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Understand the legal process before you commit to hiring your defense attorney

The following information is not meant to serve as legal advice. You should consult with an attorney before applying any information found on the internet to your case. 

Ask Your Legal Question

If my conviction was expunged, will my record be erased?

No. When a court record is expunged, it is not destroyed or erased. Rather, the court record is removed from public access and sealed. It is important to understand that an WI expungement laws apply solely to court records. Records of arrest, or other incidents of police contact are not affected.

I was denied a motion to modify my sentence. Can I file another one this year?

Unfortunately, the court will likely find that your claim is procedurally barred.

Two very important legal principle work against you here – finality and waiver. Generally speaking, “finality” means that if you raised an issue in a previous motion and lost, you cannot raise it again. “Waiver” means that if failed to raise a particular issue in a previous motion, you cannot raise it again.

Although you did not mention which issues you addressed in your motions, the chances are you will be procedurally barred from raising further issues relating to sentencing because: (1) you raised the same issue in your initial motion but lost on appeal, or (2) you could have but did not raise the issue in your initial motion. It is incredibly difficult to raise a new issue in a later motion. To do this, you must show the court a “sufficient reason” for raising it now. See State v. Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994); State v. Lo, 2003 WI 707, 264 Wis.2d 1, 665 N.W.2d 756. This is not an easy task. There are few circumstances in which a court has found “sufficient reasons.” Those include:

  • The appellate attorney did not claim ineffective assistance of trial counsel on direct appeal, because the appellate attorney was also the attorney at trial. See State v. Hensley, 221 Wis.2d 473, 585 N.W.2d 683 (Ct. App. 1998).
  • The appellate attorney was ineffective in failing to bring a postconviction motion on direct appeal. See State ex rel. Rothering v. McCaughtry, 205 Wis.2d 675, 680, 556 N.W.2d 136, 139 (Ct. App. 1996).
  • The substantive law has changed, and it could not have been foreseen at the time of your direct appeal. See State v. Howard, 211 I
    Wis. 2d, 269 564 N.W.2d 753 (1997).

The bottom line is that the doctrine of finality and the waiver rule combined generally mean that you get only one chance to make your arguments. That is why it is important to raise all important issues in your initial motion.

Can I still use a firearm if I was convicted of a municipal ticket for disorderly conduct?

The Federal Firearm Restriction prohibits use of firearms by persons convicted of a misdemeanor crime of domestic violence. The key word here is "misdemeanor." A municipal citation or forfeiture/ticket is not a criminal matter, it is a civil in nature. Therefore, the Federal prohibition does not apply.

When do I have to pay the fine for an OWI? What happens if I can't pay it?

You have 60 days from the date of conviction to either 1) pay the fine to the Clerk of Court or 2) apply for a payment plan. Failure to do either before the 60 day deadline will result in a 2 year suspension of your Wisconsin driving privileges.

Is it true that a refusal ticket counts as an OWI?

Yes. A refusal ticket, which will show up on your driving record as an "IC" or implied consent violation, is counted as an OWI. That is why it is so very important to request a refusal hearing within the 10 days deadline set by the Wisconsin Department of Transportation (DOT).

Is there any way to stop the DOT from suspending my license before my case is over?

Possibly. If you have filed the Department of Transportation (DOT) form requesting an administrative suspension review hearing before the 10 day deadline, you or your lawyer will have a chance to cross examine the officer who arrested you at an informal hearing held at the DOT. If, after the hearing, the DOT decides to suspend your license, your lawyer may be able to get a court order preventing that suspension. About a week or so after the hearing, you should receive a notice from the DOT with their decision and a form to request a judicial review of their decision. Some judges believe that the statute governing this procedure prevents them from reviewing the DOT decision before the day of the trial. This is a common misinterpretation, by lawyers and judges alike. The confusion lies in a subtle distinction in the wording of the statute. Wisconsin Statutes § 343.305(8)(c) does indeed provide that the review shall be heard at the time of the trial. The “review” described in subsection (8)(c), however, pertains to a judicial hearing held for the purposes of determining whether to rescind or sustain the administrative suspension. A on the other hand, is a separate determination, made available to the court by subsection (8)(c)2, pending or in advance of the court's decision to rescind or sustain the administrative suspension. Subsection (8)(c)2 provides, in relevant part:

The department shall vacate the administrative suspension under sub. (7) unless, within 60 days of the date of the request for judicial review of the administrative hearing decision, the department has been notified of the result of the judicial review or of an order of the court entering a stay of the hearing examiner’s order continuing the suspension.

In other words, section 343.305(8)(c)2 acknowledges two separate mechanisms by which the court may change the status of the administrative suspension: a judicial review hearing, or a discretionary stay of the suspension.

Because the legal issues yet to be adjudicated in the underlying OWI (operating while intoxicated) charge may determine whether the suspension will be enforceable in the first place, your lawyer may be able to persuade a judge to sign a legal motion and order “staying” or temporarily preventing the DOT from administratively suspending your license until such time as a final determination may be made by the court at a judicial review hearing.

