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Challenging An OWI And Winning

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OWIs (Operating While Impaired) and the accidents caused by impaired drivers are a very serious issue in Wisconsin.   In recent years, state legislators, police and safety officials have been making a concentrated effort to reduce the number of impaired drivers on the road for the benefit of everyone.   However, in many situations, an individual may find themselves falsely accused, incorrectly processed or detained in such a manner that violates their rights.  In these situations, with the help of a good defense attorney, you can successfully challenge an OWI charge and win. 

If you have been arrested for an OWI, the case will move quickly and the circumstances of the arrest are unique to each case. Your best chances of success in any court case is to know the best strategies as early as possible and the same holds true with an OWI arrest. 

An OWI conviction on your record can surface in any number of background checks impacting not only insurance rates but employment opportunities as well.   If you have been arrested and charged for even a first OWI offense, you need to understand not only the typical court penalties and fines, but the long-term impact on your personal life and career before entering a guilty plea.

Remember, you are innocent until proven guilty. Here are some common defense strategies and areas that can help defeat an OWI charge.

Illegal Traffic Stop.   An officer must have a “reasonable and articulate basis” to believe that a traffic or other law has been, or is being, violated.  If you did not violate any law, the officer's stop can be found to be unreasonable and any evidence obtained as a result of the stop will be ruled inadmissible in Court. Without any evidence that you committed a crime, the prosecutor will likely drop the charge against you. 

Invalid Field Sobriety Tests. Probable cause for the administration of a Breathalyzer, blood alcohol test, or arrest is established when a suspect fails the field sobriety tests. However, the results of these tests can be prevented from being admitted as evidence in court if you can establish that the tests were not valid field sobriety tests or that the results were inaccurate.  Many things can make the results of a field sobriety test inaccurate; illness, injury, medication, weather, and even obesity are commonly cited as affecting the results. Even in healthy individuals, the Walk-and-Turn and One-Leg Stand test are only 68% and 65% accurate in determining sobriety among healthy individuals. Even common medical conditions such as acid-reflux and heartburn can affect the sample of a breath test.

In some cases, the actual tests may not be valid. The National Highway Traffic Safety Administration (“NHTSA”) has established the Standardized Field Sobriety Test (“SFST”) which consists of three different tests including the Horizontal Gaze Nystagmus (“HGN”), Walk-and-Turn (“WAT”), and the One-Leg Stand (“OLS”). Any other test used by an officer may be considered invalid by the Court, if challenged.

Faulty Breathalyzer. Breathalyzer equipment must be used and cared for properly. The devices must be calibrated and tested according to manufacturer instructions and standard procedures. Many departments may be using outdated equipment for which replacement parts are no longer made. These outdated machines can be both unstable and unreliable.


In order to challenge the results of a Breathalyzer, a defendant needs expert testimony regarding the unreliability of the specific Breathalyzer model used; the officer to testify that he or she did not calibrate or test the machine according to procedure; and/or that the officer did not follow proper procedure in administering the test. If you can establish that the Breathalyzer result was not accurate, the judge or jury may have to find you not guilty.

Blood Test Results. If blood alcohol tests are not done in accordance with specific rules and procedures, the results can be ruled inadmissible.  Other things such as medications or taking certain herbs can affect the results of blood test results as well. In addition, using rubbing alcohol on the skin before inserting the needle for the blood draw may also compromise the results.

Failure to Mirandize. If the officer places you under arrest and questions you without advising you of your Miranda rights, any statements you make may be inadmissible.

Rising BAC.  Alcohol takes time to be absorbed into the blood. If you recently finished drinking, and then went behind the wheel, there's a chance that your BAC was under the legal limit while you were driving.

Again, every case is different and many factors should be considered when discussing the best way to challenge an OWI charge.  The important thing is to immediately obtain an attorney experienced in DUI cases.   At Lebell, Dobroski, Morgan & Meylink, we have over 40 years of experience in defending the rights of our clients.    If you, a loved one, or a friend has been arrested for or charged with Operating While Impaired (OWI), we can help.  We are familiar with the latest laws, the newest strategies and the different types of evidence that may help get you out of OWI charges.