Johnson Law Firm S.C.
Our office is located at: 715 West Parkway Blvd. Suite B, Appleton, Wisconsin, 54914-2645.
Call (920) 730-8250 for an appointment or email JohnsonLawFirm@new.rr.com
We are a General Practice Law Firm and primarily concentrate on Criminal Defense, Personal Injury, Car Accidents, & Worker's Compensation.
Please Call: 920-730-8250
We also can serve most of your other legal needs with positive results.
We pride ourselves on providing agressive and competent counsel with personal attention to each case.
Our goal is to handle your case with personal attention and to deliver quality legal services.
Our philosophy is to represent each client as if we were assisting a member of our own family.
Our friendly support staff are highly competent to assist with the many details involved in your case.
In short, we take care of our clients and aggressively pursue each case toward a successful outcome.
Our firm uses state-of-the-art technology, including computerized case management systems, the most current research, and investigation information available through the Internet.
Please Call: 920-730-8250
Call us at (920) 730-8250
The Johnson Law Firm S.C. legal staff has the knowledge, technical skill and experience to help you in your pursuit of justice. Attorney Johnson can assist with criminal defense, worker's compensation and personal injury cases as well as providing comprehensive legal representation in other areas of law. We work closely with you to determine desired outcomes and get the results you want.
Attorney Steven Johnson, Criminal Defense, Personal Injury, Worker's Compensation, General Practice
Wisconsin State Bar Number: 1048934
American Bar Association ID# 01287295
Wisconsin Trial Lawyers Association
Outagamie County Bar Association
Winnebago County Bar Association
American Trial Lawyers Association
National Association of Criminal Defense Lawyers
Qualified to Practice:
Supreme Court of Wisconsin
[and all lower State Appellate and Circuit Courts]
Eastern Federal District of Wisconsin
Western Federal District of Wisconsin
LEGAL EXPERIENCEPersonal Injury & Criminal & OWI Defense
Johnson Law Firm S.C., Appleton, WI
President/C.E.O.-Attorney at Law, October 2005 – Present
Currently own/operate my own general practice law firm specializing in criminal defense and personal injuries.
Milwaukee County District Attorney’s Office, Prosecutor Clinic, Milwaukee, WI
Prosecutor Intern, August 2003 – May 2004
Assisted District Attorney’s for Trial Preparation on Cases, Observation of Charging Decisions, Represented the State of Wisconsin in Court through Appearances under Student Practice Rule
Milwaukee County Children’s Court, Guardian Ad Litem Office, Milwaukee, WI
GAL Intern, June 2003 – August 2003
Conducted extensive legal research to assist Guardian Ad Litem’s in the creation of appellate briefs. Observed courtroom proceedings of TPR, CHIPS and other child welfare related cases
Honorable Judge Charles F. Kahn, Milwaukee County Circuit Court Misdemeanor Division, Milwaukee, WI
Judicial Intern, January 2003 – May 2003
Conducted extensive legal research for Judge Kahn, specifically in area of sentencing credit Observed courtroom proceedings in misdemeanor, and all other criminal divisions
Call Us at (920) 730-8250
PERSONAL INJURY IN WISCONSIN
When you have been injured by someone else's carelessness, it is important to take some initial steps toward making sure your injury claim can be settled fairly and as quickly as possible:
- Write down everything you can remember about how the injury occurred, including the names, addresses and phone numbers of potential witnesses, police officers, insurance company representatives (or company or workers' compensation representatives if it was a work injury)
- CALL (920) 730-8250
- Talk to an Attorney at Johnson Law Firm before making any statements, written or verbal, to insurance company adjusters or representatives
- Take steps to protect any evidence you may need to prove your injury, such as your totaled car, photographs of an accident or injury scene, clothing you were wearing, damaged personal belongings, and so forth
How Do I Figure Out Who Is At Fault?
In most cases, in order to collect on an injury claim in Wisconsin, you must prove the person who caused the injury was "negligent" which is a failure to use reasonable care.
In Wisconsin, you must prove:
- The existence of a duty owed to you by the person who caused your injury
- The other person failed to carry out that duty
- You suffered damages
- The other person's failure caused you to have the injury
Contributory negligence does not bar your recovery in an action to recover damages for an injury, if your negligence was not greater than the negligence of the person against whom recovery is sought, under Wisconsin comparative negligence law. Any damages that are allowed will be reduced in proportion to the amount of negligence that is attributed to you.
Wisconsin uses a modified comparative fault rule, under which a damaged person cannot recover if he or she is 51% or more at fault, but can recover if 50% or less at fault. Your negligence is measured separately against the negligence of each person found to be negligent. The liability of any person that was less than 51% at fault is limited to the percentage of the total negligence attributed to that person. Any person that is 51% or more at fault is jointly and severally liable for damages, which means that each of the other people who are responsible for your injury, are liable for all the damages awarded in a lawsuit if the others cannot pay.
If you have been injured using a consumer product, the seller of the product may be responsible under a strict liability legal theory. Under Wisconsin law, you would need to prove that:
- The product was defective, which made it unreasonably dangerous
- You used the product the way it was supposed to be used
- The defect caused your injury
- You suffered damages
What Is My Claim Worth?
Under Wisconsin law, the person who injured you is responsible for:
- Past, current and future estimated medical expenses
- Time lost from work, including time spent going to medical appointments or therapy
- Any property that was damaged, such as your vehicle
- The cost of hiring someone to do household chores when you could not do them
- Any permanent disfigurement or disability
- Your emotional distress, including anxiety, depression, and any interference with your family relationships
- A change in your future earning ability due to the injury
- Any other costs that were a direct result of your injury
A lawyer will know what type of expert witness to hire to best prove your damages.
How Long Do I Have To File A Legal Claim?
In Wisconsin, you only have three years to file a lawsuit against the person who injured you. If your lawyer has not been able to come to an agreement with any involved insurance companies, you will definitely want to file a lawsuit before the three-year statute of limitations runs out.
Preparation for Your Deposition
In the normal case, your deposition is the first and only time in which you will testify, under oath.. about the facts of your case. It is a very important procedure which often forms the basis for settlement. It cannot be taken lightly. Thorough preparation on your part is essential. We are giving you this information to help you be prepared for this important occasion.
The opposing attorney has a right to take your deposition. That lawyer's purpose is generally to understand what you know about the subject matter of the case, so that he or she can prepare for trial and assess the strength or weakness of your position. The opposition may be using this technique to try to discover as much as possible about the facts. The opposition, however, may also be using the deposition as an occasion to have you testify under oath in a way which would make you uncomfortable at trial. If you make statements under oath at trial which are contrary to what you have said under oath at your deposition, your deposition may be used to "impeach your credibility." It is important, therefore, that you discuss with us any concerns you may have about possible problems or areas where you feel at all weak or unsure about your testimony. It is also important that you have fully disclosed to us any potential weaknesses or possible defenses which you believe the opposing party might know about in your case. If we have talked about the difficulties, we will have figured out how, consistent with the truth, you can deal with them. On the other hand, if we do not know about a possible problem or a harmful document, then we will have no way of reviewing it with you before your deposition and it is possible that, on that point or on that document, your deposition would go poorly.
Therefore, you must assume that the opposing lawyer knows all of the potential weaknesses in your case. if for any reason you have not told them to us so far, you must do so before the deposition so that we can adequately prepare your testimony if the subject comes up. If You are right that the other side has no knowledge about a potential weakness, then the subject will not come up and we don't have to worry about it. But if You are wrong in that assumption, then there can be significant problems. Full disclosure to us is always the best policy- A deposition begins with a court reporter taking your Oath that you will tell the truth . It is generally held in a conference room in the opposing attorney's office. One of the attorneys from our office will always be present at the deposition. Because the opposing attorney has requested your deposition, he or she will ask questions and your answers will be taken down by the court reporter.
Unlike a court proceeding, in a deposition, objections to questions are generally few. There is no judge present at a deposition and there is no way to get a ruling on whether a question is objectionable. Only a few objections are appropriate to make at a deposition. This means that often there will be long stretches of time where we will be saying nothing. Generally, however, the less we say, the better your deposition is going so don't be concerned if we have little participation.
It is not your job at your deposition to tell the opposing attorney everything you know about your case. It is your job to answer the questions which the other side asks, as concisely as possible. "Volunteering information" is almost always a bad idea. Realistically, you should abandon any idea that you might convince the opposing party of your account by telling him or her everything you know. In fact, often the other side does not know some of the things that you know, and if you make a disclosure of an item not previously known to the other party, then you can expect the other party to follow up on that matter by trying to obtain witnesses or find documents opposing your view. So, if you are not asked about a matter, don't bring it up.
Although our role as your attorney will be limited at your deposition, if we do object to questions you should listen carefully to the objection we make. We may be trying to help you out on your answer. If, for example, we object that the question would call for you to speculate or guess, that means that we do not want you to be guessing at an answer while you are under oath. If you actually know what the answer is, you may go ahead and answer; but if you do not, and you would be required to guess, you are better off simply stating that you do not know the answer and you are unwilling to guess under oath. In addition, we might object that you have already answered the question in previous deposition testimony, and we objcc4L to your having to answer it again. This objection usually means that we think that your previous answer was good and complete, and we don't want you to deviate from it. Under those circumstances, it would usually be best for you to insist that you have already given a full answer and you cannot recall anything else, unless in fact there is something important which you remember and you did not bring out in your initial answer.
