Second Offense OWI
Another charge. Another real RESULT.
Location: Waukesha, Wisconsin
I had a client facing an OWI 2nd charge in Waukesha 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 on her way home and the arresting officer stated he saw her weaving across the center line, tailgating, and speeding. Subsequently my client was arrested and submitted to a chemical test. The State’s offer in the case included jail time, as required by law. After discussing the case with my client, we decided it was in her best interest to file a motion on the case.
Our motion focused on all aspects of the State’s case:
While there was no doubt my client had violated traffic laws and the officer had the right to pull her over, his interpretation of her driving differed from common sense and from what was visible on the video. The officer alleged she was weaving because she was intoxicated. That would be the common-sense assessment when you see a vehicle weaving on the road. However, there were two other explanations that not only fit my client, but made even more sense. First, she had two lap dogs loose in the car with her and she told the officer they had been romping around in her car, which caused her to weave. This explanation was entirely plausible, however, there was an even more reasonable explanation.
My client had obviously been tailgating the vehicle in front of her and as soon as the vehicle moved over she significantly increased her speed. Instead of not being in control of her car because of intoxication or because of her dogs, I argued she was just being a bit of a jerk. Most people have had the experience of a slow driver in front of them, and it is fairly common to drift to both sides of the slow vehicle to see if anyone is in front of them and to, hopefully, signal to the driver in front that you want them to pull over so you can get around them. This is exactly what my client was doing. While this is far from good driving behavior, it shows intentional action as opposed to a loss of ability to control her vehicle, as would be the case if she were intoxicated.
The officer had indicated in his police report that she had failed two of the standardized field sobriety tests and therefore he had the ‘quantum of probable cause necessary’ to request a preliminary breath test (and a later blood test), which came back at 3 times the legal limit. That was his assertion, but he was wrong on multiple fronts.
First, I was able to prove the officer incorrectly administered the first of the field sobriety tests and, therefore, the Judge was unable to consider what the test ‘results’ demonstrate. The first field sobriety test administered is the horizontal gaze nystagmus (the eye test), and there are a specific number of passes the officer must do and a specific amount of time these passes should take. He did too few passes in too short a time, which rendered the test completely wrong.
Second, I was able to prove that one of the two signs of intoxication he attributed to my client on the second test, the walk and turn test, was not in fact a sign. We played the video in the court room several times, and the officer admitted that based on the rules of what constitutes a sign of intoxication, my client had not violated the instructions/rules of the test. So, now, instead of failing two tests and passing one, she had actually passed two of the tests and the third was done wrong.
The Judge requested additional briefing on some of the arguments of the motion and following those briefs he ruled to suppress the blood evidence against my client. With the Judge’s ruling the State had to dismiss the case against my client!