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OWI 2nd offense: incorrect field test, case dismissed

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Recently, I had a client facing an OWI 2nd charge in Milwaukee County Circuit Court.  The case was in circuit court because an OWI 2nd in Wisconsin is a criminal charge, whereupon if convicted you face up to 6 months in jail, along with a license revocation, fine, AODA, and ignition interlock requirements.  My client had been at a stop sign and when it was his turned he had pulled forward into the intersection.  Before he cleared the intersection, another vehicle attempted to proceed through the intersection and hit my client’s vehicle.  Subsequently my client was arrested and submitted to a chemical test.  The State’s offer in the case included jail time as is required by law and after discussing the case with my client, we decided it was in his best interest to file a motion on the case.

            The motion challenged whether the officer had probable cause to arrest my client.  Without the arrest the State would not be able to use the chemical result against my client.  The basis of the motion was that my client performed well on his field sobriety tests, the officer did not know how to accurately perform the tests, and there were inaccuracies within the officer’s police report.

            Upon cross-examining the officer, I was able to get him to admit that his police report was inaccurate as to indications of intoxications that he was looking for.  Specifically, the officer indicated in the report that my client exhibited certain signs, that upon watching the video in court we were able to see did not exist.  I was also able to demonstrate that the officer was unaware of how he was supposed to perform one of the field sobriety tests.  The sobriety tests exist nationwide in a standardized form to ensure that the results indicate intoxication as studies have demonstrated that they will.  However, if the test is not done as is required then there is no telling what the results indicate.  Here, the officer, when cross examined, indicated that he did not do the tests correctly.  Furthermore, the officer, upon questioning, admitted that if the test is done incorrectly even a person who is sober may fail the test.

            Ultimately the Judge ruled in our favor and suppressed the evidence gathered after my client was arrest, making it so that the State did not have a chemical test result above the legal limit.  Without this evidence the State eventually decided to dismiss the case against my client.