It is also possible that we will make an objection and at the same time instruct you not to answer the question. If we do that, do not answer the question.
With the above in mind, we will now turn to some specific instructions to help you do a good job in this important procedure.
1. Tell the truth.
2. Listen to the question. Answer that question and only that question - no more, no less. Resist the temptation to be helpful or get out your side of the story, or "fill in the blanks."
3. Do not answer a question that you have not heard completely; ask that it be repeated. Do not answer a question you do not understand, and do not be afraid to say that you do not understand. It is up to the examiner to frame intelligible questions; if he or she cannot do it, do not offer your help. Do not explain to the examiner that the question is incomprehensible because he or she has misunderstood words of art in your business trade or science. Do not help the examiner by saying "do you mean X" or "I think you mean."
4. Think about your answer before you respond to the question. This permits time for you to make sure that you understand the question and can prepare your answer properly. It also gives us time to object. If we feel an objection is important do not be embarrassed about taking your time in answering, no judge or jury is present. The transcript does not reflect how long you take to answer. If anyone comments that you are taking a long time to answer, just say you want to be sure your answer is accurate and complete. That is enough explanation for the opposing party.
5. Answer each question accurately, but as briefly as possible. Respond only to the question asked and do not, under any circumstances, volunteer information. The examiner is entitled to an answer to the question that is asked and only to that question. You are not there to educate the examiner. Do not make a speech. Do not try to explain why you did or said something. Do not try to appear friendly and helpful. This is not a social occasion, and it is not a game. The examiner's interests are often the exact opposite of your own; do not trust him or her, charming though he or she may be.
6. In connection with answering questions:
(a) Do not make up an answer, even though you think that it is what the answer probably is or ought to be.
(b) Do not guess, speculate or assume.
(c) Do not be afraid to say that you don't remember, if in fact you do not remember.
7. Do not argue with the examining attorney. Do not let him or her make you angry; anger can provoke people into saying things they do not mean. Do not try to make the examiner angry. If your attorney appears to be angry, that is not a signal for you to allow yourself to be angry. It may be just an act on his or her part.
8. Conversely, as already indicated, do not be taken in by the examining attorney. Be polite, but not friendly. It is a good technique for the opposing lawyer to appear to be friendly to you. On the other hand, keep in mind that the opposing attorney will make the best possible impression on his or her client if your case is completely demolished. Thus, do not believe that the opposing attorney is your friend.
9. Often lawyers will act as if they know nothing about a particular subject matter. Almost always, this is not the case. Usually, the lawyer has gone into the subject matter carefully, and knows quite a bit about it - do not be deceived by the opposing lawyer saying that he or she is really naive about your area of employment, or any other subject matter of your case. That kind of introduction is more likely a tip off that the other lawyer has done some serious studying about it, and should be a signal to you definitely not to volunteer information and answer only what you are being asked.
10. When there is a silence -- and this is very important -- do not try to fill the silence. Answer the question. Then be quiet. Do not be embarrassed by the silence. Do not try to expand on your answer. Sit there for 40 minutes of silence if that is what it takes. Wait for the next question.
11. Do not try to memorize your testimony.
12. Be as specific or as vague as your memory allows, but do not be put in a position contrary to your true recollection. If you are asked when something occurred and you remember that it occurred on January 15, answer "on January 15." If, on the other hand, you cannot recall the exact date, state the approximate date if you recall enough information to approximate a date. Otherwise, say you don't know.
13. Do not explain your thought processes as to how you reached the answer to a question. If your answer depends on your recollection of other facts not called for by the question, do not refer to those other facts in explaining how you answer the question. For example, if you are asked when a conversation with Jones occurred, and you recall that it had to be in December because you met Smith after Jones and that was in January, do not explain this thought process to the examiner. This is an example of volunteering information, which we generally discourage.
14. In testifying to conversations, make it clear whether you are paraphrasing or quoting directly.
15. In answering a question calling for a complicated series of events or extensive conversations, summarize these where possible. An examiner who is doing his or her job properly will ask for all the details. It is always possible, however, that the examiner will accept your summary and this is so much the better.
16. Never characterize your own testimony. "In all candor...," "honestly..., " "I'm doing the best I can...", are out, don't say these.
17. Avoid all adjectives and superlatives. "I never" or "I always" have a way of coming back to haunt you.
18. You only know what you have seen or heard. Questions are often phrased "do you know". A question in a deposition may legitimately call for something you do not know, but it must be so phrased. There is a difference between a question that asks "do you know", and a question that asks whether you have any information bearing on a particular subject.
19. Numerous documents may be marked as exhibits at a deposition. If you are asked about a document, read it before testifying. Do not make any comments whatsoever about the document, except in answer to a question that elicits your testimony.
20. If information is in a document that is an exhibit, ask to see the document before answering.
21. If information is in a document that is not an exhibit at the deposition, answer the question only if you can recall the answer. Do not tip off the examiner as to the existence of documents he or she does not know about. If you cannot answer the question without looking at a document that is not marked as an exhibit, you may simply answer the question by stating you do not recall. After a witness states he or she does not recall a fact that the examiner believes he or she should have knowledge of, the examiner may ask if there is a document that can refresh his or her recollection.
22. Sometimes an examining lawyer will ask you questions from a document but not let you see the document. It is dangerous to contradict what is stated in a document, unless the document is for some reason false. If you need the document to help you testify ask for it. If the lawyer won't give it to you make it clear that you feel you can't answer the question without having the document to refer to. If the lawyer still won't show it to you, tell the lawyer it's not fair for you to have to answer a question under oath without the document in front of you but that if he or she insists, you will do your best without it. Following this format insures that you will not later be impeached by contradictory statements in the document itself.
23. Do not let the examiner put words in your mouth. Do not accept the exarniner's characterization of time, distance, personalities, events, etc. Rephrase the question into a sentence of your own, using your own words.
24. Pay particular attention to the introductory clauses preceding the main portion of the question. Leading questions are often preceded by statements that are either half-true or contain facts that you do not know to be true. Do not let the examiner put you in the position of adopting these half-truths or unknown facts on which he or she will then base further questions.
25. If you have a flash of insight or recollection while testifying and this has not been previously discussed with your attorney, hold this to yourself, if possible, until you have had an opportunity to go over it with your attorney.
26. If you are interrupted, let the examiner or other lawyer finish his interruption and then firmly but courteously state that you were interrupted, that you had not finished your answer to the question, and then proceed with your answer.
27. Beware of any question that begins with "you have testified that...... Many witnesses simply assume that the attorney is repeating what was previously stated, and so they automatically agree with the characterization. But attorneys often use such an opportunity to recast your testimony in a light favorable to their side of the case. Accordingly, you should listen very carefidly to any such summary. If it does not accord precisely with what you did in fact testify to, simply state that the summary is incorrect, and ask for the question to be rephrased.
28. If You are finished with an answer and the answer is complete and truthful, remain quiet and do not expand upon it- Do not add to Your answer because the examiner looks at you expectantly. If the examiner asks you if that is all you recollect, say yes, if that is the case.
29. If your attorney objects to a question, listen to the objection very carefully. You may learn something about the question and how it should be handled from the objection.
30. Do not expect to testify without the other side scoring points. If the examiner asks questions that call for answers that do not help your case, recognize that every lawsuit has two sides; sit back and accept the unavoidable. Resist the temptation to guess, to expand on your answer where no expansion is called for, or, even worse, lie.
31. Avoid any attempt at humor or telling jokes. Jokes, sarcasm or irony simply do not come off well in a written transcript. Often the writing will look absolutely the opposite of what you expected.
32. Assume there is no such thing as "off the record." If you have any conversation with anybody in the deposition room, be prepared for questions on that conversation.
33. Every witness makes mistakes during a deposition. Do not become upset if you make one. If you make a mistake, you should correct it as soon as you realize it. If your correction would require new testimony on your part that you have not discussed previously with your attorney, ask for a break at the earliest convenient time. The record can be corrected later in the deposition. Also, mistakes may be corrected when you sign the transcript, although generally, you cannot substantively change your transcribed answers at the time you sign the deposition.
34. If you are asked whether you talked to anyone about your testimony, you should testify truthfully including that you talked with us about it. You cannot be asked about the content of our discussions because those are subject to the attorney-client privilege. It would not be truthful, however, if you omitted stating that you had spoken with us to prepare for your deposition, and it would also make us look bad because lawyers are always supposed to prepare their clients for depositions.
35. Any documents that you refer to in the deposition which you have used to refresh your memory or prepare for the deposition probably will be required to be produced to the opposing party. This means that under no circumstances -absolutely none -- should you bring a document into the deposition without first letting us know what you plan to bring. We may encourage you to bring some kinds of lists, such as dates referencing certain important events, places you have lived, jobs you have held, etc., but generally we discourage you from bringing any "home made" documents to the deposition. Our office once obtained the defense lawyer's strategy when the company president pulled the strategy paper out of his pocket to refer to it to refresh his memory on some questions. You must clear any document that you want to use in the deposition with us, before you use it.
