According to the La Crosse Tribune, Attorneys for accused double-homicide defendant, Jeffrey Lepsch, are moving for dismissal or, in the alternative, suppression of video-recorded surveillance evidence reportedly depicting Lepsch inside the crime scene at May's Photo between 1:53 and 2:58 p.m. on the date of the gruesome murders.  Apparently, missing is surveillance footage after 3:30 p.m.  This footage is critical to Lepsch because a witness reportedly saw another person in the store behind the counter between 4:15 to 4:30 p.m.  His attorneys argue this deprives Lepsch of Due Process.  District Attorney Tim Gruenke opposes and is preparing a response to the motion.  Legally, the term for losing, or destroying, evidence is termed 'spoliation.'

This is not the only recent case of the La Crosse Police Department failing to preserve digital evidence.  In a recent high-profile case defended by this attorney (client agrees to my describing these events), the La Crosse Police Department failed to preserve a supposed interview of a confidential informant ("CI") who allegedly blamed my client for being involved in an armed robbery pulled off by the so-called "Get Money Boys".  Not only that, the police temporarily lost the defendant's recorded statement and admitted losing the recorded statement of a co-defendant.  Furthermore, of the several police vehicles that responded to the crime scene with their video cameras running, not one had the audio component on to record the conversations with the victims at the scene.  The microphone can be easily turned on by the officer.

Charged with Armed Robbery, my client ended up pleading no contest to two misdemeanors relative to the alleged home invasion, getting probation and a short term on electronic monitoring.  The Assistant District Attorney ("ADA") prosecuting that case blamed the very good plea deal on the destruction of the recorded CI interview.  In my opinion, the outcome of that case was justified by the overt lack of evidence against my client.   Nonetheless, I agree with the ADA that the situation created not just an embarrassing situation for the police and DA's office, but also an opportunity for suppression and/or dismissal, or at least, a very good opportunity to create doubt during a jury trial. 

The fact is, over the last several years, I and my colleagues have experienced numerous occasions of the La Crosse Police Department, the Onalaska Police Department, and other agencies, overtly failing to preserve video and/or audio-recorded evidence.  It usually happens because police officers fail to take the simple steps necessary to capture or preserve the evidence, including, failing to activate the video in the squad car, turning on the video but not the microphone, failing to point the camera in the direction of the event, or failing to properly download the audio/video files.  When the video cameras do work, it often seems very selective.  When they want the camera to work, it usually works.  

The La Crosse and Onalaska Police Departments have spent a ton of money to equip the patrol cars and officers with the equipment they need to record these events.  To be sure, this can be a very important way to protect the police.  In fact, the policies and procedures adopted by the La Crosse and Onalaska Police Departments have specific provisions requiring the officers to maintain and use the equipment to capture and preserve all pertinent audio-video evidence.  These provisions makes the officer personally responsible for doing so.  In short, there is no excuse for failing to capture and preserve this evidence, but it happens ALL THE TIME.   

Seeing is believing.   Video can be the most effective evidence in a case.  Indeed, I have tried cases almost solely based on the failure of police to capture or preserve audio-video evidence they maintain is harmful to my clients, including field sobriety tests and admissions supposedly made by defendants.  Why should the police be allowed to convict someone based on evidence they could have easily--and were supposed to--record, but failed to for no good reason?   Of course, when questioned about it at trial, the offending officer conveniently says, "'Mr. Defendant' is lucky I didn't record it, because you would see that it is exactly the way I say it was. "  No officer should be able to get away with that. 

As an OWI/criminal defense attorney, I just want to see what really happened and/or was said, for better or worse.  So, La Crosse and Onalaska police (and others): Shape up!   

The Supreme Court of Wisconsin has agreed to review  State v. Nicolas Subdiaz-Osorio, 2010AP3016-CR 
wherein the defendant was captured by police using cell phone location information they obtained without a warrant from his cell phone service provider. 

The Fourth Amendment to the United States Constitution and Article 1, section 11 of the Wisconsin Constitution generally prohibit warrantless searches and seizures by the government.  However, the courts have held that warrants are required only for situations where the person has a 'legitimate' or 'reasonable' 'expectation of privacy' in the thing or place searched (Katz v. U.S.).  Complicating matters, the courts have developed a litany of exceptions to the warrant requirement.

The question of whether a person has such an expectation of privacy has been examined in cases ranging from conversations in a phone booth, to searches of ice fishing shanties, to police rummaging through trash cans left at the curbside.  In the case of cell phone records, the State of Wisconsin will likely argue that a person has no legitimate expectation of privacy to the their cell phone location information, which is information they (usually) unwittingly provide to their cell phone company without the government being involved.  This is exactly what the United States has already argued in similar cases on the subject, for example, In re Applications of the United States of America for Historical Cell-Site Data.  The Sixth Circuit, in U.S. v. Skinner, ruled last year that there is no legitimate expectation of privacy to cell phone location information.   

No matter how the federal courts come out on this issue, the Supreme Court of Wisconsin is empowered to interpret the Wisconsin Constitution in a manner the affords more protection to the citizens of Wisconsin, and it should do in this case.  This conduct is intrusive.  As one federal judge has pointed out, "A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups—and not just one such fact about a person, but all such facts."

