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How to beat your OWI, DUI, or drunk driving charge.

In every state it's called something a little different.  But if you're caught drunk driving you're likely facing something called an OWI, OUI, DWI, DUI, or plain old drunk driving charge.  In Wisconsin, we refer to drunk driving charges as operating while intoxicated (OWI) or driving under the influence (DUI).

No matter what the charge is called, drunk driving cases are generally approached the same way.  Drunk driving and criminal defense attorney Matthew Meyer, of Meyer Van Severen, S.C. explains strategies we typically use to attack drunk driving charges.  With these strategies and an aggressive defense attorney, it's sometimes possible to completely beat your drunk driving charge.

  1. I wasn't driving the vehicle.  (Or, I wasn't operating the vehicle.)

This sound like an easy one, doesn't it?  The average citizen is frequently shocked when they learn that drivers are frequently arrested for OWI by simply sitting in the driver seat of their vehicle.  In Wisconsin, operating a motor vehicle while under the influence of an intoxicant or other drug is prohibited by section 346.63 of the Wisconsin Statutes.  That law makes clear that "no person may drive or or operate a vehicle while" any of the following occur:

  • The defendant is under the influence of an intoxicant; or
  • The defendant has a detectible amount of a restricted controlled substance in his blood; or
  • The defendant has a prohibited alcohol concentration.

Driving and operating are requirements for the charge.  Drive means the exercise of physical control over the speed and direction of a motor vehicle while it is in motion.  Operate means the physical manipulation or activation of any controls of a motor vehicle necessary to put it in motion.  Frequently operate refers to putting the key into the ignition of the vehicle and turning it.  That's a control necessary to put the vehicle in motion.

You drank too much.  You are sitting in the front seat of your car.  But the keys aren't in it.  Are you committing a crime?  Hopefully you recognize the easy answer here: no.  But the cops aren't going to just assume you're innocent.  They're going to ask you how you got there.  They're certainly going to assume you drove.  And if you admit to driving the vehicle there, you'll be on the hook for some questioning.

  1. The officer didn't have a good enough reason to stop me.

Police need a reason to stop your vehicle.  That reason is probable cause to believe that a crime is occurring, or reasonable suspicion to believe that the driver may be involved in the commission of a crime.  

Probable cause refers to the "quantum of evidence which would lead a reasonable police officer to believe" that a traffic violation had occurred.  Johnson v. State, 75 WIs.2d 344, 348.  Put another way, it requires "the information lead a reasonable officer to believe that guilt is more than a possibility."  Id.  There's certainly an easier way to analyze this.  The cop has reasons to support the belief a crime occurred.  You're speeding.  That's an offense.  He objectively measures your speed.  And then he stops you.  Prior to the stop, he had probable cause to stop you for speeding.

Reasonable suspicion is a lower burden.  When law enforcement lacks probable cause to arrest but has reason to believe an individual may be committing a crime, the officer may stop the individual for questioning.  State v. Washington, 120 Wis.2d 654, 660.  To support reasonable suspicion, law enforcement must have "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion."  Wendricks v. State, 72 Wis.2d 717, 723.  This is certainly a lower burden.  Law enforcement doesn't need to show that a crime is probably occurring.  They need to show that it looks like one is.  And that's certainly easier.  For example:  you were weaving in your lane; it was 2:30 a.m.; you were in a bar district.  Certainly none of those factors are crimes, but taken together they may show reasonable suspicion.

  1. The officer is lying

We'd absolutely prefer for the police to be consistently honest.  Unfortunately, as drunk driving defense attorneys, we're intimately familiar with the inclination of law enforcement to lie.  We've encountered lying officers regarding the following issues:

  • Red, glassy, bloodshot eyes on the driver.  This is one of the frequent signs of intoxication.  And cops love to describe drunk driving suspects this way.  Booking photographs are important.  If the cop saw red, glassy, bloodshot eyes at the time of the stop, they should still be there for booking.  And if they aren't?  We certainly have at least one way to attack the credibility of the officer.
  • The driving was fumbling for his license.  Sometimes this is paired with "the driver refused to comply with the officer's commands."  Let's face it: you're nervous.  Nobody enjoys being stopped by the police.  But there's a difference between being so wasted you can't find your documents and being nervous.  Obviously officers want another reason to claim you appeared drunk.
  • Failing field sobriety tests.  These tests are confusing.  Rather than explain the test thoroughly, officers use confusion as another indication of failure of the test.  Obtaining video of these tests helps us fight that point.

Hire the best drunk driving attorney you can afford.

This point is certainly the most important.  You're not getting anywhere without a good defense attorney.  Even if you can pick up the things we've talked about, you'll be unable to argue them in court.  And unless the argument works, what happened really doesn't matter.  Free forums and blog posts are wonderful.  But without an aggressive mouthpiece, none of those things help your case.

OWI charges carry serious penalties.  Ensure your defense attorney is just as serious.