36. The opposing lawyer will ask you for names and addresses of witnesses to events. If there is any witness whose name you are trying to protect, it is essential that we discuss this issue before you testify. If we know the witness exists, we can work on ways to preserve confidentiality. We can probably protect some witnesses but others we probably cannot. The rule, however, is that we must talk about them with you before your deposition.
37. You will probably be asked whether you have been involved in other lawsuits or ever been arrested or similar questions. Once again, you should prepare us for your answer. If it is something embarrassing to you, perhaps we can keep it out of your testimony. If you have not reviewed it with us and you are asked about something, then answer truthfully even if it is embarrassing. It is a lot less embarrassing to give a truthful answer than to be caught at trial with a lie or with covering up information.
38. It is essential that you re-read your complaint in your case before your deposition. You need to understand how you would prove all of the facts which you have alleged in your complaint. You also should understand the legal theories, even though you are not the lawyer and you are not really responsible for the theories. Finally, you should understand the damages which we are seeking in your complaint. Review those with us carefully and if you have any questions about them, please ask.
39. You may be asked about physical injuries or mental and emotional pain and suffering. You should not minimize the extent of your injuries when you are asked about them. Neither should you exaggerate as exaggeration probably works more against you than minimization. It is always good simply to be as descriptive as possible about injuries. The presentation of mental and emotional pain and suffering needs to be discussed with us before your deposition.
40. Certain things may be asked in your deposition which are personal, but which the opposing party is entitled to ask about. These may include:
(a) marital history; (b) educational background; (c) religious affiliation; (d) employment history including current and previous employment; (e) personal and family income; (f) previous residences; (g) any arrests or criminal convictions; (h) driving record in some cases.
41. If something happened at a particular place, it may be useful for you to revisit that place before your deposition. Sometimes you may be asked to diagram where or how an incident happened, or you May be asked to diagram where some things were in relation to others. Viewing the place in question before the deposition often helps.
42. Usually a final question will be asked which is whether you know of anything else that has not been brought out on a particular subject matter. Unless you know of something specific, you should not answer this question any way other than to say you do not recall anything at this time but that if you are asked a specific question you will try to answer it.
43. Remember that you may ask for a break at any time you want one. If you want to consult with your attorney, just ask for a break and then adjourn to a place where you can confer in private. Normally, an examining lawyer would not consider it acceptable for you to confer with your attorney while a question is pending. However, do not be intimidated if the examiner strenuously objects to you speaking with your attorney when you are asked a question you feel you simply cannot answer without conferring with counsel. Such a situation may arise, for example, where you are asked about an aspect of your business that you deem to be a trade secret or otherwise highly confidential, and you and your counsel had not previously discussed this.In that case, merely state that you cannot answer the question without first conferring with counsel and your attorney will take it from there. However, keep in mind that this is your deposition, not your attorney's. You do not want the written record to make it appear as though your attorney frequently was prompting Your answers. p Adequate preparation will generally avoid this problem, except for the occasional unforeseen instances, such as that described above.
Some people are tripped up by the following areas:
Old Claims or Injuries - As you know, computers these days contain about everything you've ever done. The insurance companies have access to most computer information, and they will dig up any and all insurance claims that you have ever made. They will also know about previous injuries that you have had, and they will know many of your medical conditions, especially those for which you may have made a health insurance claim. Nevertheless, the other lawyer will ask you in detail about these, hoping that you try to hide or misrepresent information about one of them. Again, if that happens, the lawyer will be able to point that out to the jury to try to prove that you are not a truthful person. When you are asked about prior claims, injuries or medical conditions, it is very important that you be as complete and accurate as you can be.
Arrests or Convictions - Again, the above advice about being complete and honest applies. All information about arrests or convictions is available, and I assure you that the insurance company will have that information. Don't try to hide such information or misrepresent it. If you do, the results will be fatal to your case.
3. Present Activities - They will be very interested to know if your activities before the accident have been affected by your injury. Sometimes a client will say that they cannot do a certain activity now, when what they really mean is that they don't do the activity very often or that when they try it they don't do it as well as they did before the accident. Be careful about that; you should say that you cannot do a certain activity only if you absolutely cannot, do not, and have not performed that activity. Remember, it is very common these days for the other side to “Spy” on you and film your activities with a video tape. They will then ask you on deposition whether you do certain activities that they have you doing on video tape. They will be delighted if you say you can't do that activity when they have the evidence that you can.
We know that you will not be able to remember all of these instructions, but we hope that most of it will seem like common sense to you. We strongly encourage your reviewing these instructions as often as you need, so that your deposition will be a positive experience and allow us to pursue your case toward an adequate settlement or a winning trial.
We all make mistakes sometimes. It's not that we intend to break the law - often times, we don't even know we did until papers are served or charges are pressed against us. If so, it's extremely important to take the right stance, and stand your ground.
A good criminal defense lawyer like Attorney Steven Johnson at Johnson Law Firm S.C., does just that.
Just imagine what could happen if you don't take "damage control" immediately: The second charges are pressed your life turns upside down. The faster you take action, the better your chances are that your criminal defense lawyer can save you from making major, irreversible mistakes.
What else does a skilled law expert like Attorney Johnson do for you?
An experienced criminal defense lawyer can sometimes prevent you from ever being taken into custody in the first place. He can also stop further incrimination by instructing you what to say when you're interrogated - and speak on your behalf against the prosecution by, for instance, effectively questioning defense witnesses and preparing cross-examination against the prosecution's witness.
But no matter how good Atty. Johnson does in the courtroom, most of your case is actually determined outside the court, before the trial. In fact, acting right now will enable you to prevent the vast majority of damage and take an early stance against what you stand to lose.
Call Johnson Law Firm S.C. if you face any criminal problems or charges now.
FAQ ABOUT YOUR CRIMINAL CASE?
Are all arrests the same?
No. In some arrests, you're charged with a crime, while in others you're not.
You're charged with a crime only if the possible penalty includes time in jail or prison. There's one exception, though: you may face jail time for failing to pay a fine or forfeiture, but this failure isn't considered a crime.
In most cases, traffic offenses and city, town, or county ordinance violations are not criminal offenses. Certain offenses can be charged as either ordinance or criminal offenses – for example, retail theft (shoplifting) or disorderly conduct. And some offenses are noncriminal for first time offenders but criminal for second time violators. The most common example of this is operating a motor vehicle while under the influence of intoxicants.
A monetary penalty for a crime is called a fine. For a noncriminal offense, it's called a civil forfeiture.
There are some other important differences between criminal and noncriminal cases. First, a criminal conviction may have a negative effect on your employment opportunities, school applications, professional licensing, and so forth. Second, in a criminal case, the prosecution must prove you guilty beyond a reasonable doubt – a stricter requirement than for a noncriminal case. Finally, you have more legal rights in a criminal case, such as the right to remain silent and the right to the assistance of an attorney. In a noncriminal case the prosecution can call you to the stand and force you to testify against yourself.
What happens if you're charged with a noncriminal offense?
If you're charged with an ordinance or traffic offense that is not a crime (such as speeding), you'll be given a citation. In most cases you won't be taken into custody. Police may not search you or your property without permission if you are not taken into custody for a noncriminal offense. The citation will usually give you a choice of paying a forfeiture or going to court. It will state a date for you to appear in court if you choose not to pay the forfeiture.
Your first court appearance is known as the arraignment, during which you enter a plea of "guilty," "not guilty," or "no contest."
The "no contest" plea means that you are not contesting the offense charged. The "no contest" plea will result in a conviction, but the conviction cannote be used against you in a lawsuit. For instance, let's say you have an auto accident. As a result of the accident, you're given a traffic citation for a violation. In this case you may want to plead "no contest," in case the other driver decides to sue you.
In most ordinance or traffic cases, when you plead "not guilty" you're given a pretrial date and a trial date. In noncriminal cases, you do not have an automatic right to a jury trial and pay the required fee within 10 days of your initial appearance, your trial will be held before the judge. At the pretrial you'll meet with the prosecutor and try to settle the case. For example, you may try to change a speeding charge to a lesser point violation.
If you can't resolve the charge at pretrial, you must appear at the trial. You may or may not want to have an attorney, depending upon the seriousness of the offense, the status of your driver's license, and so on.
If the judge finds you guilty and you don't pay the forfeiture by the deadline for payment, your driver's license may be suspended if the violation is for a traffic offense. Otherwise, you could be jailed or ordered to perform community service.
What happens if you're charged with a crime?
Usually you'll be taken into custody when you're arrested. The police may read you your rights, photograph you, and take your fingerprints. If you are arrested without a warrant, a judicial magistrate must determine whether there is enough probable cause to charge you, and this usually must be done within 48 hours of your arrest. The 48-hour rule does not appy to an arrest with a warrant, because a judicial determination of probable cause has already been made to support issuing the warrant.
