Wisconsin Fraud, Criminal and White-Collar Criminal Investigation Blog

For many individuals, few things are more frustrating than struggling with your finances. Many people in Wisconsin are never forced to choose between buying food and paying their mortgage, or other similar financial compromises.

However, when people end up in financial straits, they may make decisions they know are wrong. One Wisconsin man was recently charged with six counts of theft of movable property. The man is accused of embezzling $1.46 million from the hospital where he worked. Each embezzlement charge carries a maximum prison sentence of five years followed by five years of extended supervision.

By Attorney Emily Lonergan

Everybody has heard that when you are arrested, regardless of guilt or innocence, it is best to exercise your right of silence and tell the police you are invoking your right to an attorney. With this advice, it is easy to understand why if you are pulled over for operating while intoxicated, you may believe it is best to refuse any type of test used to determine your blood alcohol concentration (BAC). Perhaps you are in an impaired state and do not want to give the officers any evidence they could use against you in a case, or perhaps you have not been drinking at all and you think it is unfair that the officers can force you to give blood, breath, or urine samples when you haven't been drinking; whatever the case, it is important that you understand the consequences of refusing to submit to whatever chemical testing the officer is requiring.

There are many different types of testing that can occur during a stop for operating while intoxicated or operating with a prohibited alcohol concentration. Field sobriety tests (walk and turn, one-leg stand, etc.), and a preliminary breath test are two examples of different tests that you may be asked to complete before you are arrested for operating while intoxicated. These two tests are not the same as the chemical tests that are subject to refusal penalties. You may (politely) refuse field sobriety tests or a preliminary breath test without facing the consequences discussed below.

The tests that are subject to penalties are the chemical tests used to determine an individual's blood alcohol concentration. There are three tests an officer may choose from: blood, breath, and urine. As part of the Implied Consent Law in Wisconsin, each and every driver with a valid driver's license has already consented to submitting to the chemical tests at the time he or she obtained a license. Wis. Stat. § 343.305(2); State v. Wintelend, 2002 WI App 314, 12-13, 258 Wis. 2d 875, 655 N.W.2d 745. If you withdraw that consent at the time of the OWI stop, you also take away your own right to be driving, and you will be facing revocation of your license.

So what does all of this mean, practically? It means that if you choose to refuse any chemical tests that the officer may require (and yes, the officer gets to choose which test(s) you take), you will be facing a charge for refusing the tests-often on top of your charge of operating while intoxicated. Moreover, the officer may be able to force you to submit to a test regardless of your refusal (as evidence to use against you in the OWI case), and the prosecuting agency can use the evidence accumulated in the stop-including the mere fact that you refused the test-as evidence of your guilt of operating while intoxicated. A conviction for a refusal is often more difficult to defend than a conviction for operating while intoxicated, and in the case of a first offense, it has tougher maximum penalties.

In the context of a first offense, a conviction for operating while intoxicated (or its sister, operating with a prohibited alcohol concentration) carries penalties that include the following: a revocation of your driver's license anywhere in the range of six to nine months, a monetary penalty, an AODA (alcohol and other drug) assessment and follow-up, possibly attending some type of victim impact panel, and possibly having an ignition interlock device installed on your vehicle, depending on your BAC. During the time that your driver's license is revoked, you are permitted to obtain an occupational license to allow you to drive to work and other necessary appointments.

A first offense refusal, on the other hand, carries the same penalties but with the following changes: your driver's license is revoked for twelve months (as opposed to the six-to-nine of an OWI conviction), there is a thirty-day stay before you are permitted to obtain an occupational license-meaning you are unable to drive a car, even to and from work, for those first thirty days, and the ignition interlock device (which carries separate fines and fees to install and maintain it on your vehicle) is mandatory for at least a year regardless of your BAC.

Both a conviction for a refusal and the conviction for the operating while intoxicated are the same for counting purposes. This means that if you are later convicted for an OWI-related offense again, it will count as a second offense (which is criminal) regardless of whether the first conviction was for a refusal or for an OWI. If, however, you are convicted for both a refusal and an OWI that stemmed from the same traffic stop, your next will only be a second, not a third. In other words, for the purposes of counting (which is important because the penalties get progressively worse), it is the number of incidents that result in convictions-not the number of convictions per se.

Finally, if you are stopped for operating while intoxicated and you do refuse the chemical test, it is imperative that you read your paperwork from the arrest thoroughly. You will likely find that there are two separate forms that require a response within ten days in order to preserve your rights (one is a request for a hearing on the refusal, and another is a request for a hearing on whether you are administratively suspended). Make sure you either fill these forms out yourself and send them in immediately if you plan on representing yourself, or that you call your attorney immediately after your arrest so that he or she may ensure your rights are protected.

The laws that relate to operating while intoxicated are more complex, and tougher, than most who have never had experience in this area would understand. Before you make any decision regarding whether to take or refuse the chemical tests, make sure you understand all of the consequences first.

If you have questions about your rights during an OWI stop, please contact your attorney, or give us a call at Gimbel, Reilly, Guerin & Brown, LLP.

When an individual is getting arrested, the police need to make numerous decisions in a short amount of time. One of the things the police must determine quickly is whether the individual they are arresting poses a threat to them or the community.

When police quickly and correctly determine that the individual they are arresting is dangerous, they can help ensure no one is hurt. However, when their decision is wrong, it is almost inevitable that someone will get hurt -- either an officer, the suspect or someone nearby.

Unfortunately, for a Wisconsin woman who was arrested for impaired driving, the police made the wrong determination. Although the woman was intoxicated and lying down in her car, police officers thought she was dangerous and shot her multiple times with rubber bullets.

In our last post, we raised the question as to whether flawed DNA tests were wrongfully imprisoning people in Wisconsin. To recap, in the 1990s, the Justice Department began an investigation to determine whether FBI scientists were making mistakes with DNA samples. The investigation took almost nine years, but it confirmed the fears of every defendant: Sloppy DNA samples were putting innocent individuals in prison on wrongful criminal charges.

According to a study in The Washington Post, "hundreds of defendants nationwide remain in prison or on parole for crimes that might merit exoneration, a retrial or a retesting of evidence" because the so-called DNA experts may have made mistakes.