There are certainly competing interests at stake.  We all want criminals apprehended (unless you are one).  However, what are we willing to hand over to the government in exchange for our security?  What good is security if we have no freedom?  If I were King, the government would have to have to convince a judge that there is probable cause of criminal behavior before having access to this kind of information.  But since I am not, I will be watching this case closely.  Stay tuned.

Charles E. Spangler, 44, was arrested by the Wisconsin State Highway Patrol after reportedly striking a guardrail on Highway 12 near Millston.  According to reports, Spangler has prior OWI convictions in 1994, 1995, 1997, 1999, 2000, 2006, and 2011.  For the most recent, he was sentenced to participate in the Jackson County Treatment Court program in addition to five years probation.

This is one guy who needs a lawyer.  Mr. Spangler's probation officer has no doubt placed a probation hold on him that will keep him in jail until the issue of his probation is resolved.  If he is revoked from probation, then he faces sentencing on his 2011 case in addition to whatever bodes for him relative to his new charges.  Making things even harsher, OWI 7th and greater offenses carry increased mandatory prison sentences so that, if a person is sentenced to serve prison, the initial period of confinement must be no less that 3 years, pursuant to Wis. Stat. § 346.65(2)(am)6.  

A lawyer in this case needs to act very quickly.  The police reports and video-recorded evidence should be obtained right away to determine whether some issue can be raised for suppression of evidence.  At the same time, the lawyer would want to get all documentation relative to the prior convictions to determine whether any of those can be taken out of the equation. 

Yes!  Especially with OWI/PAC 4th or greater, where the prohibited alcohol concentration is a mere .02, keeping prior OWI/PAC convictions from being counted is one of the best things a lawyer can do for an OWI defendant.  This area of the law is tricky, but this firm has helped numerous people reduce their charges by motions to strike prior offenses, including lowering a OWI 5th to OWI 3rd, and OWI 7th to a 6th, thereby avoiding the mandatory 3-year imprisonment of Wis. Stat. § 346.65(2)(am) 6.  Spangler, and anyone charged with repeat OWI, needs an attorney who knows this area of law well and can get these prior offenses knocked out of the picture.   If that is not possible, and the new case cannot be otherwise defeated, then careful legal strategy on how to present this case for sentencing is paramount.  

This is one of those crime stories that seems only to come out of Wisconsin:  

Drunk (BAC .12) and high on heroin, Scott Mehtala, 23, a self-professed "vampire", assaulted a guitarist named Niki Slimp (stage name, I presume) from the band 'American Fangs' on Tuesday, May 14th, near the La Crosse Center, where the band played.  The assault reportedly occurred after Slimp confronted Mehtala for throwing a barricade through a window of the band's tour bus.   According to the La Crosse Tribune, Slimp received a chipped tooth (I sure hope it was not a fang) and needed stitches as a result of the assault.  Mehtala tried to escape but was tackled by some other guitarist.  

Mehtala claimed he was jumped by vampires who were members of the 'Hollywood Undead', another band billed along American Fangs.  He reportedly told police did not feel safe but was protected by his super-human hearing.    
Also according to the La Crosse Tribune, Mehtala also "ripped a side mirror from a car parked on Main Street and gave it to a bartender claiming vampires had forced him to damage the car" (I thought HE was a vampire).

Just another night in the lives of vampires?  It's a good thing they're immortal.  

In real life, according to CCAP Mehtala has been charged by the La Crosse District Attorney's office with Battery (Class A Misd.), Criminal Damage to Property (Class A Misd.) and Disorderly Conduct (Class B Misd.), with total possible punishment of $21,000 and 21 months jail.   Mehtala had no prior criminal history on CCAP.  Assuming that is his only brush with the law, I would expect that he eventually be proposed a disposition such as a diversion agreement or, potentially, amendment to an ordinance violation, either of which could leave him without a criminal conviction.  No blood-sucking immortal should be saddled with a criminal history.  
 

Nicole DeClute, 27, was convicted yesterday in the La Crosse County Circuit Court by pleading guilty to one count of Armed Robbery, a Class C Felony, punishable by a maximum fine of $100,000 and 40 years prison.  Ten other crimes in five other cases where dismissed and read-in for sentencing.  According to the La Crosse Tribune, she has been approved for admission to the La Crosse County Drug Treatment Court.  She awaits sentencing before another judge because Judge Scott Horne recused himself after taking her plea, citing his conversation with the victim while a customer at the dry cleaner.

A review of DeClute's record on CCAP shows that she has pretty much been a one-woman crime spree since 2003.  So, many will no doubt scream and shout when she is given probation with drug court as a condition (and I do think that is highly likely).  However, punishment and deterrence are not the only goals of a sentence; and for serious drug users, prison rarely works to steer them on the right track. 