Remember that you have two important rights: the right to remain silent and the right to a lawyer. If you are indigent, an attorney from the State Public Defender's office will be appointed. Police may not ask you any more questions if you claim either or both these basic rights. If you are unable to communicate with the court or your attorney because of a disability or a language barrier, an interpreter will be provided for you.
To be released from custody after your arrest, you must post bail. In some cases, you can do this by a signature bond (a written promise to appear in court). In other cases, you may be required to provide either a secured surety bond (you put up property, such as a car or house), or cash (which may be posted by you or someone else). In addition, the judge may impose other conditions on you that he or she deems reasonable to assure your appearance or protects members of the community.
If you're convicted of a misdemeanor, you may be imprisoned for up to one year. Any "time" you serve will be in the county jail or house of correction. A felony charge is much more serious, because it can mean a year or more in prison. In either case, it's very wise to consult an attorney. If you can't afford one, the judge will refer you to the State Public Defender's office.
What are the steps in a criminal case?
In either a misdemeanor or a felony case, you'll have an initial appearance. At this appearance, you'll be served with a criminal complaint that outlines the charge, the probable cause supporting the charge, and the penalty. In a misdemeanor case, you'll also enter a plea at the initial appearance. If you plead "not guilty" to a misdemeanor, you'll be given a trial date.
For a felony, the next step is the preliminary hearing. At this hearing the prosecution must present enough evidence to convince the judge that you should stand trial for a felony offense. If it's decided that your case will go to trial, you then attend an arraignment. At the arraignment, the district attorney will serve you with formal charges for a particular felony. At this time, you must enter a plea.
In both misdemeanor and felony cases, you have the right to a jury trial. The jury must consist of twelve people and the verdict must be unanimous. If you are convicted of a felony, you lose certain rights, including the right to possess firearms and the right to vote.
How does plea negotiation work?
In most cases, your attorney and the prosecutor will meet to discuss your case before it goes to trial. The prosecutor may offer to negotiate with your attorney.
There are many possible types of "plea agreements."
The prosecutor may offer a reduced charge. Or, if you're charged with several offenses, the offer may be to dismiss one or more charges or "read in" a charge (this means that you won't plead guilty to that charge, but the charge may be considered for sentencing). In return, you'll be expected to plead guilty or no contest to at least one offense. Sometimes the plea agreement will be a recommendation for a particular sentence. Or it may be an agreement that the prosecutor will make no sentence recommendation.
In any event, the judge does not have to honor the plea agreement. Your attorney and the judge must explain this to you. They must also explain all the possible results of a plea of guilty or no contest.
The judge will usually pronounce sentence immediately in a misdemeanor case. In a felony case, the judge may order a presentence investigation and set a separate sentencing date.
|How a Frisk Becomes a Legal Search -- And Possibly an Arrest |
When frisking a person for weapons, the police are attuned not only to the feel of possible weapons under clothing, but also to the feel of packaged drugs. Although a frisk may not turn up a weapon, it may turn up a suspicious package that the officer knows is commonly used to carry illegal drugs or some other illegal substance. This suspicion may turn into sufficient cause for a more intensive search of the person's clothing. The lesson here is that a frisk often leads to a search. And if a search produces an illegal substance, it may result in an arrest.
THE CRIMINAL LAW PROCESS:
The criminal justice process typically begins when a police officer places a person under arrest. An "arrest" occurs when a person has been taken into police custody and is no longer free to leave or move about. The use of physical restraint or handcuffs is not necessary. An arrest can be complete when a police officer simply tells a crime suspect that he or she is "under arrest", and the suspect submits without the officer's use of any physical force. The key to an arrest is the exercise of police authority over a person, and that person's voluntary or involuntary submission.
A police officer may usually arrest a person in the following circumstances:
The Police Officer Personally Observes a Crime
If a police officer personally sees someone commit a crime, the officer may arrest that individual.
- While on street patrol, a police officer sees a purse snatching take place. The officer can apprehend and arrest the purse-snatcher, based on the officer's personal observation of a theft/larceny or robbery.
- A police officer pulls over a vehicle that is being driven erratically, and after administering a Breathalyzer test, sees that the driver's alcohol intoxication level is more than twice the state's legal limit for safe operation of a vehicle. The police officer can arrest the driver for OUI/OWI.
The Police Officer Has "Probable Cause" to Arrest
When a police officer has a reasonable belief, based on facts and circumstances, that a person has committed or is about to commit a crime, the officer may arrest that person. This belief, known as "probable cause," may arise from any number of different facts and circumstances.
- A police officer receives a report of an armed robbery that has just occurred at a liquor store, then sees a man who matches the suspect's exact description running down the street near the store. The officer detains and searches the man, finding a gun and a large amount of cash in his pockets. The officer can arrest the man, based on a probable cause belief that he committed a robbery.
If An Arrest Warrant Has Been Issued
When a police officer has obtained a valid warrant to arrest a person, the arrest is lawful. An arrest warrant is a legal document issued by a judge or magistrate, usually after a police officer has submitted a sworn statement that sets out the basis for the arrest. When issued, an arrest warrant typically:
- Identifies the crime(s) committed;
- Identifies the individual suspected of committing the crime;
- Specifies the location(s) where the individual may be found; and
- Gives a police officer permission to arrest the person(s) identified in the warrant.
Challenging An Unlawful Arrest:
At all stages of the criminal process, including arrest, police officers must protect citizens' constitutional rights, such as the right to remain silent and the right to be free from unreasonable searches. If these rights are violated, a court may deem the arrest unlawful and order the case against the arrestee dismissed, or certain evidence may be thrown out of the case. The fact is that this is very rarely a sucessful defense. While a criminal suspect may question the lawfulness of an arrest when it is happening, including the basis for the arrest and the actions of the police officers, that battle is best fought later in court rather than on the scene and right there on the street. Because police officers are generally professionally trained at legally placing suspects under arrest and justifying their reasons for having probable cause to arrest, one should not resist arrest or obstruct justice by interveining in another's arrest. This issue is best left to be determined in the courtroom as well.
Police Questioning Prior to Arrest
If you haven't been arrested, but a police officer wants to question you about a crime, what should you do? Here are some tips.
Refusing to answer a police officer's questions is not a crime. Of course, people often voluntarily assist the police by supplying information that might help the police make an arrest. But the Fifth Amendment to the U.S. Constitution guarantees the "right of silence." A police officer generally cannot arrest a person simply for failure to respond to questions. This means that unless a police officer has "probable cause" to make an arrest or a "reasonable suspicion" to conduct a "stop and frisk," a person approached by the police officer has the legal right to walk away. But the fact that there may be a legal right to walk away doesn't mean this is a wise move.
This is because there is no real way to tell what information the officer is using as a basis for his or her actions. In fact, the officer may have information that gives him or her a valid legal basis to make an arrest or to conduct a "stop and frisk," even if the individual is, in truth, innocent of any wrongdoing. If that is the case, an officer may forcibly detain an innocent individual who starts to leave the scene of an interview.
Common sense and self-protection suggest that people who intend to walk away from a police officer make sure that the officer does not intend to arrest or detain them. A good question to ask an officer might be, "Officer, I'm in a hurry, and I'd prefer not to talk to you right now. You won't try to stop me from leaving, right?" If the officer replies that the person is not free to leave, the person should remain at the scene and leave the question of whether the detention is correct to the courts at a later time.
Even though, as a general rule, a person doesn't have to respond to a police officer's questions, this may not hold true if the officer suspects the person of loitering. Laws in effect in many states generally define loitering as "wandering about from place to place without apparent business, such that the person poses a threat to public safety." Under these laws, if a police officer sees a person loitering, the officer can demand identification and an explanation of the person's activities. If the person fails to comply, the officer can arrest the person for loitering. Therefore, the refusal to answer questions is a problem only if the officer has also observed the person loitering.
Another situation where answers to police questions are usually required is when drivers are stopped for suspected traffic violations. Traffic offenses such as speeding and unsafe lane changes are generally classified as "infractions," for which drivers are given citations in lieu of arrest. However, an officer has the right to demand personal identification -- usually a driver's license and the vehicle registration. A driver's refusal to supply the information elevates the situation to a more serious offense, for which the driver usually can be arrested. The simple refusal to answer questions is not a crime, but the refusal to supply identification, combined with the suspected commission of a traffic offense, is.
Miranda Warnings and Pre-Arrest Questioning
People are often surprised to learn that if a person hasn't yet been arrested, the police may question the person and use the answers in court without first providing the familiar "Miranda warning" that advises people of their constitutional right to not answer questions and to have an attorney present if they do decide to talk to police officers. In fact, the Miranda warning is required only if the person being questioned is in custody.
Deciding Whether to Answer Pre-Arrest Questions
Whether or not to respond to police questioning generally depends on the person's possible relationship to criminal activity, the person's views of his or her civic responsibilities, and the person's past experiences with the police. If, however, the questioning involves events that may result in criminal charges against the person being questioned, the almost universal advice of defense attorneys is to keep the old mouth tightly shut. Suspects all too frequently unwittingly reveal information that can later be used as evidence of their guilt. The right to not incriminate oneself guaranteed by the Fifth Amendment to the U.S. Constitution is especially powerful in this situation. A person who has reason to believe that he or she is a potential suspect should politely decline to answer questions, at least until after consulting an attorney.
