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OWI 4th Offense felonies and Prohibited Alcohol Concentration

As of January 1, 2017 an Operating While Intoxicated – 4th Offense in Wisconsin is now a felony.  Prior to this change in the OWI laws, an OWI – 4th was only a felony if your previous OWI occurred fewer than 5 years prior.  Otherwise it was still a misdemeanor.  However, the state legislature decided to make this drastic change in response to public outcry over repeat OWI offenders.

Another caveat that individuals with OWI convictions should be aware of is that after a person is convicted of three OWI offenses, their prohibited alcohol concentration decreases.  For most drivers, the prohibited alcohol concentration is 0.08.  In other words, you may not drive if your blood alcohol concentration is 0.08 or higher.  However, if you have three or more convictions for OWI on your driving record, your prohibited alcohol concentration is 0.02.  Therefore, if your blood alcohol concentration is 0.02 or higher you can be charged with an OWI.  And at that point, since you will likely already have three prior OWI conviction, you will be facing a felony charge.  A prohibited alcohol concentration of 0.02 is so low that, depending on the type of beer you’re drinking, you could be at or above a 0.02 after just one beer.

If you find yourself charged with an OWI, contact Attorney Todd Simon.  I am an experienced OWI lawyer and I would be happy to talk to you.

Aiding a Drug Overdose Victim – Immunity to Charges

The Wisconsin Legislature has recognized the growing problem of deaths caused by drug overdoses in our State.  Heroin, in particular, has become an epidemic in recent years and heroin overdoses have risen by over 500% since 2005.

Recognizing that this is becoming a public health concern, the State Legislature recently enacted a law to try to help those who overdose.  §961.443 of the Wisconsin Statutes is entitled:  Immunity from criminal prosecution; possession.  Basically the law says that if you dial 911 for someone who is overdosing, or bring that person to a hospital, fire station, or other health facility, the person aiding an overdose victim cannot be prosecuted if they (the aider) themselves are found to be in possession of drugs or drug paraphernalia.  The exact language of the statute reads as follows:

An aider is immune from prosecution under s. 961.573 for possession of drug paraphernalia, under s. 961.41(3g) for the possession of a controlled substance or controlled substance analog, and under s. 961.69(2) for possession of a masking agent under the circumstances surrounding or leading to his or her commission of an act described in sub. (1).

This is a smart approach to the overdose epidemic.  Unfortunately, not enough people know about the law and heroin overdose deaths are not dropping.  This may be due to a lack of understanding this new law.  It also may be the result of heroin’s continued growth in popularity.

Landlords can Evict for Criminal Activities of their Tenants

The year 2016 has brought about some changes to Wisconsin’s Landlord – Tenant statutes, particularly as they relate to a landlord’s right to evict a tenant who engages in criminal activity.

Act 176 provides a way for a landlord to protect his/her property from a tenant who commits a crime or is involved in a drug-related crime.  Prior to this Act, a landlord could evict a tenant by using something called a “right to cure” notice.  However, oftentimes before a landlord was able to get the tenant served with this notice, the tenant would cure, or fix, the problem.  This new law will allow a landlord to terminate the tenancy at his/her discretion.

In addition, this new law does not just include tenants committing crimes.  It can also include guests who are visiting or staying with the tenant.  For example, if you have a friend over to your apartment for a visit and this guest is caught selling drugs to someone in your apartment, your landlord could evict you.

If you have been charged with a crime, give us a call, we can help!  And be aware that if you live in an apartment, your landlord could now try to evict you for criminal activity.  If this happens to you, give us a call.  We can refer you to a good landlord-tenant lawyer.

Domestic Violence and Gun Rights – Update

On June 27, 2016 the Supreme Court of the United States upheld a gun ban for those convicted of a felony or misdemeanor domestic violence offenses in a case entitled Voisine vs. United States. Federal law makes it illegal for anyone with a criminal domestic violence conviction to own a firearm.

The two defendants, who reside in Maine, presented separate arguments to the Supreme Court. One argued that only a conviction for an intentional act of domestic violence should count for the federal gun prohibition to take effect. The other defendant argued that the ban violates their constitutional right to bear arms under the Second Amendment to the United States Constitution. The Supreme Court rejected both arguments.