Look at the circumstances of Ms. DeClute's case.  She apparently went into Hangers and Hems while her dad was gassing up the car next door.  She pulled out an Airsoft pistol and robbed them of $200.  This looks like someone pretty desperate for quick cash for a fix.  Indeed, much of the rest of her criminal history, thefts, forgeries, etc., also tell the story of someone committing crimes for money to buy drugs.  This pattern will likely only end if she gets real help and support for her drug addiction.  Regrettably, most people can't afford that, and for better or worse, the drug court will put her in that environment. 

The La Crosse County judges know that drug court works far better than prison to end the cycle of drugs and crime, so they bite the bullet and choose results over punishment and deterrence.  Read an article wherein the La Crosse County judges publically support the drug court against the La Crosse Police Chief's public call for harsher sentencing. 

When a person is sentenced to a La Crosse County Drug Court disposition, their sentence is usually withheld and they are placed on probation.  Drug court is made a condition of the probation.  That means they can be sentenced again if they are revoked from drug court and/or probation.  The other alternative is sentencing them now, say to five years prison, but then staying the sentence until the person completes probation/drug court.  If they are revoked from and/or drug court, they will serve that prison sentence.  Either way, the person holds the keys to the prison in their own hands. 

If Ms. DeClute is given drug court, then she will pretty much be turning herself over to the drug court team and the drug court judge.  Her probation conditions will probably include more time in the La Crosse County Jail.  The team will decide when she will get out on electronic monitoring, which is likely how she will serve the remaining portion of her jail sentence--if she has no violations.  However, the team will make sure there is plenty of jail time left available in case she fails to play by their rules.

One of the first rules of drug court is "don't use", and Ms. DeClute will be closely monitored in that regard.  If she does use, she'll get caught.  She probably be held in jail until the team and judge decide she is ready for another chance.  If she continues to use, she'll be revoked, and will probably be sentenced to prison.  It's up to her.  If she succeeds, the savings to the tax payers--not to mention her otherwise future victims--will be enormous. 

The National Transportation Safety Board (NTSB) is now recommending that the states lower the legal BAC limits for impaired driving offense to .05!  According to the Board, this is justified by the 10,000 people killed, and 170,000 injured, in "alcohol-related" accidents. 

Well, I knew this was coming, but I actually thought the new recommended level might be .04, which is what NHTSA has been asserting for years is the threshold for material impairment. 

At this time, there is only a "recommendation" for a .05 BAC limit.  However, as we saw with the push to lower to .08., the federal government is not afraid to drive its policies through by wielding its "spending power."  The federal government can require numerous things in the states' traffic laws if the states want full access to highway funds.
Eventually, the states have no choice but to come around.  In the case of the .08 limit, Minnesota was the last state standing on its .10 limit; but that changed in 2005, far too late for some people.  

The NTSB claims that 1,000 lives per year can be saved with a .05 BAC limit.  It also stated that other measures could be explored and implemented to reduce traffic death rates.

In my practice, I have seen OWI/DUI/DWI enforcement become more and more emphasized.  That is obviously not a bad thing.  However, at the same time, I have seen overt speeding and out-and-out reckless driving receive far less emphasis.  My experience is that most people are cited for reckless driving, running red lights, or similar offenses,
after they are involved in an accident.  The fact is, there is no "Mothers Against Speeders" or "Mothers Against Reckless Driving" behind the debate, at least none we've heard of.

As I write this, cars are boldly whizzing past my location in Onalaska at speeds easily approaching 45 m.p.h. in a 25 m.p.h.  zone.  Is this not dangerous and potentially deadly driving conduct?  However, almost nothing is being done to curtail it, and someone will die.   And how many other crimes will be committed while police are at the hospital getting blood drawn from drivers PBT'd between .05 and .08?  I realize that OWI/DUI/DWI is unpopular, and for good reasons, but why should other, equally-dangerous conduct get a pass?

There are limited resources available for law enforcement.  I believe that a thorough examination should be undertaken regarding the best use of those limited resources to promote public safety before lowering the legal BAC limit to .05.   

The following are the opinions of the author:

 "I see Avvo as the worst player in what has become a never-ending and, ultimately demeaning, arms race of attorney rating manipulation, far worse than 'Superlawyer', and that's saying something."

I can't remember when I first stumbled onto Avvo.  But I remember looking myself up and seeing my so-called Avvo rating.  I compared other attorneys.  I strongly disagreed with the ratings.  I quickly emailed Avvo.  The shorthand summary:  "Take me off Avvo.  You can't post my name and apply some BS rating to me."  Reply:  "Yes we can, and we will".  Response:  "Take me off your website or I'll sue" ( I am an attorney, after all).  Reply:  "Go ahead.  We are Avvo.  We are providing a great public service with our great website.  You will be on Avvo, like every other attorney."  

[update:  I recently had much of my profile information removed from AVVO.  This happened after I told one of their salespeople that I wanted to be removed from their call list (they frequently called bugging me about advertising with them).  I added that I disagreed with their business plan.   I'm not sure if that was the reason, but the timing is suspect.  I am still listed on AVVO, and I am still assigned a BS rating, but my picture and other biographical info was deleted.]  