Police Questioning Prior to Arrest
The Right of the Police to Conduct A Stop and Frisk
A police officer may stop a person in order to question them if the officer has a "reasonable suspicion" that the person is engaged in criminal activity. And for self-protection, the officer can at the same time carry out a limited pat-down search for weapons (a "frisk").
In two cases decided in the 2000 term, the U.S. Supreme Court interpreted the "stop and frisk" rule. In one case, the Court ruled that running away from the police is enough of a reason for the police to stop and frisk the defendant. In another case the Court ruled that an anonymous tip that a suspect might be armed was insufficient justification for the police to conduct stop and frisk, absent other facts demonstrating the reliability of the tip. (Florida v. J.L, No. 98-1993 (March 28, 2000). )
After the arrest, booking, and initial bail phases of the criminal process, the first stage of courtroom-based proceedings takes place -- your initial appearance. During a typical initial appearance, a person charged with a crime is called before a criminal court commissioner or judge, who:
- Reads the criminal charge(s) against the person (now called the "defendant") unless this formal reading is waived [which is typical];
- Asks the defendant if he or she has an attorney, or needs the assistance of a court-appointed attorney; Based on income, State Public Defenders or Dean [Court County] appointed attorneys may be applied for.
- In Misdemeanor initial appearances, the court commissioner asks the defendant [or defedant's attorney] how he or she answers, or "pleads to", the criminal charges -- "guilty," "not guilty," or "no contest"; Generally at this juncture in the proceeding a "not guilty" plea is initially entered which usually changes if and once plea negotiations are sucessful.
- The judge or court comissioner also decides whether to impose or alter the bail amount or to release the defendant on his or her own recognizance by allowing a signature bond. (Note: These matters are usually revisited even if addressed in prior proceedings); and
- Finally the judge/court comissioner then announces the dates of the future proceedings in the case, such as the preliminary hearing, arraignment, any pre-trial motions if necessary, and pre-trials or status conferences and finally a jury or bench [judge] trial.
Also at the preliminary hearing [usually if waived], the prosecutor will usually give the defendant and his or her attorney copies of [discovery] police reports and any other documents relevant to the case. For example, in a DUI/DWI or drug possession case, the prosecutor may provide the defense with lab reports of any blood or chemical tests that were performed, and may be used in the case.
The Right to Counsel
If a criminal defendant faces the possibility of jail time if convicted for the crime(s) charged, the defendant has a constitutional right to the assistance of an attorney, or "counsel." If the defendant wishes to be represented by an attorney but cannot afford to hire one, a government-appointed attorney will be assigned at no cost to the defendant. Usually employed as "public defenders", these government-appointed defense attorneys are responsible for zealously protecting a criminal defendant's rights at all stages of the criminal process.
Usually held prior to an arraignment, a preliminary hearing is best described as a "trial before the trial" at which the judge decides, not whether the defendant is "guilty" or "not guilty," but whether there is enough evidence to force the defendant to stand trial. In making this determination, the judge uses the "probable cause" legal standard, deciding whether the government has produced enough evidence to convince a reasonable jury that the defendant committed the crime(s) charged.
What to Expect at the Preliminary Hearing
In reaching this probable cause decision, the judge listens to arguments from the government (through a government attorney, or "prosecutor"), and from the defendant (usually through his or her attorney). The prosecutor may call witnesses to testify, and can introduce physical evidence in an effort to convince the judge that the case should go to trial. The defense usually cross-examines the government's witnesses and calls into question any other evidence presented against the defendant, seeking to convince the judge that the prosecutor's case is not strong enough, so that the case against the defendant must be dismissed before trial.
The vast majority of criminal cases are resolved through a "plea bargain", usually well before the case reaches trial. In a plea bargain, the defendant agrees to plead guilty, usually to a lesser charge than one for which the defendant could stand trial, in exchange for a more lenient sentence, and/or so that certain related charges are dismissed. For both the government and the defendant, the decision to enter into (or not enter into) a plea bargain may be based on the seriousness of the alleged crime, the strength of the evidence in the case, and the prospects of a guilty verdict at trial. Plea bargains are generally encouraged by the court system, and have become something of a necessity due to overburdened criminal court calendars and overcrowded jails.
What Kind Of Plea Bargain Might Be Made?
To illustrate how a "plea bargain" might be reached in a criminal case: suppose Dan is arrested and charged with two counts of aggravated assault/battery, based on his alleged use of a baseball bat in a street fight. A "plea bargain" might be reached in Dan's case in one of three ways:
- The prosecuting attorney handling the case approaches Dan and his attorney, and offers to allow Dan to plead guilty to a less serious charge, such as simple assault/battery or even disorderly conduct; or
- Dan agrees to plead guilty to one charge or "count" of aggravated assault/battery, in exchange for dismissal of the second count; or
- The government's evidence against Dan is so strong, and the injuries suffered by the assault victim so serious, that Dan agrees to plead guilty to the original charge of aggravated assault/battery, in exchange for a less severe sentence than he would likely receive if a jury found him guilty at trial.
After the preliminary hearing and before a criminal case goes to trial, the prosecutor and the defense team usually appear before a criminal court judge and make pre-trial motions -- arguments that certain evidence should be kept out of the trial, that certain persons must or cannot testify, or that the case should be dismissed altogether.
Pre-trial motions are tools used by the government and the defense in an effort to set the boundaries for trial, should one take place: What physical evidence and testimony can be used? What legal arguments can and cannot be made? Is there any reason that the defendant should not be forced to stand trial?
What Arguments are Made During Pre-Trial Motions?
While specific possibilities are endless, following are some examples of pre-trial motions that might be made in a criminal case:
- In a drug possession case, the defense asks the judge to "exclude," or keep out of the case, drug paraphernalia that the defense argues was obtained through an illegal search of the defendant's apartment.
- The defense argues that the defendant's confession should be excluded, because it was made in response to questions from a police officer who failed to first read the defendant his Miranda rights.
- The prosecutor argues that one of the defendant's key witnesses, an elderly neighbor with Alzheimer's disease, is not legally competent to testify and should be excluded as a witness at trial.
- The defense asks the judge to dismiss the case against the defendant altogether, arguing that the police did not have "probable cause" to arrest the defendant in the first place, or that insufficient evidence exists for any reasonable jury to find the defendant guilty.
In a criminal trial, a jury examines the evidence to decide whether, "beyond a reasonable doubt," the defendant committed the crime in question. A trial is the government's opportunity to argue its case, in the hope of obtaining a "guilty" verdict and a conviction of the defendant. A trial also represents the defense's chance to refute the government's evidence, and to offer its own in some cases. After both sides have presented their arguments, the jury considers as a group whether to find the defendant guilty or not guilty of the crime(s) charged.
(Note: Although a trial is the most high-profile phase of the criminal justice process, the vast majority of criminal cases are resolved well before trial -- through guilty or no contest pleas, plea bargains, or dismissal of charges.)
A complete criminal trial typically consists of six main phases, each of which is described in more detail below:
- Choosing a Jury
- Opening Statements
- Witness Testimony and Cross-Examination
- Closing Arguments
- Jury Instruction
- Jury Deliberation and Verdict
Choosing a Jury
Except for rare cases that are heard only by a judge, one of the first steps in any criminal trial is selection of a jury. During jury selection, the judge (and usually the plaintiff and the defendant through their respective attorneys) will question a pool of potential jurors generally and as to matters pertaining to the particular case -- including personal ideological predispositions or life experiences that may pertain to the case. The judge can excuse potential jurors at this stage, based on their responses to questioning.
Also at this stage, both the defense and the prosecution may exclude a certain number of jurors, through use of "peremptory challenges" and challenges "for cause." A peremptory challenge can be used to exclude a juror for any non-discriminatory reason, and a challenge for cause can be used to exclude a juror who has shown that he or she cannot be truly objective in deciding the case:
- After Juror "A" answers "yes" when asked whether she feels that "street" drugs should be legalized, the prosecution can most likely exclude her for cause from the pool of jurors in a drug possession case, as she has indicated a bias against drug laws.
- The defense can use a peremptory challenge to exclude Juror "B" from the jury pool in a case where a police officer was an assault victim, after it is learned that the juror has two brothers who are police officers. Even if Juror "B" adamantly states that she can remain objective in her assessment of the case, the defense may excuse her without declaring any grounds for doing so.
Once a jury is selected, the first "dialogue" at trial comes in the form of two opening statements -- one from the prosecutor on behalf of the government, and the other from the defense. No witnesses testify at this stage, and no physical evidence is ordinarily utilized.
Because the government has the "burden of proof" as to the defendant's guilt, the prosecutor's opening statement is given first and is often more detailed than that of the defense. In some cases, the defense may wait until the conclusion of the government's main case before making its opening statement. Regardless of when opening statements are made, during those statements:
- The prosecutor presents the facts of the case, from the government's perspective, and walks the jury through what the government will try to prove -- what the defendant did, how, and why.
