Law Offices of Jeffrey W. Jensen 111 E. Wisconsin Ave., Suite 1925 Milwaukee, WI 53202-4825
Jeffrey W. Jensen is a criminal defense lawyer in Milwaukee, Wisconsin. He is also a criminal appeals lawyer in Wisconsin.
Common Myths About OWI
The vast majority of people who are stopped for operating under the influence of alcohol are normally law-abiding people who have no idea how to respond. There are a lot of "urban myths" circulating about how to respond. We address some of the most common MYTHS. If you have been arrested for OWI the best course is to consult an experienced criminal defense lawyer. Most lawyers charge no fee for an initial consulation.
1. MYTH: If you've been drinking put a penny in your mouth and it will throw off the breathalyzer/intoxilyzer test. We are unsure how this myth ever got started. However, there is utterly no scientific validity to it. As part of the breathalyzer or intoxilyzer test procedure the officer will check the subject's mouth and will likely find the coin. Then, of course, the prosecutor has the argument to the jury that the defendant knew he was guilty and tried to destroy or conceal evidence.
2. MYTH: Refuse to take the breathalyzer or intoxilyzer test and they won't be able to prove it. We have all seen on television where fictional defendants are arrested and they immediately clamor for their lawyer. There is some truth to the idea that you should ask for a lawyer when you're under arrest; however, the law in Wisconsin is that you have no right to consult an attorney prior to deciding whether to submit to the breathalyzer or intoxilyzer test. If you refuse the test you have virtually guaranteed that you cannot win your case. Firstly, if you are found by a court to have unlawfully refused (and there are almost no defenses) your driver's license will be revoked for a minimum of one year and, if you have prior offenses, it can be much longer. Additionally, if you take the OWI case to trial the court gives the jury an instruction to the effect that they may
"If you refuse the test you have virtually guaranteed that you cannot win your case"
infer the defendant's consciousness of guilt from the fact that he refused the test. Go ahead and take the test. A skilled lawyer is able to point out to the jury the reasons why a test may be unreliable.
3. MYTH: If you are planning to drive after drinking you should drink vodka because the officer cannot smell it. It is true that alcohol is a colorless and odorless substance. It is also true that vodka contains less flavoring (which is what one smells on a person with "alcohol on their breath"). However, there are many people who now find themselves convicted of OWI because they believed this myth. Firstly, probable cause to arrest is based on much more than merely the smell of alcohol on one's breath- especially now that the law has been clarified to make it illegal to drive under the influence of a controlled substance. Therefore, if an officer encounters a person who is driving poorly, who is slurring their words, and whose balance is impaired, the person will be arrested. The best bet is to find a driver who has not been drinking.
4. MYTH: Keep a bottle of liquor in your car with you and, if you get pulled over for OWI, drink as much as you can right in front of the officer. The theory of this myth is that the state will not be able to prove how much of your BAC existed during the time you were driving and how much was as a result of the liquor you chugged after you have stopped driving. Technically, this is true. The state does need to prove what your BAC was at the time of driving. If a person consumes alcohol after he stops driving it obscures the evidence. This is still a profoundly bad idea because such behavior is persuasive circumstantial evidence of guilt and, further you may get charged with obstructing an officer.
__________________________________ Schiro & Zarzynski Personal Injury Attorneys Milwaukee, WI 53203 414.224.0825
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If You Are Arrested:
1. Cooperate with the Officer. If have been driinkg and are stopped by the police while driving your car you should cooperate with the officer. Firstly, one tell-tale sign of intoxication is being argumentative. Secondly, if the officer has to testify during a trial there is a lot of room for "opinion" testimony. You want the officer to have a good opinion of you. Thirdly, there are numerous additional citations that can be issued to subjects who are uncooperative.
2. Submit to the alcohol test. See above.
3. Politely invoke your Fifth Amendment privilege against in-custody interrogation. Persons who are arrested for operating under the influence of alcohol are read a form call the "Alcohol Influence Report." This standard form contains the Miranda Warning (i.e. "you have the right to remain silent . . . ) YOU SHOULD NOT ANSWER THE QUESTIONS ON THE FORM. The questions on the form are written in a confusing way. The form asks, "Are you now under the influence of alcohol" but it does not define "under the influence" as it will be defined to the jury. Some people think that if they have had on beer they are "under the influence" to some extent. The law, however, tells the jury that "not everyone who has consumed an intoxicant is under the influence as that term is used here. What must be proved is that the person consumed enough alcohol to impair their ability to drive safely."
4. As soon as you are able to, call a lawyer who is experienced in defending OWI cases. As mentioned above, most people arrested for OWI are otherwise law-abiding persons. The penalties for OWI, even for a first offense, are substantial. On a second offense the person goes to jail for at least five days and it can be up to six months. For a third offense the minimum is thirty days in jail and can be up to a year. A fifth offense in one's lifetime is a felony and person may be sentenced to prison. Given the serious penalties you should not attempt to defend yourself.
Milwaukee criminal defense attorney Jeffrey W. Jensen, of the Law Offices of Jeffrey W. Jensen, a Milwaukee law firm with offices located at 111 E. Wisconsin Avenue, Suite 1925, Milwaukee, Wisconsin, has represented persons throughout the State of Wisconsin. If you will face felony charges in either state court or in federal court you should call 414.671.9484. Attorney Jensen regularly appears in Milwaukee County (Milwaukee criminal defense lawyer), Waukesha County (Waukesha criminal defense lawyer, Brookfield criminal defense lawyer), Washington County (West Bend and Germantown criminal defense lawyer), Racine County (Racine criminal defense lawyer), Kenosha County (Kenosha criminal defense lawyer), Brown County (Green Bay criminal defense lawyer), Fond du Lac County (Fond du Lac criminal defense lawyer), and Winnebago County (Oshkosh criminal defense lawyer)
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