OWI 1st/PAC 1st (.156), Possession of THC - Charges Dismissed After Court Suppresses All Evidence

We have said over and over in other posts that we believe our results are out of the ordinary. This case was the second OWI charge which had all the evidence suppressed in the past two days.

This case involved the client operating his vehicle at approximately 3:00 a.m. He was stopped for having expired registration. He had refused to roll his window down more than a couple of inches and was not cooperative with the officer when trying to explain his actions that evening. Client's vehicle was seen outside a bar by the officer earlier in the evening. The officer noticed an odor of intoxicants and the client admitted to drinking. He was ultimately arrested and charged with OWI and possession of THC, his blood test was .156.

We filed motion to suppress the evidence based upon a lack of reasonable suspicion to perform field sobriety tests. The cop testified, continually adding information during his testimony to attempt to justify the request for field tests. However, at one point during the hearing, the officer acknowledged that he had "no reason to suspect impairment prior to having the client step from the vehicle." The judge suppressed all the evidence obtained as a result of the unlawful detention. The field tests, blood test and drugs were all suppressed. Case dismissed. That is how we do it.

Criminal Hit and Run Reduced to Non-Criminal Citation

Our client, a 77-year old gentleman, was involved in a car accident with another vehicle. After the accident, he got out of his car to make sure the other driver was not injured, but then left the scene without exchanging any information. He was later arrested and charged with a criminal offense for leaving the scene of an accident. At the final court hearing before trial, our attorney convinced the prosecutor in Dane County to amend the case from a criminal charge to a non-criminal, zero point traffic violation. Even better, the prosecutor agreed to no penalty, except the statutorily required court costs. The client, who was petrified to attend the court hearing, was overwhelmed by the outcome.

Felony Hit and Run Causing Great Bodily Harm Amended to Misdemeanor without Injury

Prosecutors charged our client with a felony count of hit and run, causing great bodily harm after he was involved in an accident and left the scene.  Police, who investigated the case prior to the client hiring our firm, contacted him about his car being involved in an accident.  The client admitted to driving and being involved in the crash.  Authorities then filed a felony criminal charge against him.  Due to our client's business, he could not afford a felony conviction.  Nor could he stay in business if his license was revoked for a period of two years, one of the consequences of being convicted of the felony charge.  Although police and prosecutors suspected the client was impaired at the time of the accident, they could not prove an OWI.  Understanding our client's needs, as well as the prosecution's desires, Attorney Verhoff worked out a creative solution to the case.  Aware that the government would like to get an OWI conviction out of the case, he proposed the client enter a plea and be convicted of a non-criminal first offense drunken driving and in exchange he asked the prosecution to amend the case from a felony causing great bodily harm to a misdemeanor hit and run that did not include injury.  Spared the a felony conviction, as well as a prolonged license revocation, the client was very satisfied with the outcome.

OWI-Restricted Controlled Substance, Amended to Reckless Driving (Dane County)

This case involved a client initially stopped for speeding.  That speeding stop then turned into much more.  THC was found on her person and in the vehicle.  The client also admitted to smoking THC approximately 1 hour prior to the stop and her blood did contain Delta-9, the active ingredient in THC.  Our approach initially involved filing motions challenging probable cause for the arrest for OWI, based upon the client passing all of the field sobriety tests.  The real problem was the fact that the client admitted to recently smoking THC and the fact it was present in her blood.We litigated the case in municipal court, winning the restricted controlled substance charge, which was huge for the case.  We lost the OWI, but knew that on appeal, the prosecution would never be able to prove that charge. As the matter got closer to trial, the prosecutor offered to dismiss all the other tickets still remaining and amend the OWI to a charge of reckless driving.  The client was shocked a little, but realized how great of the result this was for her.

Homicide OWI Charge Declined

Law enforcement referred to prosecutors potential criminal charges of homicide by intoxicated use of a motor vehicle after our client crashed his car while drinking and driving. In a tragic twist, a passerby who stopped to assist the client after the crash was killed.  Attorney Verhoff spoke with prosecutors prior to charges being issued and argued that while our client was impaired while driving and should be held accountable for those actions, he did not directly cause the death of the other person.  If charged criminally, this would leave open a statutory defense to the charge.  Prosecutors ultimately agreed.  Although the client was charged and convicted of OWI-1st Offense, the prosecution declined to file the homicide charge. 