- The defense gives the jury its own interpretation of the facts, and sets the stage for rebutting key government evidence and presenting any legal defenses to the crime(s) charged.
Witness Testimony and Cross-Examination
At the heart of any criminal trial is what is often called the "case-in-chief," the stage at which each side presents its key evidence to the jury.
In its case-in-chief, the government methodically sets forth evidence in an attempt to convince the jury beyond a reasonable doubt that the defendant committed the crime. It is at this point that the prosecutor calls eyewitnesses and experts to testify. The prosecutor may also introduce physical evidence, such as photographs, documents, and medical reports.
Whether a witness is called by the government or the defense, the witness testimony process usually adheres to the following timeline:
- The witness is called to the stand and is "sworn in," taking an oath to tell the truth.
- The party who called the witness to the stand questions the witness through "direct" examination, eliciting information from the witness through question-and-answer, to strengthen the party's position in the case.
- After direct examination, the opposing party has an opportunity to question the witness through "cross-examination" -- attempting to poke holes in the witness's story, attack their credibility, or otherwise discredit the witness and his or her testimony.
- After cross-examination, the side that originally called the witness has a second opportunity to question him or her, through "re-direct examination," and attempt to remedy any damaging effects of cross-examination.
After the government concludes its case-in-chief, the defense can present its own evidence in the same proactive manner. However, in some cases the defense may choose not to present a "case-in-chief," instead deciding to make its key points through cross-examination of the government's witnesses, and challenges to its evidence.
Once the prosecution and defense each have had an opportunity to present their case and to challenge the evidence presented by the other, both sides "rest," meaning that no more evidence will be presented to the jury before closing arguments are made.
Similar to the opening statement, the closing argument offers the government and defense a chance to "sum up" the case, recapping the evidence in a light favorable to their respective positions. This is the final chance for the parties to address the jury prior to deliberations, so in closing arguments the government seeks to show why the evidence requires the jury to find the defendant guilty. In turn, the defense tries to establish that the government has fallen short of its "burden of proof," so that the jury must find the defendant "not guilty."
After both sides of the case have had a chance to present their evidence and make a closing argument, the next step toward a verdict is jury instruction -- a process in which the judge gives the jury the set of legal standards it will need to decide whether the defendant is guilty or not guilty.
The judge decides what legal standards should apply to the defendant's case, based on the criminal charges and the evidence presented during the trial. Often, this process takes place with input and argument from the prosecution and defense. The judge then instructs the jury on those relevant legal principles decided upon, including findings the jury will need to make in order to arrive at certain conclusions. The judge also describes key concepts, such as "guilt beyond a reasonable doubt," and defines any crimes the jury may consider, based on the evidence presented at trial.
For example, if the defendant has been charged with voluntary manslaughter, the judge may:
- Define the elements of voluntary manslaughter, the charged crime;
- Define the elements of related crimes such as involuntary manslaughter and second-degree murder; and
- Set out the findings the jury would need to make in order to convict the defendant of each of those crimes.
The case then goes "to the jury."
Jury Deliberation and Verdict
After receiving instruction from the judge, the jurors as a group consider the case through a process called "deliberation," attempting to agree on whether the defendant is guilty or not guilty of the crime(s) charged. Deliberation is the first opportunity for the jury to discuss the case, a methodical process that can last from a few hours to several weeks. Once the jury reaches a verdict, the jury foreperson informs the judge, and the judge usually announces the verdict in open court.
Most states require that a jury in a criminal case be unanimous in finding a defendant "guilty" or "not guilty." In such states, if the jury fails to reach a unanimous verdict and finds itself at a standstill (a "hung" jury), the judge may declare a "mistrial," after which the case may be dismissed or the trial may start over again from the jury selection stage.
WISCONSIN OWI DRUNK DRIVING CASES:
A PRIMER FOR THE LAYPERSON
Table of Contents
PRISONS AND CHECKPOINTS:
WHAT PRICE SAFETY IN A FREE SOCIETY?
YOU WILL NEED A LAWYER:
HOW TO PICK A GOOD LAWYER AND
HOW TO TELL A BAD LAWYER.
THE SIX KEY FACTORS
IN A DRUNK DRIVING CASE
Factor One: Did The Police Follow The Rules?
Factor Two: The Story of Your Day
Factor Three: The Driving
Factor Four: Your Behavior
Factor Five: The Chemical Test
Factor Six: You!
THE TWO-PRONGED STRATEGY OF DRUNK-DRIVING DEFENSE
This is not meant to provide you with legal advice. Nor is it meant to be a do-it-yourself manual on how to handle a drunk driving case. This is a manual for the client, the person charged with drunk driving, not for the person who wants to be his own lawyer.
You will need a lawyer, and this will help you to choose one.
Finally, this book contains no technical information on drunk driving law or chemical test technology. Drunk driving law and procedure is different in every state. The law and technology of drunk driving prosecution, like everything else around us, is changing very rapidly. This book is an aid to obtaining and understanding good legal advice, but any specific questions must be directed to your lawyer. This little book contains general principles of analysis and defense of the drunk driving case, for the layperson. I hope that you will find it beneficial.
Feel free to contact me for more information, or an online case evaluation. And, please don't drink and drive
PRISONS AND CHECKPOINTS: WHAT PRICE SAFETY IN A FREE SOCIETY?
America is a land of extreme contradictions: rich and poor, the freest with the most prisoners, and the most committed to liberty with some of the most repressive attitudes.
We certainly live in a very dangerous society. Handguns are one of the leading causes of death among young men.
People are afraid, and politicians prey on that fear. Legislation has been proposed in my state to legalize police highway checkpoints, already legal in forty states. HIGHWAY CHECKPOINTS!! Politicians always look for easy answers; but, they are often unwilling to make hard decisions to protect us.
There is no question but that one of the great sources of danger in our society is the automobile. More Americans are killed each year in car accidents than Americans died in the War in Vietnam. Most fatal accidents involve alcohol. But despite the vast war on drunken drivers, highway safety has not been dramatically improved. Politicians will always take the easy steps of increasing penalties and restricting individual liberty, rather than taking the hard steps of limiting the proliferation and legal immunity of taverns, and funding rehabilitative programs. The society that glorifies alcohol finds it easiest to deal with the damage by imprisoning the drinker. If the present rate of increase continues, within this century the majority of the population of the USA will be in prison.
When the constitutional liberty of a single one of us is trampled in the name of public safety, we all suffer from a loss of freedom. I do not support drinking and driving. It is a reprehensible evil, just as is murder. But I object to the suspension of human rights that has occurred in the name of the unsuccessful war on driving while intoxicated.
In my state, which is festooned with saloons, a simple dram shop law (requiring tavern keepers to accept their responsibility for pushing alcohol on their drunken patrons) would do more than all the jail cells and highway checkpoints combined. But the legislature lacks the spine to stand up to the special interests.
This little handbook on drunk driving is, therefore, intended to be one man’s statement in support of the right to be left alone, to be free of unreasonable searches, to a presumption of innocence, to a fair trial, a fair verdict and, yes, if you deserve it, a fair punishment.
If you’ve been arrested for drunk driving, especially if it’s happened more than once, it probably means that you had an alcoholic beverage and then drove a car. That is a terrible error in judgment. Whether or not you believe that you need it, GET HELP!!
I’m insisting on this even if you are innocent of drunken driving. I don’t care if you were stone cold sober, its stupid and dangerous to drink and drive. It shows a lack of knowledge and a lack of judgment. You could kill or maim yourself or do the same to someone’s son, daughter, mother or father.
Stop and consider the consequences of a drunk driving arrest, which is inconvenient and expensive even if you win the case. Then, consider the price of a taxicab. It’s a no-brainer. If God wanted you to drink and drive he wouldn’t have invented the taxicab.
You also need to take an honest look in the mirror and ask yourself whether you have a drinking problem. Whether or not you have a drinking problem, you need to get help with your understanding of the problem of alcoholism. Go to A.A. meetings. You may or may not be an alcoholic, but everyone can benefit from the advice and insights available at a twelve-step group.
So, even if you don’t believe that you need it, get help! Use this challenge as an opportunity to improve your life.
DO I NEED A LAWYER?
HOW TO PICK A GOOD LAWYER AND HOW TO TELL A BAD LAWYER.
HOW MUCH DO LAWYERS CHARGE?
If you’ve been arrested for drunk driving, don’t even think about proceeding without a lawyer. A person who represents himself or herself in court has a fool for a client.
You need a good lawyer, even if you're guilty.
First, even if you believe that you're guilty, you're still legally presumed innocent. A good lawyer can evaluate the strength of the proof against you in ways that you cannot do yourself.
Second, a major issue in every case is whether the police overstepped their bounds and unlawfully stopped, arrested, tested and charged you. A good lawyer will evaluate whether you were treated properly. If your rights were violated, there may be no case against you.
Finally, the help of a good lawyer is critical in limiting the damage that an OWI case can have on your family, your life and your livelihood. A good lawyer will direct you to the help and counseling that you may need to rebuild and restore your life after the damage of alcohol and an OWI case. Of course a good lawyer can minimize the penalties such as jail and revocation.