The Avvo catch:  Avvo forces attorneys to participate in its site.  Avvo does not require attorneys to actively participate, but there is no way to opt out completely.  Avvo then rewards those who do participate by making them look better, which makes those who do not participate look comparatively worse.  Attorneys don't like looking comparatively worse.  Hence, Avvo forces participation from many attorneys who seek to level the playing field, which in turn, can lead to some overall crappy results.   
 
Like many other attorneys, I disliked the Avvo concept from the get go, and I refused to play Avvo's game.  Unfortunately, I eventually saw that many other attorneys in this area were playing Avvo's game.  They were claiming their profiles; filling in all their information; posting their picture; posting that all-important link to their website; answering questions posted by the public; and--worst of all-- getting their so-called "peer endorsements" (see part 1 of this series), all of which raised their Avvo rating above mine. 

I can't remember exactly, but I think this was just after I moved from my former law firm to my own law office in 2008.  I worried about losing potential business to attorneys who were driving up their Avvo ratings.  In a moment of weakness, I claimed my profile, uploaded a picture, and filled in my biographical information.  Thankfully, I never went so far as to solicit a single peer endorsement from other attorneys.  However, I did sign up to start answering questions posted by people seeking information.  It  wasn't long before I became so frustrated (disgusted, is a better word) with this process and left Avvo (I stopped actively participating.  Avvo won't let me leave, remember?).
    
What I did not know when I signed up was that Avvo created a race to answer questions by rewarding speed over content, awarding many more contribution credits to the first three, or first hour, responders.  Also, Avvo doesn't penalize bad, perfunctory and/or useless responses.  The result, as least as I see it, was many attorneys simply trying to answer the most questions as quickly as possible, in order to boost their "contribution level" and overall stature on Avvo.  Imagine a classroom where the students are rewarded for shouting the answer first, even if they give the wrong or incomplete answer.   

Here's the way it works.  When you agree to answer questions on Avvo, you get an email alerting you that a question has been posted in your selected practice areas.  You soon realize that, even when you respond very quickly, often, a number of attorneys have already posted responses.  Frequently, it is attorneys who do not even practice in the state where the question originated, and often nowhere near it.  So, a question about a Wisconsin or Minnesota OWI/DWI could have responses from attorneys in California, Arizona, New York, etc.  If you are too late, you do not fetch the points needed to increase your "contribution level". 

This is not exactly the type of system that promotes well-reasoned (let alone researched) responses to someone's important legal question.  In fact, more than once, while attempting to write a meaningful response, some other attorney posted a lousy response and beat me out.  Those attorney were awarded 10 "contribution points" by being one of the first three posts.  
 
Because Avvo creates a race to answer questions--and for some attorneys this means, many, many, many questions as quickly as possible--many of the responses I read were (1) ill-informed or incorrect, often preceded by the caveat, "I don't practice in your state, so. . ."; (2) redundant, often to the effect of, "I agree with the above writer . . ." (Yes, you get points for agreeing);  and/or (3) simply unhelpful, such as, "You should hire/speak with an attorney." 

In fact, "You should hire an attorney" is easily the most repeated phrase in the Avvo attorney responses.  Why?  It is almost always the right  and responsible response to someone seeking guidance on a legal issue.  

The fact is, life--and the way life interacts with the law--is almost always way too complicated to be addressed in the single question, single answer format of Avvo, or any other similar online "ask an attorney" site.  There usually are too many variable for this to be effective.  However, that is probably not what the average person seeking answers on Avvo wants to hear.  They are there because they want to avoid hiring an attorney.  These limitations can lead to a lot of frustration with attorneys, which is not necessarily good for the overall image of the profession.    
 
To Avvo's credit, it does give incentives to attorneys who write the most helpful answers to posted questions, as judged by the person asking the question.  And I must admit, I have read some good answers to questions posted by the public.  Overall, however, the get-as-many-points-as-you-can system Avvo has created has reduced many attorneys to groveling "Pac-Men" who run around hastily trying to gobble up as many points as they can to improve their stature on Avvo.  

If you ask the most actively-participating lawyers why they do Avvo, they will probably serve up some canned response about helping people and serving justice.  But would they truly be doing this if there were no "points" being awarded, no perceived edge being attained over the competition?  I see Avvo as the worst player in what has become a never-ending and, ultimately demeaning, cold war of attorney rating manipulation, far worse than "Superlawyer", and that's saying something. 

My advice: Call a lawyer in your area who has a practice in the area of law you are dealing with.  At least then there is some opportunity for back and forth discussion.  Depending on the area of law, many will speak to you for free.  If it turns out that you decide to hire an attorney, then so be it.  This is what most of the attorneys on Avvo are going to tell you to do anyhow.

The following are the opinions of the author:

"And you thought a prerequisite to being a lawyer was being smart enough to avoid stepping right into a steaming pile of circular reasoning. . . ."

If you have looked for an attorney online, then you probably ran across Avvo.  Avvo is a website that supposedly rates attorneys and allows you to post questions for a pool of participating attorneys to answer, which answers usually end with words to the effect of, "You need to hire an attorney."  The question and answer part of it, I learned, is also badly flawed, but that is the subject for a later post.  But for right now, if you are thinking about using Avvo's so-called
attorney rating to decide which lawyer to hire for your important case, then think again.
 