Gun Charge Dismissed At Initial Appearance

A Dane County court commissioner had no choice but to dismiss a criminal charge of going armed while intoxicated against our client at a recent initial appearance.  The client, who was pulled over for a traffic violation, was initially charged with a criminal offense for having a firearm in her possession while she was intoxicated.  Attorney Verhoff attended the first hearing and received a copy of the charging document called the criminal complaint.  He immediately noticed the complaint failed to allege that the firearm was loaded at the time our client possessed it.  This is an element of the criminal charge.  Our attorney moved to dismiss the complaint and charge based on the prosecution's failure to sufficiently allege all elements of a crime in the charging document.  Given the defect in the complaint, the court commissioner dismissed the case.

OWI/PAC Verdict: Not Guilty, 0.147 Alcohol Concentration

A Grant County jury recently returned not guilty verdicts on charges of OWI-2nd and PAC-2nd, acquitting our client of all counts.  In November 2017, a Grant County Sheriff's Deputy stopped our client for speeding and for what he described as an unsafe passing of another vehicle.  After field sobriety tests, the client was arrested and agreed to submit to a blood test, which resulted in a reported value of 0.147.  Our office litigated the case at every turn, having an administrative review hearing and a motion hearing to suppress evidence.  This gave Attorney Verhoff several opportunities to question the deputy before trial, which proved instrumental in front of the jury.  At trial, Attorney Verhoff argued the client's driving, as seen on video, was not as poor as the deputy portrayed in his report.  He also argued the client's performance on the field sobriety tests was pretty good, particularly when compared to the high blood test results.  He even got the deputy to testify under oath that the client did "surprisingly well" on field sobriety tests, given how high his blood test was.   Attorney Verhoff suggested the disparity between the field sobriety tests and the blood test results meant something wasn't right with the case.  And that something was a problem with the collection of our client's blood.  During the cross examination of those involved in the blood collection and testing, our attorney raised these issues.  Then, with the final witness in the case, Attorney Verhoff called an expert who offered an opinion on the blood collection and testing in this case and how it likely corrupted the test results.  And the ultimate result: A not guilty verdict!  

On Day of Trial, OWI/PAC Amended to Reckless Driving

The Palmyra Police Department stopped our client for speeding.  Upon contact, the officer observed the defendant to have blood-shot and glassy eyes.  The officer also smelled the odor of intoxicants.  The officer had the client perform field sobriety tests.  At the conclusion, the officer arrested the client, who agreed to submit to a blood test.  The test result revealed an alcohol concentration of 0.09. 

Our office litigated the case for several months.  Our attorneys believed our client had a good defense at trial, but the prosecution repeatedly had extended the same offer.  The client could plead to the OWI for minimum penalties.  Our attorneys informed the client that even if convicted at trial, he would not be in a significantly worse position than if he simply accepted the offer.  On the morning of the trial, the prosecutor reached out to Attorney Verhoff, who told the prosecutor he was ready to go and would see him in court.  At that time, the prosecutor stated, "No, that's not going to happen."  Attorney Verhoff asked what the prosecutor meant, and the prosecutor indicated he would be willing to resolve the entire case short of a trial with an amendment to Reckless Driving and a dismissal of the speeding ticket.  It goes without saying that our client was ecstatic with the outcome and happy that he heeded our advice not to settle for the original offer. 

5 More Great Outcomes for Clients

OWI 1st/PAC- Waukesha County- Amended to Reckless Driving

            The first case involved a client that was called in for sleeping in his vehicle on the side of the road after a day at a golf outing.  The client pulled his vehicle off the side of the road and a passerby called the police to check on him.  Once the police showed up, the case was off and running.

            The difficulty initially was the location of the case.  Waukesha County has been notoriously hard on OWI cases.  This one started no differently.  The case started in municipal court.  While the client was not initially successful at the municipal level, the information obtained through cross examination of the officers ultimately lead to resolution of the case in circuit court.

            Attorney Corey Chirafisi was able to raise serious questions as to what time the client was driving his vehicle.  That driving time put the test result, which was .089, in real jeopardy.  Also, based on the officers testimony regarding the 20 minute observation period, it became clear that no observation period of the client was ever done.

            On the eve of trial, the prosecutor offered to resolve the case for a reckless driving ticket.  The client was more than happy to accept that amendment.  It was especially satisfying as the client was unsure whether or not he wanted to appeal the case to circuit court.  Having never been arrested before, he had real questions about how that outcome may have been different from municipal court.  We are very glad he was willing to trust us to help him get through this. 

OWI- Amended to Inattentive driving- Dane County

            The second case shows why hiring a lawyer can change a case very quickly.  The client was charged in Dane County with OWI as she was stopped for speeding.  The officer believed that she was intoxicated based on the time (almost 2 a.m.), the odor of intoxicants and the bloodshot, watery eyes the officer said he observed.  The client was thinking about just pleading guilty to the OWI for a minimum sentence seeing that her test result was right at the legal limit. 