This information is not meant to serve as legal advice. You should consult with a qualified attorney before making any decisions about your case and never rely solely on information found on the Internet.

Are all drunk driving charges criminal offenses in Wisconsin?

No. First offense OWIs in Wisconsin are a non-criminal offense, called forfeitures. They result in the issuance of a citation and fine, but no jail time. Only the second and subsequent drunk driving charges are criminal misdemeanors or felonies.

Will I be penalized twice if I get an OWI and a PAC conviction?

No. Wisconsin law does not permit this. Operating while Intoxicated or Impaired (OWI) and Prohibited Alcohol Content (PAC) carry the same penalties, but only one will apply if you get convicted of both.

What will I get for a third drunk driving conviction?

There is no short answer for this question. Sentencing of OWI cases depends upon many factors. Judges refer to Wisconsin OWI sentencing guidelines when sentencing individuals for drunk driving. The guidelines are different for each county in Wisconsin. The guidelines for any given county are based on a chart divided into two columns (mitigated or aggravated) and several rows (level of blood or breath alcohol content). Generally speaking, the higher the alcohol content, the more severe the penalties. Each case is different and there are other factors that guide a judge at sentencing. Sentencing is a complex process that no individual or attorney should take lightly. Every attempt should be made to mitigate or downplay the negative facts of your case, and identify and emphasize the positives. You should consult with an attorney before making any decisions about your case and never rely solely on information found on the Internet.

What is the difference between OWI, DUI, DWI charges?

These are merely the various acronyms or shorthand different states use when referring to drunk driving charges. For example, Wisconsin calls their drunk driving offense Operating While Intoxicated or Impaired (OWI). California calls it Driving Under the Influence (DUI). Each statute may differ slightly in the actual language and elements required to prove a drunk driving charge, but they are otherwise essentially the same.

Shouldn't they dismiss if nothing was taken & I wasn't physically caught?

There is no short answer to your question. Whether a charge can be dropped or amended from a felony to a lesser charge depends upon a great many factors and cannot be determined without a detailed review of the facts of the case.

In general, however, the weaker the evidence the State has, the better your chances (obviously). Also, if the police failed to conduct their investigation properly, or evidence (physical or statements) was obtained in violation of constitutional rights, it may be possible to suppress that evidence. Suppression of evidence means the State cannot use it against you at a trial. If enough evidence is suppressed, the State may concede they cannot prove their case and dismiss the charges.

Finding fingerprints of a person who has no business in a dwelling can be pretty damning. In situations like this, establishing that police unlawfully obtained this evidence at a suppression hearing is a key defense strategy.

With regard to your point that no property was stolen, the Burglary statute in Wisconsin does not require actual theft of property. It only requires that a person "intentionally enters" the premises "without the consent of the person in lawful possession and with intent to steal or commit a felony ...." Keyword here is "intent."

The State may also issue charges for a burglary if they believe they can prove a person entered the premises with the intent to commit a "felony," such as "battery upon a person lawfully therein." Wisconsin Statutes Section 943.10(2)(d).

Reviewing a serious criminal charge (such as burglary) for potential defenses is a complex process that no individual, or attorney for that matter, should take lightly. You should consult with an experienced criminal defense attorney before making any conclusions about your case and never rely solely on information found on the Internet.

What does it mean when the judge sentences someone "with good time"?

Good time is credit earned for good behavior while serving one's sentence. By state statute, "eligibility" for good time is supposed to be automatic; however, some county jails incorrectly refuse to consider a person eligible to earn good time unless the court orders it on the record. Good time is typically earned at a rate of one day of credit for every 4 or 5 days of good behavior in jail. This means that the average jail sentence can be reduced by approximately 25%.

What is the difference between pleading "guilty" and "no contest"?

Under Wisconsin Statute Section 971.06, there are two types of pleas that can result in a criminal conviction:

  1. Guilty plea: the defendant admits that he or she committed the acts alleged by the prosecution. Guilty pleas are the most common type of plea in Wisconsin.
  2. No Contest plea: the defendant does not admit to the facts alleged by the prosecutor. However, he or she also does not dispute that a jury could find him or her guilty beyond a reasonable doubt - if the case went to trial.

Put another way, when you enter a plea of guilty, you are admitting that you did the crime. When you enter a plea of no contest, you are essentially admitting that a jury could find you guilty based on the evidence the State has against you, but you are not going that one extra step and admitting that you actually did it.

The significance of this distinction is that anyone who files a civil lawsuit against you for the same conduct as that in the criminal case, cannot use the conviction in your criminal case as evidence of guilt in the lawsuit.

If the crime to which you are pleading involves a victim with injuries or damaged/stolen property, it is better to enter a no contest plea to prevent your conviction from being used as ammunition against you if you get sued.

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