Some attorneys post their Avvo rating on their website profile to brag about themselves in hopes of attracting (or, as you will read, maybe fooling) clients.  The shame is, some of those attorneys deserve to brag, and some don't, and because of Avvo's faulty rating system, you may never know which is which until it is too late. 

If you go to the AVVO website and look me up, you will see that I am rated as "Good."  Funny thing is, I used to have a higher rating, and nothing changed, except I got more experienced and better as an attorney.  Make sense?  It shouldn't.  That is why in almost every field in my Avvo profile, you will read, "Avvo Sucks! (In my opinion)".  Knowing how it works, I refuse to play the Avvo game, but no attorney, including me, can opt out of their dumb website.

Just today, I went to Avvo and looked up a former law partner of mine (whose name I will keep secret to protect the innocent).  This guy is a fabulous criminal and civil trial lawyer with more than 35 years experience, and AV rated by Martindale Hubbell for many, many years.  However, Avvo had him rated as "Good," only one step up from their lowest favorable rating, "Average."  I can personally take you to the profiles of numerous other attorneys who, in my opinion, have far less experience and far less talent, but who have been rated "Very Good", "Excellent", and even "Superb".  How can that be, you ask?  Simple: The so-called "peer endorsement" component of Avvo is a breeze to manipulate. 

"Then why don't you manipulate it"?, you may ask?  Number one, I am not a kiss ass, and neither is my former partner; and number two, that would be completely dishonest, not to mention a complete disservice to people who are looking for honest and accurate information when seeking an attorney.  

If I put my "Avvo rating" above my integrity, as many attorneys-- but certainly not all--have done, then I could easily, and almost instantly boost my Avvo rating.  All I would need to do is look up some of my law school buddies and get them to agree to give each other good peer endorsements.  Hopefully, they would not agree to that, right?  Well, take a look at some higher-ranking profiles on Avvo, and then look at their peer endorsements.  You will often find lawyers from different states, sometimes even different regions of the Country, giving ringing endorsements to a lawyer in your city.  You may even see that the attorney who received the endorsement has reciprocated by giving a sterling endorsement back.  Wow:  I'm sure nothing is going on there.
 
Even more manipulative is the prospect of lawyers within the same community, but with differing practice areas, reciprocating with good peer endorsements in order to give each other a leg up on the competition by artificially boosting their Avvo ratings.  In fact, some peer endorsements are not even dishonest, because they identify themselves as a "friend" or former coworker of the attorney.  Avvo still sees it as a favorable endorsement.  Of course, the other possibility is the, "You get me an endorsement, and I'll get you one", to avoid the obvious trading of endorsements.  Remember, Avvo doesn't send ballots out and ask lawyers pick other good lawyers to endorse.  The lawyer has to go out of his/her way to look up the lawyer and give them an endorsement.   That's awful nice of them, isn't it?

Take the case of a local attorney who was recently publically reprimanded for taking money from a State-funded public defender client on the side.  He has accumulated 13 peer endorsements.  Of those, 4 can be considered local attorneys, 2 are from other areas of the state, and the rest are from attorneys as far away as Massachusetts and New York.  However, almost all the endorsements claim to be a "fellow attorney in the community."   I suppose that could be true, so long as you consider "the community" as encompassing a territory stretching from western Wisconsin to Massachusetts, or as including every attorney on Avvo.  I doubt that's what most people have in mind.
Further, in each case, the local attorney reciprocated with an endorsement of the other attorney.  It gets worse:

Among the 13 attorneys willing to vouch for our local attorney are Howard M. Lewis, an attorney from Massachusetts who has accumulated 650 personal peer endorsements, stretching from coast to coast; and Matisyahu Wolfberg, from New York, who has 172 personal peer endorsements.  Alas, Howard M. Lewis even endorsed one of the other Wisconsin attorneys who endorsed, and was endorsed by, our local attorney!  If you look closely at the endorsements, you will even find attorneys justifying their endorsement based on the number of endorsements the attorney has amassed.  And you thought a prerequisite to being a lawyer was being smart enough avoid to stepping right into a steaming pile of circular reasoning.    

Yet another concern with Avvo's "peer endorsement" component is the prospect that, the more popular the lawyer with other lawyers, the more peer endorsements he/she may get.  However, being popular with other attorneys is not necessarily any measure of being a good attorney and, for better or worse, it can be very bad measure, if you consider that attorneys, and particularly trial attorneys, often work against each other in what has been rightfully termed an "adversarial" system.  Being liked by your adversaries is far different from being respected by them.  I doubt any of my "adversaries" would ever go out of their way to endorse me on Avvo.  If they did, I would certainly worry about what that says about me as a lawyer.    

Alas, there are far more reliable ways to find a good lawyer by than looking to this faulty rating system.  That will be the subject of a future post.  Stay tuned.  In the meantime, for a hillarious article by another attorney who thinks Avvo has no clue, read "AVVOcalypse Now". http://unwashedadvocate.com/2012/11/23/avvocalypse-now/

(Not Legal  Advice)

“I Just Want to Get  it Over With.”  Sound Familiar?  Not so Fast.
Many people charged with an OWI offense take the matter far too lightly. Some view it as a mere “traffic ticket.” They “just want to get it over with” or put it behind them.  This is a big mistake.  Many people plead guilty with woefully inadequate information about the consequences of their plea.  The truth is, by pleading guilty or no contest to OWI, you may never be able to put it behind you. 
 