            After speaking to Corey Chirafisi, the client made a decision to fight the case; that turned out to be a great decision.  Attorney Chirafisi had dealt with the prosecutor on multiple occasions in the past.  After a conversation about some of the weaknesses in the government’s case, the prosecutor offered a reckless driving.  That was rejected by the client.  We believed we could do better, we were right.  Finally, the prosecutor offered a 4 point reckless driving ticket and even dismissed the speeding charge.

            Making a call to our office turned out to be a wise decision for the client.

Felony OWI 4th –amended to misdemeanor

            Collaterally attacking prior convictions has become more difficult as time has passed.  While it allows prior cases in which the client did not have a lawyer to be voided for counting purposes, courts and prosecutors have become better at dealing with these potential issues.

            The client was arrested for a felony 4th OWI charge.  Obviously, avoiding a felony conviction and all that comes with that was a very big goal of the clients.  So, Attorney Corey Chirafisi reviewed the client’s prior OWI convictions and found that he did not have a lawyer on his 2nd offense.  Sounds great, but the problem was that he did have a lawyer on an earlier criminal case which made things far more interesting.

            Attorney Chirafisi and the client put all the necessary paperwork together and filed the motion challenging the prior conviction.  The government, as per usual, was not going to concede this issue.  A hearing was held.  The client testified, was cross examined and did a great job.  The court found that the government did not meet their burden and voided the prior 2nd offense conviction, turning this felony 4th into a misdemeanor. 

            The ramifications are enormous.  Gun rights, felony probation, possible prison time.  The client was extremely grateful for the work our firm did on his case.

Possible False Imprisonment Dane County-Declined Prosecution

            We have said this multiple times in this blog, getting a lawyer as early as possible can make a huge difference in how a case turns out.  We spend a fair amount of time dealing with clients who likely will be charged, but hire us before formal charges have been filed.  Some of the time, we can avoid any charges being filed.  That is hands down the best result.

            This case was incredibly challenging as it dealt with a possible felony false imprisonment with a stranger.  Stranger cases are far more difficult to maneuver as prosecutors worry about danger to the public and protection of the community when deciding how to charge these cases.  The client is a highly successful student with a very bright future.  He did what many college students do: went out, drank too much and found himself in the company of a female who he had met that evening. 

            The women ultimately called the police and reported that the client had held her down against her will.  The police spoke to the client before he had counsel and in fact arrested and booked him.  The clients family was referred Chirafisi and Verhoff and we started by informing the police that the client was no longer interested in cooperating with any investigation.  We then reached out to the DA’s office in an attempt to get “ahead” of the reports reaching their office.

            After a conversation with law enforcement, there was an agreement for up front counseling with no referral to the DA’s office at all.  Case done, client’s future secure.

1st Degree Sexual Assault of Child- Charges Declined

            This blog above mentions the benefits of getting a lawyer before a case is filed.  This is another perfect example of how that works to a client’s benefit.

            The client was referred to Chirafisi & Verhoff on a Saturday from a former client on a possible sexual assault investigation.  Making a call to our office on a Saturday was the first positive step.  The police work weekends, and so do we.  We got in touch with the client and made sure that no statements were provided to the police.  That was helpful, since later that day the detective attempted to make contact with the client to get a statement.

            Because the allegation involved a biological child, the county then got involved with social workers who also were doing an investigation and wanted to speak to the client.  We had to step in and prevent and type of statement whatsoever from being made by the client.  Don’t help the police, any statement will only do that. 

            We then spoke to some of the possible witnesses to the matter and let the DA’s office know that we had begun our investigation.  Ultimately, with no client statement to either law enforcement or social services, the DA was left to make a charging decision based on what information they had.  They made a decision to decline the prosecution of a charge that is the most serious in this state, short of 1st degree intentional homicide. Another great result for a really good guy.

OWI/PAC 1st- .14- Amended to Reckless Driving- Parked on Railroad Tracks

Our client awoke to realized he was parked on railroad tracks.  He didn't know what happened, so he decided to call 911.  Probably a bad idea.

When the police arrived, they begun to question the client regarding the odor of alcohol they could smell and were interested in how he got his vehicle on the railroad track.  One thing lead to another and our client was ultimately arrested for OWI.  Our client blew a .14 at the station.  Our client originally tried to handle the case himself and was unable to get anywhere with the prosecutor.  He then made the decision to hire Chirafisi & Verhoff to see if we could help him.

