Simply because you are charged with operating while under the influence of an intoxicant in Wisconsin does not mean that you are guilty. In any case, the government has the burden of establishing each fact to a high degree of proof. In all criminal cases, it is beyond a reasonable doubt. You can either agree to relieve the government of that burden by pleading guilty, or hold the government to their burden by aggressively defending your case.
The proposed new OWI laws intend to make it tougher on multiple offenders and those who injure someone when operating while impaired. Unfortunately, Wisconsin’s mandatory penalty system needlessly removes charging and sentencing discretion from both the state and court. While mandatory penalties provide certainty, not all OWI offenses are equal. Each case does not neatly fit into the sentencing scheme. Cookie cutter justice for everyone is not necessarily justice for all. Wisconsin should return to a system that gives the State and Court discretion in both charging and sentencing.
60 Minutes recently ran a segment on “Invisible wounds of war”
that dealt with the traumatic brain injuries (TBI) and very real post-traumatic stress our veterans suffer as a result of combat. In Wisconsin, this issue needs to be brought to the forefront with courts considering Veteran’s Treatment Court for veterans who are charged with OWI and have mental health issues related to Post Traumatic Street Disorder (PTSD).
Unfortunately, many courts and prosecutors are not aware of the very real difficulties that occur with PTSD. Prosecutors seem unwilling in many situations to recommend Veteran’s Treatment Court inasmuch as their belief is that it somehow mitigates potential punishment. Veteran’s Treatment Court is an option in multiple OWI situations. Veterans who have received a civil or criminal operating while under the influence of intoxicant charge and who have been diagnosed with PTSD, in many cases have significant issues relating to alcohol that should be addressed in a setting other than confinement.
Too often, prosecutors seem to make simple guideline recommendations. Their actions seem to suggest that every case should fall into some neatly wrapped punishment package. I feel it is important to begin the process of educating courts and prosecutors regarding the Veteran’s Treatment Court options that are available in Wisconsin. In addition, as defense attorneys, we need to begin the process of educating prosecutors and courts alike on the symptoms and diagnoses of PTSD and other brain injury disorders related to military service. Hopefully, with a little education, the courts and prosecutors will start to see that Veterans Treatment Court is a viable option to help our veterans gain the necessary treatment to help them to live alcohol free in society.
- PTSD/TBI: Invisible Wounds and the Trillion Dollar Medical Blunder (salem-news.com)
Recently an issue regarding the Ignition Interlock Device and the rental of vehicles was asked in my office. The issue in Wisconsin is whether or not individuals who are subject to the requirements of an Ignition Interlock Device are able to rent vehicles without the device, or is any vehicle they operate subject to the Ignition Interlock Device?
Unfortunately, the Wis. Stat. §343.301 requirement of the Ignition Interlock Devices is license specific. In fact, the Court is required to order that the person’s operating privileges be restricted only to operating vehicles with the Ignition Interlock Device installed. The Court must also order that any vehicle for which a person’s name appears on the certificates of title or registration be equipped with the Ignition Interlock Device. Thus, even if a person is renting vehicles, the statute requires that those vehicles have the Ignition Interlock devices installed.
The Supreme Court recently decided McNeely v. Missouri in favor of the defense. At first glance, it looks like a significant victory for those of us who practice drunk driving defense. However, upon a deeper review, it simply opens the door for prosecutors and courts to manipulate the system to effectuate what McNeely requires. I foresee that the government will now either expedite the warrant process in such a way that it will be a revolving door in terms of OWI arrest warrants, or, the .government will make it so difficult to obtain a warrant that court’s will find the exigency existed because of the time it would have actually taken to obtain the warrant.
It might also mean the end to blood testing. Officers could simply refuse to request blood tests. It is quite possible that police departments, at least in Wisconsin, will make breath testing their primary test. Thus, while McNeely is a blow to the government, the question remains how big of a blow is it? It will be interesting to see if states like Wisconsin ignore it, or find creative ways to avoid it.