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.

 

Ignition Interlock Devices – What you need to know

In 2010 the OWI/DUI laws in Wisconsin became more strict regarding fines, jail and the requirement of ignition interlock devices (IID).  In Wisconsin the law now states that if you are convicted of an OWI – 1st offense and if your blood/breath alcohol concentration (BAC) is found to be at or above 0.15 then the Court must order that you have an IID installed in any vehicle that you own or operate for a period of 12 months.  If you are convicted of an OWI – 2nd offense or above, then you must have an IID installed no matter what your BAC is and the period must be a minimum of 12 months, but the maximum IID period can be as high as the period of time that your license is revoked for, which could be several year.

An IID is a device which is professionally installed in your vehicle and requires the driver to blow air into the device in order for the vehicle to start.  If a certain amount of alcohol is detected on the driver’s breath (usually more than 0.02 BAC), then the vehicle will not start.  There is usually a monthly fee for this device.

As mentioned earlier, if the Court is required to order the IID for a person convicted of OWI, the IID must be installed in any vehicle that the convicted individual owns or operates.  Often, people own multiple cars and/or spouses will own two or more vehicles with each vehicle titled in each spouses name.  If this is the case, then you would need to have an IID installed in each car.  People also are often required to drive employer owned vehicles as a part of their job.  If that is the case, the employer owned vehicle would need to be equipped with an IID in order for the OWI convicted employee to drive that vehicle.

The IID requirement does not go into effect until a person is actually convicted of the OWI.  However, if that conviction occurs and you are subject to the IID requirement, then you will not be able to get an occupational driver’s license until you first have an IID installed in each vehicle that is titled or registered in your name through the Department of Transportation and the Department of Motor Vehicles.

Finally, if you are convicted of a 2nd offense OWI or above, and if you are ordered to serve a period of time in jail, you may be required to have the IID installed in your vehicle and show proof of that installation to the jail in order for the jail to release you on Huber work release.  However, this can depend on the county in which you are convicted.  Therefore, if you are charged with an OWI, you should contact an experienced OWI attorney right away.

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.

Criminal Defense – Domestic Violence Convictions and Gun Rights

A spat between spouses, an argument between boyfriend and girlfriend, or even a squabble between roommates can sometimes escalate to the point where police are involved. Police involvement in such a dispute, can lead to the arrest of the person whom the police reasonably believe to be the “primary aggressor”. If you are arrested under such circumstances, and are subsequently charged by the District Attorney, then you may be in danger of losing your right to own or possess a firearm. And it is a lifetime ban. This consequence is not the result of any Wisconsin laws or regulations, but is in fact the result of a Federal prohibition which dates back to the Gun Control Act of 1968, with subsequent amendments, particularly a provision which was almost unanimously approved by Congress in 1996 which essentially states that anyone convicted of a misdemeanor crime of domestic violence shall be subject to the gun prohibition.

Particularly, the Federal Government considers a qualifying misdemeanor crime of domestic violence to be any state or federal misdemeanor that “has, as an element, the use or attempted use of physical force, or threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim”. 18 U.S.C. §922.

The law in Wisconsin considers a domestic relationship to be any adult persons who are either married, used to be married to each other, have a child together, or live together or used to live together. In Wisconsin the statutes define domestic abuse as any intentional infliction of physical pain, physical injury or illness; any intentional impairment of physical condition; sexual assault; and any physical act that may cause the other person reasonably to fear imminent engagement in any of the other acts just described. §968.075(1)(a) Wis. Stats. Domestic abuse is not a crime in and of itself in Wisconsin, but is in fact a penalty enhancer of other types of criminal offenses. For example, one cannot be charged with domestic abuse by itself, but a person can be charged with Battery – as a Domestic Abuse Offense, or Disorderly Conduct – as a Domestic Abuse offense, and so on.

