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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.