The consequences of even a first-offense OWI have steadily grown more severe. In Wisconsin, for example, people convicted of OWI will have that conviction on their driving record forever. That conviction can then be used to enhance, or aggravate, future OWI charges and consequences. The Wisconsin Legislature is right now contemplating making a Third-Offense OWI a felony. 

The fines associated with an OWI  conviction are very significant. Moreover, the conviction will almost always result in substantially increased insurance premiums, and in some instances, outright cancellation.  

In Wisconsin, an OWI conviction will result in a mandatory license revocation of at least 6 months.  This can jeopardize your livelihood.  For example, Commercial Motor Vehicle  license holders will be ineligible to drive a commercial vehicle for one year,  even if they are merely administratively suspended pending their OWI trial. Those who incur two OWI convictions after September 2005—even if the convictions stem from use of their private vehicle—will simply have to find a new line of work.   

The fact is, some people will plead guilty or no contest to an OWI that could have been dismissed, reduced, or which could have resulted in acquittal.  Many will plead guilty not knowing how the conviction will affect them, now and into the future.  A good OWI attorney will obtain your driving record, get all the facts, and provide you the information you need before you make a decision you cannot take back, and, often, will never live down.            
 
 “I Don’t Need a Lawyer.”  
 If you have been charged with an OWI offense, you have some very important decisions to make.  A conviction will likely follow you for the rest of your life.  The “other side” will have a lawyer representing its interests against you.  That lawyer took an oath to zealously represent his/her client, the town, city, county or State. That person cannot represent your interests at the same time.  If you are relying upon the prosecuting attorney to advise you of your best interests, you are making a big mistake.  
 
A prosecutor can prosecute you so long as there is “probable cause” supporting your charge.  “Probable cause” is a lower level  of proof than is needed to convict you.  Most prosecutors have a heavy caseload.  You simply cannot rely upon them to point out weaknesses or defenses that could jeopardize their “client’s” case.  Rest assured, most prosecutors would rather have you plead guilty or no contest to the offense. You need an experienced advocate on
your side to help you determine what is in your best interests. 

“I Have Time to  Think About This.”
In Wisconsin, if a legal blood-alcohol test puts your blood-or breath-alcohol level over .08, or if you refuse to undertake such test, you have as little as 10 days to act to prevent  the suspension or revocation of your license.  If you blow it off, your driving privileges will automatically be suspended or revoked by the DOT. This is serious, because a test “refusal” can have the same effect as an OWI conviction, in terms of being “counted” as a prior offense.  As mentioned above, for persons with Commercial Driver's Licenses, the  administrative suspension alone will result in one year without a commercial  driver's license. 

Your rights can be drastically affected well before your  first mandatory court appearance.  Many people let this crucial time lapse, thinking there is nothing they can do.  However, there are issues that a good OWI attorney can look for, and a good OWI attorney will have helped numerous clients avoid an interruption of their driving privileges.  One thing is for sure, if you do nothing, you will lose.                   

“Any Lawyer Can  Handle My OWI/DWI/DUI Case.”
OWI law is complicated.  Public demands for more strict  standards and penalties have  caused frequent changes in the laws and penalty structures.  It is challenging for a criminal defense attorney who regularly practices in this field to keep abreast of these frequent changes, let alone the attorney who defends the “occasional” OWI case. 

A lawyer who keeps track of these changes will help you navigate this “minefield.”  To ensure the competency and efficiency of your legal counsel, it is strongly recommended that you hire a lawyer who regularly practices in this field. 
Before you hire an OWI attorney, ask (1) how many OWI cases have they taken to a jury trial, (2) what percentage of their practice is dedicated to OWI defense, and (3) what instruction do they have to keep up to date with the changes in the OWI laws. 

OWI cases regularly involve scientific testing procedures to determine blood-alcohol levels. These procedures involve strict protocols and standards that must be observed to ensure the reliability and admissibility of the test results.  The introduction of such evidence at trial can be  tricky, even for the seasoned prosecutor. 

A good OWI attorney is familiar with the rules the scientists and prosecutors must follow, and he/she will jump to
action when they have not done so.  A good OWI lawyer must know how to obtain, analyze, and detect possible defenses from the various materials available.  He/she should have experts” he/she can turn to aid in this process and, if necessary, testify at trial. 

It is a serious mistake to believe any attorney can  effectively handle these cases.  Most can't.  I have been
representing persons charged with OWI/DWI/DUI from the first day of my practice.  I regularly attend and participate in annual training conducted by the most talented and knowledgeable attorneys in this field.  I have handled these cases in trial for years.  I know what to look for, so you need look no further. 
 
