Enhanced Penalties for OWI 5th and 6th

Wisconsin recently increased the penalty for a 5th or 6th OWI offense. The mandatory minimum sentence used to be 6 months in jail. It has now been increased to a mandatory minimum of 18 months in prison. This new law takes away a judge’s discretion to do what they believe is right in a particular case.

What to Expect When You’re Going to Court

For most people, getting charged with a crime and having to go to court is a very frightening experience.  You may be asking yourself these questions:

  • Will there be a lot of people there?
  • Will I get taken to jail?
  • If I hire a lawyer, can they go to court for me?
  • How should I dress?
  • How long will it take?

Hiring a lawyer can help to alleviate the stress and uncertainty of going to court.  I’m often told after my very first meeting or telephone call with a prospective client that they are feeling a lot more at ease.  A lawyer probably won’t be able to completely erase any anxiety that you may be feeling about going to court.  But, I can at least tell you what to expect when you get there.

A good lawyer should not just know the law and be able to defend you.  A good lawyer should also take the time to help you through this process and be there for you when you have questions or concerns.

Warrantless Blood Draw of Unconscious Driver – Operating While Intoxicated – OWI

Imagine this scenario:  a person is arrested for OWI/DUI.  The officer handcuffs the driver and places them in the back of the police car to drive them to the hospital for a blood draw.  By the time the officer arrives at the hospital, the arrested individual is passed out and unconscious.  The officer then proceeds to read to this unconscious individual a form, which explains to them that they may refuse the blood draw, which would require the officer to get a warrant signed by a Judge before any blood could be drawn.  Of course, the unconscious person does not respond, so the police officer goes forward with a blood draw on this unconscious person without a warrant.

That is exactly what happened to Gerald Mitchell in 2013.  He was charged with an OWI and when his lawyer filed motions to fight the blood draw because a warrant had not be sought by the police officer, our Wisconsin Supreme Court ruled in State vs. Mitchell that the warrantless blood draw was perfectly legal.  The law in Wisconsin states that if you have a drivers license or you are driving on the roadways of Wisconsin you have consented (or consent is implied) to provide a sample of your blood should you be arrested for an OWI.  Therefore, the majority of our Wisconsin Supreme Court has decided that if you become unconscious as a result of consuming alcohol, then you forfeit your right to withdraw consent.  Two of our Supreme Court Justices disagreed, explaining that since blood draws are particularly intrusive, then consent to a blood draw must be more than just implied.

Lifetime Driver’s License Revocation – OWI 4th

As of April of 2018 the State of Wisconsin has dramatically increased the penalty for a 4th offense Operating While Intoxicated conviction and subsequent convictions.  A conviction for OWI 4th offense and above now carries a lifetime driver’s license revocation.  In addition, you may not even apply for an occupational license until 10 years have passed.  For individuals residing in rural areas and smaller cities and towns in Wisconsin, this will make it challenging or even impossible to get to work unless you are within walking or bicycle riding distance.  This new law takes effect in December of 2018.

The question now becomes, will this new law deter repeat OWI offenders?  Or, will this new law simply create more charges or tickets for Operating While Revoked or Operating Without a License?  Will people decide that they still need to be able to drive to work, so they’ll risk getting stopped for driving without a license?

Use of Drones – Privacy Interests

A drone often refers to a small unmanned aerial device which is flown by remote control.  Drones are becoming very popular among the general public as they have become smaller and very affordable.  Drones started out as highly technical devices which just a few years ago could cost thousands of dollars. Nowadays, you can purchase a drone at your local toy store for less than $100.  These drones are often capable to taking very high quality photographs and even high definition videos.  But be careful.  In Wisconsin it is against the law to use a drone with the intent to photograph, record or otherwise observe another individual if that other individual has a reasonable expectation of privacy.  Therefore, if you live in an urban area or if you have neighbors nearby, you should be extremely careful about where you fly your new drone and what kinds of pictures or videos you take.  If your neighbor is sunbathing in their backyard, and if they have reason to believe that your drone is invading their privacy, they could call the police and you could find yourself facing a criminal charge.  Section 942.10 of the Wisconsin Statutes makes it a misdemeanor for anyone to use a drone to photograph, record or observe another person in a place or location where that person has a reasonable expectation of privacy.

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.