5 years + confinement length 
If AC is 0.15 or more, or not first offense:
Vehicle equipped with IID for 1 year to 2 years + confinement length
Rev./IID Max. Length:
10 years + confinemnt length
* If unborn child is in vehicle:
Rev./IID Max. Length:
10 years _ confinement length
Revocation:
5 year
Can apply after 120 days except if 2 or more offenses within 5 years:
Can apply after 1 year AND Absolute Sobriety Required
Chemical Test Refusal
(First Offense)
[343.305]
None
None
Revocation: 1 year
* Vehicle Equipped with ID for 1 year
Rev./IID Max. Length:
2 years
None
Can apply after 30 days
Chemical Test Refusal
(Second Offense)
No prior OWI within 10 years
nor Great Bodily Harm or
Homicide by Intoxicated Use
offenses during offender's life.
[343.305(9)]
None
None
Revocation: 1 year
Vehicle equipped with IID for 1 year
Rev./IID Max. Length:
2 years
None
Can apply after 30 days
Absolute Sobriety Required
Chemical Test Refusal (Second Offense)
Prior OWI within 10 years
or Great Bodily Harm or Homicide by Intoxicated Use
offenses during offender's life.
[343.305(9)]
None
NoneRevocation: 2 year Vehicle equipped with IID for 1 year to 2 years + confinement length
Rev./IID Max. Length:
4 years
None
Can apply after 90 days, except if 2 or more offenses within 5 years
Can apply after 1 year
Absolute Sobriety Required
Chemical Test Refusal
(Third or Greater Offense)
[343.305(9)]
None
None
Revocation: 3 years
Vehicle equipped with IID for 1 year to 3 years + confinement length
Rev./IID Max. Length:
6 years
None
Can apply after 120 days except if 2 or more offenses within 5 years
Can apply after 1 year
Absolute Sobriety Required
Administrative Suspension for Prohibited Alcohol Concentration 
[343.305(7)]
None
None
6 month suspension
[343.304(7)(a)]
N/A
N/A
Can apply immediately
[343.305(8)(d)]

New Legislation Affecting OWI Laws

2015 Wisconsin Act 183 passed as Senate Bill 29 on February 29, 2016. This Act allows for a search warrant to be issued to obtain a blood sample for a civil violation of operating while intoxicated. This law went into effect on March 2, 2016. This means that if a person refuses a chemical test upon an arrest for an OWI 1st, law enforcement can contact the prosecuting agency and seek a search warrant to forcibly obtain a blood sample.

2015 Wisconsin Act 371 passed as Senate Bill 455 on April 25, 2016. This Act goes into effect on January 1, 2017. This Act increases the maximum confinement terms for most felony level OWI offenses. The following chart shows the current penalty and the new penalty:

OWI
Current Penalty
New Penalty
5th
Class H, 6 mos., 6 years max
Class G, 6 mos., 10 years max
6th
Class H, 6 mos., 6 years max
Class G, 6mos., 10 years max
7th
Class G, 3 years IC, 10 yrs max
Class F, 3 years IC, 12.5 years max
8th
Class G, 3 years IC, 10 yrs max
Class F, 3 years IC, 12.5 years max
9th
Class G, 3 years IC, 10 yrs max
Class F, 3 years IC, 12.5 years max
10th
Class F, 4 years IC, 12.5 yrs max
Class E, 4 years IC, 15 years max

Contact an Experienced Criminal Defense Attorney

If you are under criminal investigation for a felony offense or felony drunk driving, if you are considering selling out quickly on a plea bargain with years of probation, or you have been arrested and charged, please call 715-514-5051 or email attorney Michael Cohen right away. Our attorneys stand ready to defend you. He will give you a free but professional "first-impression" analysis of your case and your situation so that you can make the important decisions in preparing your defense. For advice you can trust, contact Michael Cohen today.

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