 “The Cheaper the Lawyer, the Better.”
Lawyers are also businessmen.  A good law practice is expensive to maintain.  Lawyers must charge  sufficient money to pay expenses and their salaries.  More importantly, OWI cases require very careful attention to detail, and may need to go to trial. 
 
 Good OWI attorneys will not undertake responsibility for a case unless there are sufficient funds to guarantee a substantial portion of their fees and expenses.  If you find a lawyer who will take your case at a very low price or
rate, it may be cause for concern.  You may only be worse off if your lawyer withdraws from your case after the insufficient retainer he/she required has been exhausted. 

Almost any lawyer can sit next you as you plead guilty.  A good OWI attorney should consider a guilty plea the last resort, not the presumed outcome.  However, properly  investigating and developing your
defense will cost money.    

“I Tested Over ‘the Legal Limit’, So I Must Be Guilty.”
In Wisconsin, you are “guilty” of simple OWI only if you drove or operated a motor vehicle upon a highway while (1) impaired in your ability to drive by alcohol; or (2) while having a blood-alcohol concentration at or above .08.  If your blood-alcohol level was at or above .08 at the time of the test, it does not necessarily mean it was the same level while you actually drove or operated your vehicle.  Importantly, the Preliminary Breath Test ("PBT"), which is the device used to test your blood- alcohol level at the roadside, is not admissible at trial in most states, including Wisconsin. 

Alcohol is absorbed into the blood stream over time.  Therefore, a person who was not impaired, but who “tests”
with a blood-alcohol at or above .08, could in fact be innocent.  With the proper information, a good OWI attorney can have your case analyzed to determine whether you fall within this category of defendants.  No person should have to
plead guilty to an offense they did not commit.        

The proliferation of OWI traffic stops and arrests has put tremendous pressure on the equipment and personnel in charge of testing breath and blood samples for BAC.  After all, the test result is only a piece of paper with a numerical
result, a fancy heading and a signature. It is not even the actual test, but instead a document created after the fact to look important and "official".

Testing equipment must be properly maintained and operated, and exacting protocols and tolerances must be observed, in order to obtain accurate and admissible BAC test results.  An experienced OWI attorney will, where appropriate, know how to obtain the documentation necessary to determine whether there may be equipment maintenance or performance issues that can be used to demonstrate doubt regarding the test result.  I have never handled any case where the prosecuting attorney knew more than me about the BAC testing equipment, or the
procedures and science surrounding the testing process.

The following is not legal advice.  The  best practice is to always have a lawyer before you go to court.  Like all the posts on this blog, the following is not exhaustive, and is informational only.  This information applies specifically to the La Crosse County, Wisconsin, Circuit Court.  Do not use this to substitute for the advice of an attorney.

Your first time in court can be scary; even if it's only the first time for this case.  In La Crosse County, ALL non-traffic-related criminal cases, and all non-traffic ordinance cases investigated by the La Crosse County  Sheriff's Department, the UWL Campus Police, and Wisconsin DNR--as well very serious traffic-related cases--will start in the criminal intake court. 

"Intake" court takes place Monday through Friday at 1:30 p.m.  There is a rotating schedule that determines which of the five "Branch" judges will preside, and therefore, which courtroom, or "Branch" Intake court will take place in.   You should look at your Summons, bond, or citation (ticket) to determine which court your case is scheduled in.  Many, many people go to  the Circuit Court, when their case is actually at the La Crosse Municipal Court, or the Joint Municipal Court in Onalaska.  I strongly recommend you call the Clerk of the La Crosse County Circuit Court prior to your court appearance to make sure the date and/or time on these documents are correct , because too often they are not.  If you are in the wrong place when your case is called, regardless of whose fault, you can be the one who pays, in the form of a warrant for your arrest.  A picture of the La Crosse County Circuit Court can be seen below.  

When you get to court at 333 Vine Street, La Crosse, WI you will see the sign posted at the metal detector saying on which floor Intake Court is being held.  The security guards are friendly, and they will give you further directions if you ask, or you can simply proceed to that floor.  The court calendar, or docket, will be posted next to the courtroom doors.   Because Intake Court usually has a lot of cases, look for the long list and that is probably the right courtroom.  Look for your name.  If you see a note that says "DA Decline", or words to that effect, next to your name, then your case is not being prosecuted, and you can leave.  Your cash bond--if you or someone posted one--will be mailed to the person who posted it within several days, and your bond is no longer effective.

The first cases to be called in Intake Court are the people in custody, starting with the females.  Therefore, if you see a lot of names before you on the list, or if there are a lot of people in the jury box wearing orange or blue jail uniforms, you probably have time for a smoke or to make some phone calls to attorneys.  However, don't be late, because if your case is called and you are not there to answer, a warrant will be issued.  However, if you have arrived late, do not leave.  Wait until all the cases have been called, then ask to have your case recalled.  That will usually result in the warrant being "quashed".

Several things can happen at intake court.  Listen carefully to the Judge's opening instructions. 