As you can see, the Federal law and the State law are quite similar in their definitions of domestic abuse (violence). However, it is important to note that both the Federal and State law require some sort of physical force or threat of physical force. Occasionally, overly zealous law enforcement officers or prosecutors will charge a person criminally with a domestic abuse offense where, in reality, there is no evidence of physical force or threat of physical force. Nevertheless, if you have been charged with a domestic abuse offense it would be in your best interest to hire an experienced and aggressive attorney who can advocate on your behalf right away. In addition, if domestic abuse has not been added on as an enhancer to an underlying criminal charge, but there are in fact allegations of domestic abuse in the charging documents that have been filed with the court, it is still possible for a person to be subject to the Federal gun prohibition, banning that person from ever owning a gun again, and if they do they can be prosecuted in federal court and be sent to federal prison for up to 10 years.

Losing your right to own or possess a firearm is a serious consequence of any criminal charge and many of my clients find that penalty to be more serious than any fines or jail that may be imposed.

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 area of criminal defense and how those charges can impact a person’s employment, freedom, driver’s license, and other areas of a person’s life.

Operating While Intoxicated (OWI) – Driver’s License Suspensions

As most of us know, there are certain consequences to getting convicted of an OWI in Wisconsin.  Those consequences can include the installation of an ignition interlock device on any vehicle that you own or operate, revocation of your driver’s license, hefty fines, and even jail time.  However, did you know that if you get arrested for an OWI your license could get suspended by the Department of Transportation before you even go to court for the OWI charge?  This is called an administrative suspension and it can last up to six months.

Under §343.305(7) of the Wisconsin Statutes the law says that if you submit to chemical testing of your blood, breath or urine after an arrest for OWI, and if the results come back with an alcohol concentration of .08 or higher, your operating privilege will be suspended for 6 months by the Department of Transportation.  However, be careful not to interpret this as a good reason to refuse to participate in blood, breath or urine testing.  Refusing to participate in this testing could place you in violation of Wisconsin’s implied consent laws.  In some instances finding yourself in violation of the implied consent laws by refusing testing can carry more severe consequences for your driver’s license than the OWI itself.  In addition, refusing testing can also result in higher fines and more jail time.

If your blood/breath/urine alcohol results show that you are at or above the legal limit of .08, then the law enforcement agency that arrested you will complete a form called a Notice of Intent to Suspend Operating Privilege and they will mail a copy of this form to you and to the Department of Transportation.  This form will basically put you on notice that your driver’s license will be suspended 30 days from the date on the form.  At the same time you will also receive a form advising you that you have a right to challenge the suspension of your driver’s license.  But to do so, you must complete the forms that you receive from the law enforcement agency by filling out certain information and mailing it back to the Department of Transportation within 10 days, or 13 days if it has been mailed to you.  It is usually best to have an attorney help you with this.

An experienced and aggressive OWI lawyer will almost always challenge this driver’s license suspension for reasons which can best be explained to you by the attorney him/herself.  Therefore, if you have been arrested for an OWI it is in your best interest to talk to an experienced OWI attorney right away.  Do not wait until your court date on the OWI ticket to speak with a lawyer because by then you may have missed out on some important steps in the process of defending yourself against and fighting an OWI charge or citation.

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.

Business Finance – Crowdfunding Can Give Your Next Big Idea a Critical Boost

Ever had a great idea but nowhere to turn for capital to get it off the ground?  Entrepreneurs and startups all across the country frequently face this dilemma.  Some turn to friends and family (or even to more sophisticated “angel investors” if the idea has substantial promise) to provide sorely needed initial capital.  Traditional sources of debt financing such as home equity loans, commercial financing or even microloans can also help, but in some cases the individual may not meet the criteria required or the amount of capital needed is too large or too small, as the case may be.  No matter where the business owner turns, difficulties in getting the critically needed funding have always been a fact of life.

