Defenses Against OWI Charges
How I Can Help if You Have Been Accused of Drunk Driving
Intrepid Law Office, LLC focuses solely on protecting citizens’ Fourth and Fifth Amendment rights. Through our experience, we have developed innovative strategies that have proven to be successful. Two defensive strategies used in the past in OWI cases are “Collateral Attack” and “The Curve Defense.”
In Wisconsin, you can collaterally attack your past offenses. It is based on your Fifth Amendment “right to counsel.” Collateral attacks of past offenses means that if when any of your prior OWI offenses occurred you were not represented by an attorney and you did not sign a knowing waiver to your right to an attorney, then that offense may be thrown out and not used against you.
The sentencing court is also required to make a finding that you were competent to not only waive your right to counsel, but also to proceed without counsel.
Even if you did sign a waiver, it is only valid if the record from the prior offense reflects your deliberate choice to proceed without counsel as well as your awareness of the difficulties and disadvantages of self-representation, the seriousness of the charge(s) you were facing, and the general range of possible penalties that may be imposed if you were found guilty.
Unless the record reveals your deliberate choice and awareness of these facts, a knowing and voluntary waiver cannot be found and therefore the past offense must be dropped and not used against you. So, if you are charged with your fourth OWI but we were successful in this defense, then it will be dropped to a third OWI.
The Curve Defense
The law states that you cannot be over the legal limit at the time of driving. Alcohol is absorbed in the body over time. The absorption of alcohol over time can be depicted as a bell-shaped curve on an X/Y axis. BAC starts out at 0.0. As one drinks, it generally increases, peaks, and then falls back to 0.0.
In Wisconsin, a person is only guilty of OWI/PAC if at the time of driving, they were impaired and/or above .08 BAC.
In a “curve defense” case, we argue that the client’s BAC was under .08 BAC (or .02 for fourth or greater offenses) at the time of driving, and then rose above .08 BAC at the time of the test.
This means that we are arguing that during the field sobriety tests, arrest, or during transportation to the hospital, the body absorbed more alcohol, causing our client’s BAC level to be higher than it actually was when they were driving.