CRIMINAL CHARGES
If you are being charged with a crime, when your case is called, you will proceed to the podium in front of the judge's bench.  Usually, you will then be handed a criminal complaint, which states what charges are being brought, and then will contain a statement of "facts" that support the charges.  Beginning in 2014, you will be asked to enter a plea to the charges at that time.  You will be given an Order for Pretrial Conference.  That document contains two dates:  (1) the date you must meet with the District Attorney's office to discuss a plea offer, and (2) Status Conference date, or the date you must return back to court to inform the Court whether you will be accepting a plea offer and pleading guilty or no contest, or requesting a trial. 

People charged with crimes, whether misdemeanor or felony, have a "right" to an attorney.  Therefore, if you are without an attorney, you will also be asked if you plan to hire one.   If you do want an attorney--and you darn well should if you have been charged with a crime-- and you don't think you can afford one, you will be given directions to the Public Defender's Office.  Go see them without delay. 

If your charges include at least one felony charge, you will be asked whether  you want to have a Preliminary Hearing, or probable cause hearing.  That is a hearing wherein the prosecutor will have to put on sufficient testimony and/or
evidence to show that you "probably" committed a felony or felonies.  If you have not already talked to an attorney,
you can ask the Judge for time to get an attorney.  Depending on your case, the Judge will either give you more time before making that decision, and reschedule your Initial Appearance, or will simply say that he/she is scheduling the Preliminary Hearing, and tell you to see the Public Defender or hire an attorney before that date.  

Sometimes--and in recent years this has become more frequent--the prosecutor will tell the Judge that they need more time to prepare their charges.  In that event, the Judge will usually give them a day or two, and will order you to return.  It's never about your convenience.   

Whatever the nature of the criminal charge, a bond must be established before you leave.  If you were not held in custody for court, the chances are very good that you are going to be allowed to leave after your case has been called, so don't skip court out of fear.  It will only make things worse.

Before setting bond, the Judge will usually first ask the prosecutor what his/her position is on bond.  They can ask for a cash bond or a signature bond, depending on the nature of the case.  They can also ask for whatever conditions they feel are necessary to protect the public and/or ensure your appearance back in court, including testing for alcohol or drugs, GPS monitoring, curfew, etc.  If you have already been arrested and given a bond by the jail or arresting officer, they may simply ask that the bond continue, or may ask that it be altered.  If you have not been arrested previously, you will probably be given a "booking complaint", and told to go to the jail after your court appearance, to be "booked", i.e. fingerprinted, photographed, and registered. 

Before your bond is set by the Judge, you may be asked what your position is on bond.  This is where having a lawyer with you is very important.  However, if you do not, then DO NOT SAY ANYTHING ABOUT THE FACTS UNDERLYING YOUR CASE.  This is not the time for a trial, and you are not going to talk your way out of the charges at this time.  Countless times I have been in court and watched as some nervous person said something that could harm their case, including outright confessions.  Remember, you have been charged with a crime:  "Anything you say can be used against you."  

Once the Judge has ordered the type and conditions of bond, you will be pointed to a table in the courtroom where the Judge's assistant will be preparing your bond.  You will be asked to sign it.  You will be given a copy.  If you have been ordered to do other monitoring, you may be given further instructions.  Do not lose your paperwork, and do not forget the date and time you must return to court.  You can now leave the courtroom.

NON-CRIMINAL, OR "FORFEITURE"  VIOLATIONS
The major differences for people who are charged with non-criminal violations:  (1)  they do not have the "RIGHT" to an attorney before they can be prosecuted, but they certainly have the right to consult with or to hire their own at their own expense; (2) there is no automatic right to a jury trial; and (3) the standard of proof is "clear, satisfacotry and convincing, NOT "beyond a reasonable doubt".

Sometimes, however, as is the case with Underage Drinking violations, they will be asked if they want to participate in some kind of program, the completion of which will result in dismissal of the charge or reduction in the penalty.  In that case, you will be told to complete the program, and you will likely be told to come back for a future  court date if you do not.   

Even if you are asked to enter a plea, as is more fully described fully in another article on this blog, you have the statutory right to a continuance before entering a plea.  If you do not ask for one, you will not be given one.  Even if you do ask for one, the Judge may enter a not guilty plea for you and tell you to meet with the prosecutor.  More on that. 

If you do enter a plea, the choices are "guilty", "not guilty", or "no contest" (nolo contendre).  "No contest" just means that you do not confess guilt but still agree to be convicted.  If the actions that led to you being charged could also result in you being sued, such as in a car or boating accident, then this plea may be better than "guilty", which could be used to establish your fault in the lawsuit. 

If you plead guilty or no contest, the judge will then proceed to sentence you to pay some monetary amount.  The  prosecutor will be asked their position, and you will have a chance to say what you think is appropriate.  Usually, the amount of the forfeiture is far less than the mandatory court costs and surcharges imposed.  You can also ask for time to pay.

If you plead not guilty, the Judge will usually order you to meet with the prosecutor to discuss possible solutions prior to setting the case for trial.  However, if you say "not guilty", or the judge enters your not guilty plea for you, then if your case qualifies for a jury trial, you will have only 10 days to request the jury trial in writing and pay the jury fee.  If you do not, your trial will be to a judge only.  This is a trap for the unwary, because, usually, the meeting with the prosecutor is AFTER the 10 days has passed.  

END.