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DUI (OWI) Defenses in Wisconsin

Under Wisconsin statute, the accused has a defense to drunk driving if he or she proves by a preponderance of the evidence that the injury would have occurred even if he had been exercising due care and he had not been under the influence of an intoxicant, a controlled substance, under the influence of any other drug to a degree which rendered him or her incapable of safely driving.  Additionally, the accused may also have a defense if they can prove by a preponderance of the evidence that they did not have a prohibited alcohol concentration, or did not have a detectable amount of a restricted controlled substance in his or her blood.

In addition to the possible defenses mentioned above, certain aspects of the arrest may also be challenged.  Typically, the case against a driver will be built on the testimony of the arresting officer.  Because the officer may testify that the driver was swerving, or driving to slow or fast, the driver can argue that there were reasons for this activity that is not related to driving under the influence.  An officer may also testify as to the driver’s appearance and behavior once the stop was made.  The officer will testify to the color of the driver’s eyes, if there was any slurred speech, whether the driver smelled of alcohol, whether the driver was acting in an unusual manner.  All these facts will be used to build a case against the driver.  However, just as with any visual observation, the driver will be able to argue as to why these behaviors took place.  Some possible reasons could be the stress of being pulled over, the driver has physical impairments, the driver had a bad night’s sleep and was tired, or the driver had allergies.  There could be many more, but it will be up to the driver and their counsel to decide which course of action is best.

Field sobriety tests results are usually not admissible in court.  Additionally, in Wisconsin, it is not mandatory for a driver to perform the field sobriety tests; he can always politely decline.  However, if a driver does perform the test, and they are brought up in court, the driver can argue that he was under stress and did not perform well, or that there is some type of physical impairment that will cause the results to be lacking.  The driver can also testify whether the officer who made the stop asked the driver if they had any impairments that would prevent them from performing the tests.

BAC can be determined from blood or breath samples taken from the driver.  The results are more accurate if blood is drawn, and it will be difficult to challenge the results.  However, the driver is not without remedy.  The driver can argue whether the tests were administered properly, whether the driver’s samples got mixed up with someone else, what was the chain of evidence, and if the samples were corrupted.  Additionally, if a breath sample is used, the driver could argue the fact that the machines are old, outdated, not kept up, or that the officer did not administer the test correctly.


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