There are various different kinds of lawyers out there, and you will need to know how to choose. In general, you will find the following:
Expensive criminal and owi lawyers
Extremely expensive criminal and owi lawyers
Avoid the discount lawyer. You will get only what you pay for, and that won’t be much. Discount lawyers make their money by a handling high volume of cases or by maintaining unreasonably low office overhead (no secretary, etc). These lawyers are not skilled in analyzing and defending cases. Rather, they are skilled in quickly disposing of cases by guilty plea, to maintain their profit margin. Be skeptical of any lawyer who charges a retainer less than $1500.00 on a first offense, and $2000.00 on a second offense. Often, if it it a first offense, such a lawyer will do nothing more than preside over a guilty plea, something that you can do yourself. If you want to fight your case, make sure that you get a lawyer that has a proven record of winning drunk driving cases.
Avoid the general practitioner, that is, the lawyer who does some criminal work but also handles real estate, probate, divorce, wills, etc. Such a lawyer may be reasonably priced (with fees in the $1500-$2000 range), but will lack the specialized knowledge and skill necessary to defend a drunk driving case. This may be true even if the lawyer handles a significant number of drunk driving cases. Most likely, few of these cases are fought rather than plea-bargained. Further, a lawyer who has a reputation as a fighter tends to be able to negotiate the better plea bargains, when necessary.
You are far better off with a public defender (if you qualify for such representation) than a discount lawyer or a general practitioner. Although public defenders are often overworked, they are skilled and dedicated specialists.
You may wish to hire the most pre-eminent criminal defense lawyer you can find. Look for a lawyer who has held prominent positions in the bar association. Look for a lawyer recommended by not one, but several other lawyers. Look for a lawyer who is active in the NACDL, the National Association of Criminal Defense Lawyers. With a little research, you will be able to find the Johnny Cochran, F. Lee Bailey or Barry Scheck of your city. If you live in a smaller community, which does not support criminal defense specialists, it makes sense to go to the nearest large city. Expect these kinds of lawyers to charges retainers in the range of $10,000.00 and up, with substantial additional fees for trial, and more if it is for a repeat offense with a substantially enhanced penalty. Be aware, however, that some of the more famous criminal lawyers may not be experienced in drunk driving cases, as these are seen as too minor. So, make sure that you get a lawyer who understands the intricacies of a drunk driving case.
It is wise to choose a reasonably priced drunk driving defense specialist (still expensive compared to a general practitioner). Look for a lawyer that focuses on drunk driving cases, not a lawyer that handles all types of criminal cases. These lawyers will not handle non-litigation matters, such as wills, probate, real estate, incorporation, etc. These lawyers ought to have extensive experience in OWI law, and understand the special complexities of a drunk driving case. In fact, these lawyers will usually be far more experienced in OWI cases than the ultra-high priced pre-eminent criminal lawyers. These lawyers may charge retainers in the $5000.00 to $7500. 00 range, depending on the severity of the offense, with additional fees for trial. These lawyers should also be active and recognized in local and national criminal defense organizations such as their state bar and NACDL. Again, get a lawyer who has extensive experience in the trial by jury of drunk driving cases.
If you are going to fight your case, always get a lawyer who uses the latest courtroom technology. Digital photos, digital videos and PowerPoint presentations are a powerful winning courtroom technique.
It is very wise to get a lawyer who is active in the National College for DUI Defense. www.ncdd.com
Get the best lawyer you can afford, not the cheapest one you can find. If you can’t afford a qualified lawyer, a public defender is a far better choice than a discount lawyer or a general practitioner.
You should be able to schedule a free initial consultation, where the lawyer should spend between one-half hour and one hour with you discussing your case. The discussion should include a recitation by you and brief analysis by the lawyer of the following issues (although not necessarily stated in this order or format): Or you may start with the kind of online case evaluation offered at my website.
THE SIX KEY FACTORS IN A DRUNK DRIVING CASE
Most people, including some lawyers who should know better, believe that if you are stopped for drunk driving and fail a breath or blood test, that you don’t have a chance to win. Certainly, drunk driving cases are difficult to win. In my twenty-two years as a trial lawyer I have fought and won many of them (and lost a few, too), including cases with very high blood or breath test results. Winning a drunk driving case requires a careful investigation of all of the facts, not just the facts that the police have reported. In order to analyze a case, I have developed what I call The Six Key Factors in a drunk driving case. These are the factors that I consider in fighting a drunk driving case in the only way that a drunk driving case can be effectively fought: the jury trial.
These factors cover the actual facts, not just the facts in the police reports. When a policeman makes a drunk driving (or any) arrest, he is required to fill out various reports detailing his observations. In drunk driving cases these forms may be fill-in-the-blank, or they may be in the form of a narrative. In almost all cases, the officers focus a few facts and ignore the rest. For example, they may note that you stumbled in the “walk and turn” test, but they will fail to mention that you had no other difficulties in your balance. So, winning a drunk driving case requires a careful review of The Six Factors.
Factor One: Did The Police Follow The Rules?
Whether or not you are guilty may be one of the least important factors in your case. That's because of the exclusionary rule, a rule of law designed to protect the most important and precious of our civil liberties: the right to be free from unreasonable stops, seizure, search and arrest. In a free society the police must operate under strict rules that prevent them from stopping and arresting you without a proper legal basis. Too often, the police act on a mere hunch or suspicion, without adequate evidence. When that happens, the evidence they get as a result of their unlawful behavior may not be used in court, even if it shows that you are guilty.
So, the first thing a good lawyer will do is a careful analysis of all of the facts that went into the police officer's decision to stop, question, test and arrest you. A good lawyer will always take any opportunity to challenge the legality of the police decision to pull you over, make you do field sobriety tests, make you take a preliminary breath test, arrest you or make you take a chemical test. Do not assume that just because you "flunked" a blood or breath test, that the test result can be used against you; because, a good lawyer may be able to keep it out.
Just as the defense of a drunk driving case requires a lawyer who is specially trained and experienced, so does the investigation and arrest of a drunk driving suspect. Many police, but certainly not all police, have received this special training, and are certified in "DWI Investigation and Standardized Field Sobriety Testing." Often the police officer that arrested you has not been trained or certified. What's worse, even with a trained and certified officer, the investigation and field sobriety testing are often done wrong.
A good DUI defense lawyer will know far, far more about DUI investigation and field sobriety testing than even a certified police officer. The police officer's manuals are readily available, and every good DUI lawyer will have them on his bookshelf and have them virtually memorized.
The police have rules and procedures that they are supposed to follow. An experienced and trained lawyer will know these procedures better than the police. If the police make a mistake (which they often do) your lawyer should see it.
Factor Two: The Story of Your Day-The Theme of Your Case
Obviously, whether or not you are intoxicated depends on whether or not you have consumed an excessive amount of alcohol. Therefore, the story of your day is very important, because it includes your alcohol consumption. The details are important because the truth often lies in the smallest fact.
What did you eat? Where did you go? Where were you coming from? Who were you with? And yes, what did you have to drink? This information is necessary to determine whether you were intoxicated, whether there are witnesses to support you or whether the chemical test result may be flawed.
Chemical tests of breath and blood can be flawed and unreliable. So if possible, it is important to locate any credible witnesses to document your actual alcohol consumption. Be aware that this may be possible using charge card records, as well.
Likewise, alcohol hits harder on an empty stomach. So if possible, it is important to document what you had to eat.
The prosecutor will have a simple two-word theme for why you should be found guilty: drunken driving. The sheer simplicity of these two words is very powerful. Your lawyer should use the story of your day to develop a simple, powerful theme of your case. Every case is different so no one theme will fit all cases; but a good lawyer will develop your theme. It might be "Bad Cop," or "Honestly Mistaken Cop," or "Rush To Judgment."
Factor Three: The Driving
Police will usually try to report in detail on the driving violations that led to the initial stop of your vehicle. The prosecutor will argue that these violations are evidence of the impaired judgment and coordination of intoxication. Of course, that it often not the case. The police will often stop cars for slight or invalid cause.
Why were you stopped? What was it about your driving or car that drew the attention of the police? Was it a burnt out license plate light? Was it speeding, three miles per hour over the limit? Or, was it severe unsafe lane deviations? Was there an accident? Many times, people are arrested for drunk driving, when the initial stop was due to some factor unrelated to alcohol consumption. Often times a stop occurs on some pretext, which has nothing to do with impaired driving. Unfortunately, it is undeniably true that racial minorities are stopped far more often on such pretexts (Emerge magazine has called this “DWB,” or driving while black). It can also be said that an old rusty car is a far more likely target of an unreasonable stop (this might be called “DWB,” or driving while broke).
It is also undeniably true that police watch restaurants and taverns, and stop people leaving those establishments, especially around or after midnight.
Some driving may, at first blush, appear to be erratic, when in fact it is not. For example, police like to stop people for “weaving within the lane.” What does that mean? As long as you stay in your lane, you are not weaving, right? Another, similar pretext is for an unduly wide exit to a turn. In many situations, however, a wide exit from a turn is the only proper or safe maneuver, even if it crosses traffic lanes.