Yeah, we could. We reviewed the reports and not only was the client not driving on a roadway, but there was zero indication as to what time the vehicle went from the roadway onto the railroad track.  Initially, the prosecutor was not moved by the argument.  We then filed a motion to exclude the breath test, and she started to become moved.  As the hearing approached, she came around.

An issue in the case was that our client drove the vehicle down the railroad tracks and simply parked it.  That could be classified as impaired driving.  So, at the end of the day, faced with our motions and arguments, the prosecutor offered Reckless Driving to our client. Our client happily accepted the offer, as his goal was to avoid an OWI conviction.

Drug Case Reduced, Columbia County

After a traffic stop in Columbia County, authorities searched the vehicle and found marijuana and various drug paraphernalia. Our client was charged with misdemeanor offenses. After negotiations with prosecutors, our attorneys reached an agreement by which the criminal charges were reduced to non-criminal ordinance violations. Our client agreed to pay a small fine on the ordinance violations. Most importantly, our client was spared from having a criminal conviction, which was the most important outcome in the case for him.

Evidence Thrown Out, 0.16 OWI Case Dismissed

In this case, our client was stopped for failing to properly signal a lane charge.  The Dane County Sheriff's Department deputy reported that upon contact he observed our client to have slurred speech, bloodshot eyes, and the client admitted to consuming alcohol for several hours.  The deputy asked our client to submit to field sobriety tests, and the client declined to perform them.  He was arrested on a criminal OWI charge and submitted to a breath test with a reported value of 0.16.  Attorney Verhoff reviewed the reports and video evidence in this case and filed a motion to suppress the evidence, asserting the deputy did not have a lawful basis to conduct the traffic stop.  Relying on the statute governing signaling, Attorney Verhoff argued no traffic was impacted by his failure to signal the lane changes, as required by law.  At the conclusion of the evidentiary hearing, the ruled in our client's favor.  She threw out all evidence against the client and dismissed all charges.

OWI 1st/ PAC 1st .13- Amended to Reckless Driving

Our client was picked up because the police noticed her vehicle was stopped about 30 feet in front of the stop sign and our client was on her phone.  The client admitted to police that she had been drinking and failed the field sobriety tests.  The next challenge was that her breath test at the police station registered 0.13 which is well above the legal limit.

This case was attacked in the same manner we attack every case, at the administrative hearing.  At that hearing we were able to lock the officer into certain statements regarding why he believed the defendant was actually impaired.  We made the same gamble in this case as well, we were willing to share the transcript of the administrative review hearing prior to the trial in the case.  

The prosecutor read the transcript and was willing to amend the charge even with a test result over 1 ½ times the legal limit.  The case was resolved for a non-alcohol related ticket with a fine.

OWI 2nd/ PAC 2ndAmended to Reckless Driving

Our client was stopped by law enforcement for drifting over the center line and speeding.  Upon approaching the vehicle, law enforcement also noticed 3 beer cans lying on the passenger seat.  The police asked the client to exit the vehicle and perform field sobriety tests (which they said she failed) and they ultimately placed her under arrest for OWI 2nd offense.  Her blood test result was also above the legal limit (.095).

Client had spoken to many lawyers before settling on Chirafisi & Verhoff.  The client made it clear that she could not be convicted and we went to work.

After conducting the administrative review hearing, it became clear that the area to attack was whether or not law enforcement had reason to believe that the defendant was actually impaired.  We took a gamble in this situation and it paid off: the prosecutor, who did not have access to the transcript of the administrative review hearing, asked if we would share that with him prior to the motion hearing. Normally that is not something that we would do, however, in this situation we believed it could help the client.  

After reviewing our examination of the officer, the prosecutor agreed that the case was in jeopardy and made an offer to resolve the case for a reckless driving citation. 

Operating With a Restricted Controlled Substance 1st

Our client was pulled over for speeding.  The officer came up to the vehicle and stated that he could smell the odor of marijuana in the vehicle.  Our client made the mistake of informing the officer that he had just recently smoked and that there was THC in the vehicle. 

The officer searched the vehicle with the client’s permission and located enough THC to charge the client with a felony for Possession With Intent to Deliver as well as Operating With a Restricted Controlled Substance.  A blood draw was completed and the client did have Delta 9 (the active ingredient in THC) in his blood.  At that point, the government no longer needed to prove impairment.  These cases can become very difficult, especially for an inexperienced criminal defense attorney.  Luckily, the client hired Chirafisi & Verhoff.  