Tougher OWI Penalties Enacted

Governor Scott Walker recently signed a bill that will now make a 4th offense Operating a Motor Vehicle While Intoxicated (OWI) offense in Wisconsin a felony offense.  Until the signing of this bill, an OWI – 4th offense only became a felony if it occurred within 5 years of your previous offense.  However, that will no longer be the case and in the future any 4th offense OWI will be charged as a felony.  A felony conviction means possibly years in prison, the loss of an individual’s right to vote, and the right to own or possess firearms, even for personal protection.  Included in that bill was legislation that will also increase the penalties for an OWI – 5th offense and above.

What this all means for Wisconsin drivers is that the legislature is getting more strict when it comes to our State’s drunk driving laws and how individuals who are convicted of Operating While Intoxicated are punished.

Our law firm will continue to monitor lobbying movements and the legislature regarding any future proposals for enhanced and tougher drunk driving penalties.

What You Need to Know about Expungement

The expungement law in Wisconsin refers to a person’s criminal record being “wiped clean”.  This law is controlled by §973.015 of the Wisconsin Statutes.  The law says that if a person is under the age of 25 at the time that they commit the crime, and if the person is convicted of a crime that qualifies for expungement, then the defendant may make a request at the time of sentencing that their criminal record be expunged upon the completion of their sentence.

As of January of 2016, criminal offenses which qualify for expungement are those offenses for which the maximum penalty is 6 years of imprisonment or less, except for Operating While Intoxicated (OWI) and OWI related offenses.  In addition, in order for a Judge to grant expungement, the Judge must make a finding that expungement will benefit the defendant and that society will not be harmed by expunging the defendant’s record.

Many people do not understand the full meaning and effect that expungement has when granted by the Judge.  Expungement does not mean that the conviction never occurred or is taken away.  Expungement under this Wisconsin Statute simply means that the record of conviction is erased from court records.  However, the criminal conviction may still show up on certain criminal background checks.  For instance, if you are convicted of a felony and have that felony expunged, that conviction will still show up on a background check through the Department of Justice if you are applying for a conceal and carry permit or if you are trying to purchase a firearm.  Which means that even with an expunged felony, you are not allowed to own or possess a firearm.

However, expungement can still be a useful tool to help young people who have made a mistake which resulted in a criminal conviction.  Many employers, volunteer organizations, neighbors, friends, and family members check the Wisconsin Circuit Court Access Program (CCAP) to look at people’s background.  Expungement will erase a person’s record from CCAP which can help people to obtain good jobs and avoid embarrassment.

Domestic Violence / Abuse – When Arrest is Required by Law

Often I get people in my office who don’t understand why the police showed up at their house and arrested them simply based on what another person said, without any unbiased witnesses.  I also hear wives and girlfriends of my clients who tell me that they called the police on their significant other just to “scare them”, or to help calm a situation down, and that they didn’t want the police to actually make an arrest.

The Wisconsin Statute that deals with making an arrest and taking someone to jail when there is an alleged domestic violence incident is §968.075(2).  This law says that a law enforcement officer has to arrest and take into custody a person if the officer has reasonable grounds to believe that the person committed a crime that constitutes domestic abuse, and if the officer has a reasonable basis to believe that continuing domestic abuse against the alleged victim is likely, or there is evidence of physical injury to the alleged victim, or the suspect is likely the primary aggressor.

Also, if both of the parties had a hand in what occurred.  For example, husband and wife get into a fight and both parties were shoving or hitting each other.  In Wisconsin, according to §968.075(2)(am), Wis. Stats., police officers have been told that it is only appropriate to arrest the person who they reasonably believe to be the predominant aggressor, and not both parties.

Trying to figure out who the predominant aggressor is will never be an exact science for police officers.  Some things that officers are supposed to consider when attempting to identify the primary aggressor are:

  • Any history of domestic violence or abuse between the parties
  • Witness statements
  • Relative degree of injury inflicted on the parties
  • Extent to which each person appears to fear the other party
  • Whether there were any threats of future harm toward the other party or a family/household member
  • Whether either party acted in self-defense

If you or a loved one has been arrested for a domestic violence or abuse related crime, you should call an experienced attorney right away.  There may be a no-contact order in place, even after the arrested person has been released from jail.  An experienced attorney can help the parties to get that no-contact order dropped if the parties are interested in doing so.

Operating While Intoxicated – Tougher Penalties on the Way?