Every person who drives a car knows that most people drive about five miles per hour over the speed limit. Low level speeding, or a similar traffic violation, may give the police the right to stop you, but it is definitely not evidence of intoxication.
Similarly, if you were in an accident, was it your fault? It is critical to show that whatever driving errors you made were not the result of alcohol-related impairment.
Factor Four: Your Behavior
Observation, and the lack of observation, of your behavior are crucial. This includes your behavior from the moment you are stopped and first observed by the police, to the moment when the observations stop, usually when you leave the police station.
Police are trained to observe. Yet in most drunk driving cases, their observations are limited to your driving and the field sobriety tests. To properly analyze a drunk driving case, all of your behavior should be considered, from the first moment you were stopped.
The field sobriety tests, to put it bluntly, are unfair. A very high percentage of stone-cold sober people cannot successfully perform the field sobriety tests. Many trained police officers, when asked to demonstrate the tests in front of a jury, will fail (or cheat, e.g. keep their eyes open on the finger-to-nose test). Jurors who attempt to do these tests during deliberation will often fail. So, it is important to consider all of your behavior, not just you field sobriety tests.
I will mention the most common field sobriety tests, but only in passing. These are the one leg stand, walk-the-line, finger-to-nose and eye test (horizontal gaze nystagmus test). The United States Department of Transportation, National Highway Traffic and Safety Administration publishes various manuals on how these tests should be performed, as do many state and local police departments. Nevertheless, it is common for the police to depart from proper test format, or to grade on irrelevant factors. For example, a subject will be told to recite the alphabet clearly, with no mention made of speed of recitation, but will be marked as failing if the recitation is slow. Another example would be to fail a subject who sways when performing the finger-to-nose test, even though the fingertip is touched correctly to the nose. These tests are usually performed under the worst of circumstances: in poor lighting, uneven pavement, poor weather, in improper clothing, etc. Further, a subject may be arrested for failing a single field sobriety test, after having passed a series of previous tests. A skilled lawyer will be able to show the unfairness of the field sobriety tests and direct the jury’s attention to all of the defendant’s behavior consistent with sobriety.
The other standard observations that are made in virtually all drunk driving cases are bloodshot eyes, slurred speech and odor of alcohol. Again, a skilled lawyer understands how to show a jury that these observations are often fabricated, exaggerated, inconclusive and taken out of context. Bloodshot eyes, for example, may be due to contact lenses, cigarette fumes, fatigue or may be the subject’s normal appearance. The police have usually no prior experience with a subject or a subject’s voice, so the subject’s normal tone or accent (especially in the Milwaukee or Chicago area) may sound slurred. Similarly, the odor of alcohol may indicate recent alcohol consumption, but cannot indicate the amount consumed.
It is necessary to show the jury the entire picture of your behavior, not just the police observations which are taken out of context.
Did you pull over promptly, safely and in a controlled manner when the police activated their lights and siren? Were you able to produce your driver’s license without fumbling? Were you able to get out of your car without difficulty? Were you able to walk to the area where the field sobriety tests were performed without difficulty? What were the weather and lighting conditions? What were you wearing? What was the state of the pavement? Were you able to communicate your name, etc. to the officer without stumbling on your words? Were you able to get in and out of the squad car without difficulty? Were you able to walk into the police station without stumbling?
Most of the time, police reports are silent on all observations except for the field sobriety tests. Since police are trained to write all relevant facts in their reports, their credibility will be subject to devastating challenge if they add facts to their testimony, which is not in their reports. So, if the reports are silent, it is safe to say that none of your behavior except for the (unfair) field sobriety tests evidenced any intoxication.
Factor Five: The Chemical Test
This little primer is not intended to be a manual of how to handle a drunk driving case, much less a manual on the technology and pitfalls of breath and blood tests. The technology has improved dramatically in the last few years. But like all technology, it is only as good as the people who operate it.
There are various types of breath tests in operation in the USA, including:
The Breathalyzer 900 and 900A,
The Intoxilyzer 5000, and later models,
The Intoximeter EC/IR (used in Wisconsin),
The most famous of these, the Breathalyzer, is largely obsolete.
These machines are subject to error if not properly operated. One of the most common errors is mouth alcohol contamination (sometimes called belch contamination, giving rise to the term, “belch defense”). These machines are designed to test the air in a subject’s lungs. However, before the air can be tested, it must pass through the subject’s mouth. And who knows what is in the subject’s mouth? If the subject belched before the test, which can be a silent process, the mouth may contain relatively undiluted alcohol from the stomach. Hence the breath sample will be contaminated and the machine will give a false high reading. These machines are designed to detect mouth alcohol contamination: but the detection devices are fallible, and the manufacturers warn police to not rely on the machine to detect mouth alcohol contamination.
Rather, the police are supposed to perform a twenty-minute observation of the subject prior to the test, to certify that the subject did not smoke, drink, belch, etc. prior to the test. Needless to say, these observations periods are often very lax, if they occur at all.
In sometime people, for example those who suffer from GERD (gastro-esophageal reflux disease) the breath may be contaminated with stomach alcohol even if there is no belch. Dentures may also cause mouth alcohol contamination.
A skilled attorney can often demonstrate the failure of the police to perform a proper observation period, by making the police testify as to the exact timing all the completion of their various tasks, including the police reports, setting up the breath test machine, communications with other officers, etc.
That is just one example of the many different kinds of errors to which breath, blood and urine testing are subject. The important thing is to realize that these tests are flawed and fallible. If you believe you were sober, but failed the test, there is a strong possibility that the test was false. Detailed analysis and study of the testing process are a necessity in each individual case.
Factor Six: You.
Since you’ve been charges with drunk driving, you must be an antisocial, sloppy, mean, nasty drunkard, right?
That’s what the prosecution wants the jury to believe. And, from a practical point of view, that’s what they will believe unless you negate that impression by showing them that you are a nice, decent person. You must let them know that you are not a monster, you are a human being.
For the most part, we choose the image that we convey to the world. Our clothes, hairstyle, speech patterns, gait, etc., reveal the choices we have made in cultural identification. We may be artistic individualists, and choose to appear that way, with tattoos, body piercing, iconoclastic hairstyles, etc. But, when we choose to appear as radical individuals, we also choose to send a message of an attitude of negativity toward the “straight” world, and we symbolically identify with the drug culture, even if we don’t use drugs. There is certainly nothing wrong with this; but we must be aware that the jury who will judge us will also judge the message we convey by our appearance. If we send a message of rejection of straight society, we send a message of rejection of the average juror.
When you ask a juror to give you a fair and impartial verdict, have the courtesy and respect to appear before them appearing to be a person who takes the occasion seriously, and is respectful of the jury and the trial process. Be yourself. but be respectful and let it show.
How? This is done primarily your appearance. Your must present yourself as neat, clean, hardworking, nice, honest person. If the jury likes you, they will give you the benefit of the doubt; but if the jury dislikes you, they will simply find you guilty. Juries are intelligent; they have a way of being able to smell deception. I’m not saying that you should flim flam them with a false image. But you should show them the respect they deserve. Have enough respect for their time and their authority to dress neatly.
I am a firm believer in the truth. In order to win you will probably have to testify. You will have to look the jurors in the eye and swear to them that you are innocent. If you are lying, they will see it. But, if you are honest your words will ring true, and they will see that, too.
If you and your lawyer adequately prepare and carefully consider the Six Key Factors of a drunk driving case, you will have a fighting chance.
THE TWO-PRONGED STRATEGY OF DRUNK DRIVING DEFENSE
The fact of the matter is that most people who are charged with drunk driving wind up being convicted. Most simply plead guilty in some sort of plea bargain. Some are convicted after a trial. Therefore, in any case, it is important to take a two-pronged approach. Both prongs must be worked at from the beginning. The first prong is consideration of the Six Key Factors, so that you can win the case. The second prong is preparing for sentencing, in case you lose or plea bargain.
Let’s face it; you could very well be guilty. That doesn’t make you an evil person. It means that you made a mistake. Learn from your mistake!.
If you are an innocent person who is convicted despite your best efforts, don’t be bitter and angry. Use this as an opportunity to learn and grow as a person. Your life will be better and all of our loved ones will be safer.
How do you learn from a drunk driving case? This brings us back to the beginning. It’s easy. Get Help! Learn about alcohol abuse, attend A.A. meetings. Get counseling for your personal problems. Get an assessment to determine whether you have and alcohol problem and follow through with treatment recommendations.
Make this an experience that turns you into a better person, not just a person with a conviction.
Do it before the sentencing hearing. Do it before the trial. Do it right from the beginning of the case. Everyone who appears before a judge at a sentencing hearing says that he/she is going to change, that he will do the things necessary to become rehabilitated. That is not good enough.
Be the rare person who goes into the sentencing hearing saying that I have already done and will continue to do the things necessary for my rehabilitation. You will definitely be treated more fairly if you do. But more importantly, you will have taken a tragic difficult event in your life and turned it into a source of change for the better.
Good luck. Don’t drink and drive; TAKE A CAB!