Criminal Law Questions? Ask a Criminal Lawyer.
The legal limit for 1st-3rd time offenders is .08%. A police officer does not have to witness you driving in order for you to be charged with OWI. If you get into your vehicle and start it, this is enough for the charge to go forward and for you to be convicted.
The charges and potential penalty you will face for an OWI charge depend on how many prior convictions for OWI you have had.
The fact that your alcohol level at the station was lower than a .08 MAY be helpful. The breath test at the car can't be placed into evidence at a trial. Only the breath test at the station can be introduced into evidence. As your test does not meet the "legally drunk/impaired" standard, the prosecutor can't rely on the breath test taken at the car.
Therefore, the prosecutor would have to prove that your driving was "impaired" and that you had previously been convicted of OWI. The previous conviction is easy for the prosecutor to prove. However, it is whether your driving was "impaired" at the time of the stop that is one that is a question of fact (because your test at the station was below the legal limit).
As such, the prosecutor must prove that you were "impaired" by using other factors. As for the stop, the police officer DOES have the right to run plates. If the plate came back to your father and he had a warrant for DWLS, then the officer had a right to pull you over. It is what happened after the stop that may become important.
I am sure that the officer asked you if you had been drinking (s/he may have smelled alcohol on your breath). If you said "yes," then the officer probably asked what you had been drinking and how much. The officer then probably asked you to step outside of the vehicle and perform "field sobriety" tests--for example, walk a straight line, close your eyes and touch your fingers to your nose, look into your eyes with a light, recite the alphabet and count backwards from a given number to another number. If you failed any and/or all of those tests you could be arrested. Moreover, the fact that you blew a .084 at the scene allowed the officer to arrest you.
But....remember, the breath test at the scene can't be used at trial. Therefore, the prosecutor would have to go further to prove that your driving was impaired by the consumption of alcohol. If you PASSED all of the field sobriety tests AND you blew a .07 at the station, you may have a good shot at trial to win. Why? Because it is the burden of the prosecutor to prove that you are GUILTY BEYOND A REASONABLE DOUBT. You are PRESUMED INNOCENT until proven guilty beyond a reasonable doubt.
Unfortunately, if you either plead guilty or are found guilty of OWI 2nd offense, the penalties are more strict than those for a finding of guilt for OWI first offense (see above chart). However, the fact that it has been 8 years since your last conviction may be helpful when it comes time for sentencing.
The judge has a great deal of latitude when determining a sentence. S/he can consider your past record, whether s/he believes that you have a substance abuse (alcohol or drug) problem, your work history, your education, your ties to the community, your willingness to admit that you did something wrong and your willingness to TAKE RESPONSIBILITY for your actions and any other relevant factor. Judges want to know that defendants take responsibility for their wrongdoing, and are willing to take their punishment. Those defendants who are GENUINELY sorry for the harm that they placed themselves in, others on the road, family members and the community as a whole, tend to gain more respect from the judge than those who do not.
It is also EXTREMELY important to appear at every court appearance, and to do so dressed as a professional. This means wear a suit, if you have one, or a nice pair of pants and shirt and tie (tuck in shirt). DO NOT wear long tee shirts over ill fitting jeans, tee shirts that have sayings on them that the court may feel are offensive, etc. Also, if you have long hair, place it in a pony tail so that the judge can clearly see your face. And, when you speak to the judge, do so in a clear voice that can be heard by the judge. Also, look the judge in the eye and DO NOT say "uh huh," "whhhat," or other "slang." Always address the judge as Your Honor, Judge, or Sir/Madam. If you don't understand something or you didn't hear something the judge said, make sure to say, "Your Honor, I didn't hear/understand what you said. Can you please repeat the question/statement?" And, no matter the punishment (if you are convicted and sentenced) always say "thank you."
I give the above advice because the judge only has a few minutes to "size you up." If you present yourself in a positive light (grooming, clothes, speech, manners), then the court may be influenced by that. It may make the difference between putting you on probation or putting you in jail. Why? Because if you respect yourself (by how you look, act, speak) then the judge may think that you may be successful on probation, rather than to just put you in jail.
Beyond the possible penalties stated in the chart, the judge could make you do community service, attend counseling and/or AA, and any other term of probation as allowed by law.
It would truly be in your BEST INTEREST to speak to an attorney who specializes in criminal/drunk driving law. Sometimes, an initial consultation is free or at a minimal cost. You can discuss the specific facts of your case, evaluate your options and decide how to proceed. An attorney is skilled in the law and gets paid to be your "mouthpiece."
Below is a link to the Wisconsin Bar Association Attorney Referral and Information Service. An attorney associated with this Service agree to charge no more than $20 for the first one-half hour consultation.
Remember, the first half-hour consultation may be free, but no more than $20.00. It is WELL worth the money. Even if you cannot afford to hire an attorney, you can gain valuable information. Then, when you go to court, if the judge finds that you are "indigent" (unable to afford an attorney), you can ask for a public defender. You will already know some information and be better equipped to ask your public defender any questions that you may have. Your attorney may be able to "poke holes" in the prosecution's case, or provide you information on whether a plea bargain to a lesser offense is possible. ***Note, usually on a second offense, no plea bargain is offered UNLESS the prosecution's case isn't strong.
I hope you find this information useful.
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