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xavierjd, Lawyer
Category: Criminal Law
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Experience:  Over 20 yrs experience in prosecution and defense work
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I just got my second owi offense last night. On the citation

Customer Question

I just got my second owi offense last night. On the citation the bac is .07. Does this carry as strict penalties as one above .08? Would a DA consider a lesser charge on something like this. My last DUI was 8 years ago.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  xavierjd replied 1 year ago.
Thanks for using JustAnswer.com. It will be my pleasure to assist you today.

What was the reason that the officer told you as to why s/he pulled you over?

Was there an accident?

Thanks
Customer: replied 1 year ago.
My truck is still regestered under my fathers name. He lives in another state and for some reason it said his license is suspended. The officer pulled me over because of this. There was no traffic laws broken. There was no accident.
Expert:  xavierjd replied 1 year ago.
Hi Mike,

I want to look up a few things and I will be back with you asap. Because you were a .07, there are many other issues involved. It may take me some time to formulate you an answer, and it may be long.

Therefore, I appreciate your patience.

Thanks
Customer: replied 1 year ago.
Thank you. Just some more info I did blow a 0.084 on the scene. I blew the 0.07 at the police station and the 0.07 is the bac on the citation.
Expert:  xavierjd replied 1 year ago.
Hi Mike,

Let me begin my answer with giving you the possible penalties if you were to be convicted of OWI 2nd offense. The charge of 2nd offense is available to the prosecution because your first conviction was within 10 years of your second offense.

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.

Charge Potential Jail Fine License Revocation Occupational License Eligibility
2nd 5 days- 6 months $350-$1,100 12- 18 months After minimum 60 days
3rd 30 days- 1 yr. $600- $2,000 2-3 years After minimum 90 days
4th 60 days- 1 yr. $600- $2,000 2-3 years After minimum 90 days
5th + 6 months- 6 yrs. $600- $10,000 2-3 years After minimum 90 days
  • In addition to the above penalties, your vehicle may be seized and become property of the State of Wisconsin.
  • You may be required to use an interlock ignition device once you are allowed to drive again. This device requires you to take a breath test before starting your vehicle.
  • SR22 Insurance is required.
  • With every OWI conviction you will also earn 6 demerit points on your driving record.

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.


http://www.wisbar.org/forPublic/INeedaLawyer/Pages/LRIS.aspx

 

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.

 

 

 

Thank you for your business!

Xavierjd

Many customers have asked how they can specifically direct a question to me in the future. If you specifically want me to assist you in your legal matter, just put "xavierjd” in the subject line and I will gladly pick up the question as soon as I am on-line.

***Answers given are for informational purposes only and are not meant to replace the advice or assistance of an attorney licensed to practice law in your state. If you need any more information, please do not hesitate to ask. Thank you!

 

 

 

 

 

 

 

 

Customer: replied 1 year ago.
One more question
My rights were not read to me until we were at the station and after I did the bac. Do they need to be read to me at the scene or no?
Expert:  xavierjd replied 1 year ago.
Hi Mike,

The "rights" that you are referring to are called "Miranda" Rights.

Miranda Rights ONLY APPLY IF: 1) you are in custody, AND 2) the officer is asking you specific questions regarding the offense.

If the officer asked about whether you were drinking, etc., had you perform field sobriety tests and then arrested you, NO Miranda rights had to be given UNTIL the officer asked you specific questions about the offense. In that case, the officer most likely, read you your rights Miranda rights off of a form. Then, s/he would have asked if you understood your rights and would have had you sign the form. Sometimes, the officers also ask that you initial each of the rights indicating that you understand each of your rights.

So, in conclusion, it is quite possible that the officer was under no obligation to read you your Miranda rights until you were IN CUSTODY AND YOU WERE ASKED SPECIFIC QUESTIONS ABOUT THE INCIDENT.

If you offered any statement before Miranda rights had to be given, those statements may be admissible at trial if they were voluntarily made.

Your question is a GOOD one. It is one that you should go over with an attorney during a consultation, or with an attorney you retain or with your public defender. The attorney can look at the documents and ask you specific questions regarding the officer's conduct. Only then, can a determination be made if your rights were potentially violated.

I hope you find this information useful.

Thank you for your business!

Xavierjd

Many customers have asked how they can specifically direct a question to me in the future. If you specifically want me to assist you in your legal matter, just put "xavierjd” in the subject line and I will gladly pick up the question as soon as I am on-line.

***Answers given are for informational purposes only and are not meant to replace the advice or assistance of an attorney licensed to practice law in your state. If you need any more information, please do not hesitate to ask. Thank you!

xavierjd, Lawyer
Category: Criminal Law
Satisfied Customers: 3400
Experience: Over 20 yrs experience in prosecution and defense work
xavierjd and other Criminal Law Specialists are ready to help you
Expert:  xavierjd replied 1 year ago.
Hi Mike,

Thank you so much for the "excellent service" rating! It is greatly appreciated and I am glad that you found the information useful.

If you have future questions, you can specifically request me by name as the expert.

Thanks again,

xavierjd

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