On January 20, 2016 the Wisconsin State Senate voted on and passed a bill that would impose tougher laws on repeater OWI offenders.  As of January of 2016, a Fourth Offense OWI is a misdemeanor and only becomes a felony if your previous OWI conviction occurred within the past 5 years.  However, the proposed bill would make any Fourth Offense OWI a felony.  The proposed bill would also raise the maximum sentence for an OWI conviction in Fifth offenses and any OWI convictions higher than a Fifth.

There has also been talk in the legislature and among certain groups and organizations to make a First Offense OWI a criminal offense.  As of now, an OWI – 1st offense is considered a civil action, meaning it is non-criminal and results in no criminal record and therefore the only penalty one faces is a fine and loss of driver’s license.  No jail can be imposed on an OWI – 1st offense unless there is a child in the car at the time of the offense or someone is injured in an accident which resulted from the offense of operating while intoxicated.

Our law firm will continue to monitor any action taken by our Legislators regarding changes in the laws and penalties for Operating While Intoxicated Offenses.

Wisconsin Supreme Court – No Warrant Needed for Apartment Garage

On January 15, 2016 our Wisconsin Supreme Court decided that police do not need to obtain a warrant when dealing with a person who is in the shared underground garage of their apartment building.

The court case dealt with a man who was driving home from a Milwaukee Brewers baseball game.  An off-duty police officer, who was driving his own private vehicle and was not in a police uniform, noticed a driver in front of him who was driving erratically.  The officer called police and then continued to follow the erratic driver to an apartment building.  The driver drove down into his underground garage and the garage door began to close behind him.  The officer then pulled his vehicle into the garage and stopped under the garage door, preventing the door from closing.  An on-duty officer then arrived and approached the driver in his garage.  After making contact with the driver, and after the driver refused to participate in field sobriety tests, he was then arrested for Operating While Intoxicated (OWI).

The Fourth Amendment to the United States Constitution guarantees all of us the right to be free from unreasonable searches and seizures and requires law enforcement to obtain a warrant prior to any searches and seizures.  There are several exceptions to this warrant requirement.  However, in the past most courts have been steadfast in their determination that when dealing with someone who is in their home, police must get a warrant before they can take certain actions against that person.  In addition, court have defined a person’s home to include certain places outside of their home that they call “curtilage”, like yards, front porches, and garages.

On January 15, 2016 the Wisconsin Supreme Court took away the privacy interests of apartment dwellers by determining that there is no expectation of privacy in these shared underground garages and therefore police do not need a warrant under these types of circumstances.

Operating While Intoxicated / OWI – Sentencing Guidelines

The Wisconsin State Legislature, through the enactment of §346.65(2m) of the Wisconsin Statutes, has directed each Judicial District in Wisconsin to enact certain guidelines to determine what an appropriate sentence is for a person convicted of Operating While Intoxicated in our State.  This means that all of the courts in our State are supposed to set up guidelines for sentencing a person who is convicted of an OWI offense.

The guidelines for your district can usually be found by doing an internet search for OWI guidelines in the county in which you reside.  If you are charged with a first offense OWI and it is being handled by a city or municipal court, the guidelines will likely be similar to your county guidelines.

The guidelines will almost always use certain mitigating and aggravating factors, along with your blood/breath alcohol concentration to determine what an appropriate fine, driver’s license revocation, and length of jail is appropriate.  Another factor, of course, is what numbered offense you are charged with (eg. OWI – 1st, 2nd, 3rd, etc.).  Mitigating factors can include whether or not you have an otherwise good driving record, were cooperative with law enforcement during the arrest process, the age of any prior convictions, and others as defined by your specific county’s guidelines.  Aggravating factors can include whether you were driving without a license, if you had a recent previous OWI conviction, were uncooperative with law enforcement during the arrest process and so on.

If you have been charged with drunk driving you should contact an experienced OWI lawyer right away to go over your options and plan a strategy for your defense.  An experienced OWI attorney can also help you prepare for the worst and understand what to expect in the event that you are found guilty and convicted.

You must not rely on the information on this website as an alternative to legal advice from an attorney or other professional legal service provider.  If you have any specific questions about any legal matter you should consult you attorney or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website. 

The law firm of Simon & Feldhausen, LLC is a Green Bay law office made up of Green Bay attorneys/lawyers who are experienced in the areas of OWI/DUI/DWI and how those charges can impact a person’s employment, freedom, driver’s license, and other areas of a person’s life.