After pouring over the video and the reports in the case, we noticed that the client said he had smoked, but not specificially when.  Further, after reviewing the videotape of the field sobriety tests, it was clear that the client passed those tests and the officer lacked probable cause to arrest him for that offense.

We didn’t get to fight as much on the next part as we thought: before we filed the motion challenging the blood draw, the prosecution reached out and informed us that he was willing to amend the OWI-Restricted Controlled Substance to a Reckless Driving. 

The client was thrilled, as not only did the OWI charge disappear, but the drug charge was reduced and will be expunged from his record in 12 months.

OWI/PAC/Left of Center- test result .14

This case should provide an example of how being thorough is how you win.

Our client called and was literally distraught about being arrested for an OWI.  She is a college athlete and had some real concerns how this would affect her moving forward.  As usual, the groundwork for the case was started through the administrative review hearing.  At that hearing we were able to get the officer to answer questions in a manner that was extremely helpful to the defense.  We decided to use this information in the court case.

The video of the case was also very helpful.  The officer had indicated that the client was not only weaving within her lane but had actually crossed over the center line which was the basis of the stop of the vehicle.  We literally broke the video down frame by frame and after an exhaustive review of the video it was impossible to see where the vehicle crossed over the center line.  At first the prosecutor didn’t care and was willing to put the officer on the stand to testify about what he saw.

On the day of trial things changed.  The prosecutor had some concerns about the stop and instead of risking losing the entire case, he offered the client an amendment to resolve the matter.

As I mentioned in the previous post, almost every client is very happy when their case gets resolved without an OWI conviction.  This client took it a step further:  She told us that it made her year.  Whether or not we had that big of impact on her life, we will never really know, but for one day it felt good that the client was so appreciative for the work done on her case.

Dane County Client Avoids Felony OWI Charge at a 0.31 Test and Crash

Our client was involved in a traffic crash, striking a vehicle from behind, which resulted in a chain reaction.  Authorities responded to the scene and smelled an odor of intoxicants coming from our client, who admitted to consuming alcohol before the crash.  Due to injuries, the client could not fully perform field sobriety tests.  He agreed to a preliminary breath test (PBT), which registered 0.13 percent.  Authorities transported him to a local hospital, and he agreed to a blood test with a reported value of 0.31 percent.  One of the other drivers also was transported to a local hospital, reporting a headache and general pain.  He was later diagnosed with a concussion.  The client immediately hired Chirafisi & Verhoff.  He made it clear that he needed to avoid a felony charge and conviction at all costs, as a felony would have catastrophic consequences on his family.  Even before the test results came back from the laboratory, Attorney Verhoff began negotiating the case with prosecutors.  The other driver had suffered an injury that could form the basis to file a felony charge, but Attorney Verhoff argued that the delay in diagnosis meant he could attack it. In addition, Attorney Verhoff obtained maintenance records for the laboratory equipment used to test the client's blood.  He learned that the laboratory was having two different mechanical problems with equipment in the days leading up to the client's test, and the equipment had to be taken off-line for repair days after the client's test.  Attorney Verhoff argued, given the difference between the PBT and blood test results, the 0.31 blood test may have been faulty due to mechanical problems in the laboratory.  In addition, given the timing of the client's last drink and his body weight, it was possible he was under a 0.08 percent at the time of operation.  In the end, the prosecution agreed not to charge the client with a felony crime, but simply a misdemeanor OWI-2nd.  The client ultimately entered a plea and was convicted of the charge, but considered it a huge victory under the circumstances.

OWI 3rd amended to 1st offense- Green County

Our client was stopped for not having functional tail lamps one evening.  That stop led to her arrest for Operating While Intoxicated as a 3rd offense.  Our client was very concerned considering the substantial penalties associated with a 3rd offense.  Our client was referred to Chirafisi & Verhoff for our expert knowledge in this type of case, our experience in handling these types of matters, and our success rate.

Corey Chirafisi reviewed the file and was able to determine that a prior conviction from over 20 years ago may be invalid as the client did not have a lawyer on that case.  After much digging, it was firmly established that the client did not have a lawyer and Corey and the client were able to attack that prior conviction. 

The government put up more fight than usual on the issue of whether the client had made a prima facie showing. The parties filed motions, affidavits and briefs on the issue.  After much debate, the Court found that in fact the client had made the necessary prima facie showing and at that point Attorney Chirafisi  knew the hearing was likely won.  He was right, at the actual motion hearing, the prosecution conceded that they would not be able to meet their burden and agreed that the client would not be charged with an OWI 3rd, but rather an OWI 1st.  Our client was thrilled, no criminal conviction and no jail with the charge.