What strategies do we use to successfully defend drunk driving charges?
At Van Severen Law Office we focus on defending individuals accused of committing drunk driving and criminal offenses. While every case is different, in order to beat an OWI charge in Wisconsin, there are certain common issues we look for. If you’re looking to hire a top DUI attorney in Wisconsin, contact Van Severen Law Office at (414) 270-0202. Moreover, we offer free consultations to potential clients. And upon retaining our firm, we can begin fighting your drunk driving case.
1. I wasn’t driving the vehicle. (Or, I wasn’t operating the vehicle.)
Operating a motor vehicle while under the influence of an intoxicant or other drug is prohibited by section 346.63 of the Wisconsin Statutes. That law makes clear that “No person may drive or operate a vehicle while” any of the following occur:
- The defendant is under the influence of an intoxicant;
- The defendant has a detectable amount of a restricted controlled substance in his blood; or
- The defendant has a prohibited alcohol concentration.
Driving and operating are requirements for this charge to occur. “‘Drive‘ means the exercise of physical control over the speed and direction of a motor vehicle while it is in motion.” Wis. Stat. sec. 346.63(3)(a). “‘Operate‘ means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.” Wis. Stat. sec. 346.63(3)(b).
In short, if you didn’t drive or operate the motor vehicle, you haven’t committed OWI. In more plain terms, you can’t drunk drive unless you’re driving.
Frequently OWI and DUI charges occur after the accused has been involved in a car accident. In one recently incident our drunk driving attorneys worked on, the defendant simply ran out of gas. On another case, a motor vehicle was left running while the driver and occupant were throwing up. With all of these cases, prosecutors must show that the defendant was actually operating the vehicle. Basically, if they can’t show you were driving, they can’t prove the case against you.
2. The cops didn’t have probable cause to stop me.
Police need a reason to stop your vehicle. That reason can be based on probable cause that a crime is occurring, or reasonable suspicion to believe that the individual may be involved in the commission of a crime. Before we get into how those concepts will impact your case, it’s helpful to explain them:
Probable cause vs. reasonable suspicion
Officers may conduct a traffic stop where he has probable cause to believe a traffic violation has occurred. State v. Gaulrapp, 207 Wis.2d 600, 605, 558 N.W.2d 696 (Ct.App. 1996) see also Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (stating that a traffic stop is “reasonable where the police have probable cause to believe” there was a traffic violation, such as “No person shall turn any vehicle … without giving an appropriate signal” and “No person shall drive a vehicle … at a speed greater than is reasonable and prudent under the conditions.”)
Probable cause refers specifically to the “quantum of evidence which would lead a reasonable police officer to believe” that a traffic violation had occurred. Johnson v. State, 75 Wis.2d 344, 348, 249 N.W.2d 593(1977). The evidence of the traffic violation does not need to establish proof beyond a reasonable doubt or even that guilt is more probable than not. Simply put, probable cause requires that “the information lead a reasonable officer to believe that guilt is more than a possibility.” Id. at 348-49, 249 N.W.2d 593. Or, in other words, probable cause exists when the officer has “reasonable grounds to believe that the person is committing or has committed a crime.” Id. at 348, 249 N.W.2d 593.
When an officer lacks probable cause to arrest but has reason to believe an individual may be committing a crime, the officer may stop the individual for questioning. State v. Washington, 120 Wis.2d 654, 660, 358 N.W.2d 304, 207 (Ct. App. 1984); sec. 968.24, Stats.
To justify the reasonableness of such a stop, the government must prove the existence of “specific and articulable facts which, taken together with rational  inferences from those facts, reasonably warrant that intrusion.” Wendricks v. State, 72 Wis.2d 717, 723, 242 N.W.2d 187, 191 (1976), quoting Terry v. Ohio, 392 U.S. 1, 21 (1968). The same standard applies to vehicles. Jones (Hollis) v. State, 70 Wis.2d 62, 68-69, 233 N.W.2d 441, 444-45 (1975). Officers may stop a vehicle if they have an “articulable and reasonable suspicion that … either the vehicle or an occupant is … subject to seizure for violation of law.” Washington, 120 Wis.2d 660, 358 N.W.2d at 307, quoting Delaware v. Prouse, 440 U.S. 648, 663 (1979).
What happens when the cops lack probable cause or reasonable suspicion to stop you?
To summarize, if the cops can’t stop you, they can’t know that you were driving under the influence of an intoxicant. In short, if the stop of your vehicle was illegal, the rest of the evidence against you will likely also be suppressed. Obviously every drunk driving case is different, so every drunk driving case will have a different argument, and resulting conclusion.
3. The cops are lying
We’d all like to believe that police officers consistently tell the truth. Unfortunately, as drunk driving defense attorneys, we’re intimately familiar with the inclination of law enforcement to lie. We’ve encountered lying police regarding the following issues:
- Red, glassy, bloodshot eyes of the driver. One of the frequent signs an individual is intoxicated is that he has red, glassy, and bloodshot eyes. Booking photographs are frequently taken of drivers after being arrested for DUI. Sometimes booking photographs prove the driver did not have red, glassy, or bloodshot eyes.
- The driver was fumbling around with his license. The driver refused to comply with commands of the officer, like rolling down his window. Obviously if police make the defendant appear to be a fumbling, semi-coherent mess, they may have an easier job showing you appear intoxicated. This is why we request any squad/dash cam videos, body cam videos, and other objective media that shows your interaction with police.
- You failed field sobriety tests. This is a big one. Field sobriety tests can be confusing. Rather than explaining field sobriety tests in a manner that the driver understands, certain officers like to simply indicate the driver exhibited certain signs of intoxication. Like the previous point, obtaining video footage from law enforcement officers allows us to contest the lies against you.
Not all lies will render you a dismissal or a not guilty verdict. Sometimes, however, they’ll lead us to potential motions to suppress evidence. In other cases, the lies of law enforcement may be enough to convince a jury that you’re not guilty.
Hire top Wisconsin drunk driving attorneys
The OWI attorneys at Van Severen Law Office specialize in defending individuals facing drunk driving and criminal charges. If you’ve been charged with any criminal, DUI, or OWI charge, contact us for a free consultation. After evaluating your case we can begin building a strategy to successfully defend you and beat your OWI case. Lastly, we answer phone calls 24/7. In short, contact Van Severen Law Office at (414) 270-0202 now.