Help may now be more readily available through “crowdfunding” (also called “crowdsourcing”), which continues to grow in popularity.  In crowdfunding, a large number of individuals pool funds (usually through social media or internet “funding portals”) for purposes of providing capital to specific products or ideas.  There are two common types of crowdfunding.  The first is a “donation” model, which provides the funder with designated rewards (ranging from discounts to actual products).  The other type is an “investment” crowdfunding model that provides actual equity ownership in the recipient company.

Although the idea for crowdfunding has been around for years, the impetus for making crowdfunding a reality came with the signing of the Jumpstart Our Business Startups Act (JOBS) by President Obama in April of 2012.  The JOBS Act provided a framework for stimulating funding of smaller and startup businesses and relaxing certain regulatory hurdles faced by these companies.  As part of this process, the JOBS Act directed the U.S. Securities and Exchange Commission (the “SEC”) to develop rules for implementing crowdfunding. In late March of this year, the SEC issued its final rules for a two-tiered crowdfunding structure which will enable companies to sell up to $50 million of securities ($20 million under the lower tier) in a 12-month period, subject to certain eligibility, disclosure and filing requirements.  As a result, crowdfunding is likely to increase in popularity, because it will allow the everyday “non-accredited” investor an opportunity (subject to SEC limits) to invest in new projects.

Crowdfunding sites, such as Kickstarter, Indiegogo, Rockethub and Crowdfunder.com not only provide members of the general public the opportunity to fund business proposals (generally called “projects”) that appeal to their subjective tastes or sense of activism, but also provide venues for  entrepreneurs to submit their business start-up ideas for public backing.  The result of this is that equity funding sources are no longer limited to either personal relationships or a local geographic area.  A unique product or business model can now appeal to potential investors across the country, removing barriers and boundaries to accessing the capital needed to get to market.

Crowdfunding is not for everyone.  The SEC’s new rules place substantial limitations on issuers and investors alike, as well as filing and disclosure requirements similar to those required of other business entities selling securities.  Because the SEC rules (and crowdfunding in general) are so new, expect a substantial “trial and error” period to iron out the kinks in the new funding regime.

If crowdfunding looks like it might be something that fits your needs, you still have a lot of work ahead to get your business idea (and your business) into position to be ready to take advantage of crowdfunding.  There are some important steps and considerations for anyone thinking about crowdfunding:

  • Determine if crowdfunding is right for your business model. Is the business idea, product or solution unique enough to attract crowdfunding?  Are the capital needs of your business appropriate for crowdfunding?
  • Make sure your business is set up properly. Do you have an operating business entity or is this still a dream or a “napkin drawing”?  Are you maintaining corporate formalities and avoiding problems?  Additionally, you will need to either write a solid business plan or review and revise your current plan if you already have one.
  • Consult business, accounting and legal professionals. Depending on the size of the offering, you will need to draft offering and disclosure documents and make the appropriate filings. The securities rules, even for crowdfunding, can be complex.  For instance, you will need to understand the mechanisms and rules for crowdfunding and be able to evaluate for yourself the pros and cons of this type of funding. Your financial records may need closer scrutiny by a CPA, depending on the amount of funding you are seeking.
  • Make sure your intellectual property is protected. Nothing will kill a great business idea like disclosing the underlying, unprotected intellectual property to the public or inviting unwanted competition by putting your model out for public scrutiny.  Got a new design?  Look to patent it.  Got a catchy name for your product or business?  Seek trademark protection.  Investors will also want to know that an idea which they are crowdfunding has a strong IP position.

Like any business venture, there are always risks, both for the investor and the entrepreneur.  Due to the presence of many smaller investors, the individual risk to a single larger investor may be mitigated in the early (and riskiest) stage of the business.  Even with the inherent risks, crowdfunding promises to provide a source of investment capital that was seemingly unimaginable only a few years ago.  It also promises to provide inventive and entrepreneurial individuals with a means to access the broader market and make a public appeal for the success of the “next big idea.”