Revocation Hearing- ALJ Does Not Revoke For New OWI Offense While Client Was On Probation For OWI

Revocation hearings are not something we do all of the time. However, there are situations in which we will represent a client, who has pending charges and a revocation hearing. In this case the client was on probation for OWI 4th offense. He was subsequently arrested for OWI 5th offense. The Department of Corrections moved for revocation of his probation.

Attorney Chirafisi represented the client at the hearing. Through cross examination of the arresting officer, it was established that the officer did not know when the client was actually driving his vehicle. The officer further indicated that he did not know when the client had consumed alcohol (either before or after the crash). Because the officer was unable to establish a time of operation, the ALJ would not consider the test result, which was approximately 6 times the legal limit.

Without that information, the revocation became virtually impossible for the department to win. Ultimately, the ALJ found that the department failed to establish proof of operating while intoxicated and agreed not to revoke the client. He was released from the hold. Him and his family could not have been happier.

Refusal Hearing (Dodge County) Refusal Dismissed

Each county handles their cases differently. In Dodge County, they hold refusal hearings before the first appearance and sometimes before the person's test result has been returned. That makes zero sense if a case might resolve, however, that's Dodge County.

So, in this case we informed the prosecution that the test result was not known yet and the initial appearance was scheduled for another 5 months. That didn't matter, the State wanted to move forward with the hearing.

The case wasn't particularly strong on the refusal. The allegation is the client used THC and was driving. Odor of THC in the vehicle and the client admitted to using THC approximately 1 hour before the stop.

The case looked like the client was going to lose, except the State, as they often do, stepped in it. They forgot what they needed to establish at a refusal hearing and neglected to put in the location of the stop or "venue". That is a requirement at any hearing. Corey Chirafisi raised that issue to the court and the Court agreed, dismissing the refusal.

The case is not over, however, it is a good start.

OWI/OWRCS- Dismissed-Grant County

Continuing with the previous post. What we didn't mention was that the client was also arrested and charged with Operating a Motor Vehicle While Intoxicated and With a Detectable Amount of THC in his blood.

During the motion hearing on the illegal seizure, the officer stated that he observed the client have "restricted pupils" and he was stopped in front of a known drug user’s residence. The Court found that the officer not only did not have a basis to continue with the detention of the client, the officer did not have a basis to believe the client was under the influence of drugs or that he had recently used drugs.

We have had a recent string of cases in which the state does not even bother to argue the motion, this was one of those times. The state conceded the motion and simply moved to dismiss the charges.

It was a good day.

OWI 4th - amended to OWI 1st Offense - Clark County

We have mentioned the value of collaterally attacking a prior conviction. We make an effort to do that whenever we can. In this case, the client was charged with a felony level OWI. THe case wasn't particularly strong on the facts, however, the client had 2 uncounseled prior convictions. We were able to locate the information on those prior charges and challenged the prior convictions in circuit court. After the hearing, the state conceded that they could not defend the prior convictions and agreed to amend the charge to a 1st offense.

Instead of a felony level convictions, client received a fine of $150 and was not convicted of any crime.

OWI-4th Amended from Felony to Misdemeanor

Normally, we only post results once a case is completed. However, we had some results in cases this week that we feel compelled to share. While some of the cases are not concluded, we will make sure to let you know how they turn out.

Tuesday - We had a hearing waiting for a decision from the judge to determine whether or not to grant the client's motion for a collateral attack on one of her prior convictions. It was an extremely important motion as the client was charged with an OWI 4th offense. If successful, the charge would not only be amended from a felony to a misdemeanor, it will also change the client's legal alcohol concentration from .02 to .08. That mattered in this case, as the client had a blood alcohol level of .07, which would have put her under the legal limit. The morning of the judge's decision the prosecutor called and admitted that they could not defend the collateral attack and amended the charge to a 3rd offense. Client is now not going to be a felon and goes into the trial, under the legal limit. Good day.

Felony Drug Case, Juneau County

When a Wisconsin State Trooper conducted a recent traffic stop on the interstate, it turned into much more than a routine OWI investigation for one of our out-of-state clients. After detaining the client for weaving, the trooper ran the client through field sobriety tests and arrested him. The trooper asked the client if he had any weapons on him, and the client informed him there were two loaded handguns in the car. He also admitted to having marijuana and money. During a vehicle search, authorities located the guns, a mason jar filled with marijuana, and approximately $70,000.00 cash, banded in $100.00 bills. Prosecutors charged the client with a felony for possessing THC with the intent to deliver. They also charged him for possessing a firearm while impaired and for the OWI. The client hired our lawyer, Attorney Tim Verhoff, after a different lawyer in the Madison area recommended him. Ultimately, Attorney Verhoff was able to explain to the prosecutor why the client was carrying so much cash and weapons. Although the client agreed to plead guilty to the OWI charge, our lawyer negotiated an outstanding resolution in the criminal matter. The prosecutor agreed to dismiss the weapons charge outright. After hearing our explanation on the money, the prosecutor also agreed to amend the felony drug charge to a non-criminal violation of the Juneau County Code of Ordinances for possessing paraphernalia. But wait, there is still more! The prosecutor also agreed to return the weapons to our client, as well as all of the cash that was seized.

OWI 4th/PAC- Felony Charge Amended

Although courts are not operating as usual because of the COVID pandemic, Chirafisi & Verhoff are still getting outstanding results for clients. 

The client was over the legal limit for him, which is a .02, but under the legal limit of .08.  After back and forth with the DA on the case, the prosecution agreed to amend the charge to misdemeanor Negligent Operation Off Roadway.  The big get for the client in this case was he saved his license for life.  A conviction on the OWI would have led to a lifetime revocation with the possibility of an occupational after 10 years, that is no longer a concern.  No felony conviction, no jail time and no loss of license.

Criminal OWI-2nd, RSC-2nd Amended to Civil Citation

In this Dane County case, our client was charged with OWI-2nd Offense and Operating with a Restricted Controlled Substance-2nd Offense after the Madison Police Department arrested him following a traffic accident.  Police were called to the report of a driver stuck in a snowbank.  Upon arrival, officers located the client and smelled the odor of marijuana, though the client denied smoking.  He agreed to submit to standardized field sobriety tests, after which authorities arrested him and transported him to the hospital for a blood draw.  The blood test results showed the presence of delta-9 THC in the client's system.  Although the narrative police reports stated the client agreed to take a blood test, Attorney Tim Verhoff watched the video evidence, which revealed the client had actually agreed to a urine test, not a blood test.  Our attorney then filed a motion to exclude the test results, arguing the test results were unlawfully obtained because the client never actually consented to a blood draw.  Attorney Verhoff also told the prosecutor that even if the judge allowed the evidence, the District Attorney would have difficulty proving the client smoked marijuana before driving, rather than smoking it after he got stuck in the snowbank and while he was waiting for a friend to come assist him.  The judge scheduled a hearing on our motion.  Prior to the hearing, the prosecutor agreed that he had trouble with the case and offered to resolve the matter by amending the OWI to a non-criminal traffic ticket for reckless driving and dismissing the RCS charge.  

OWI 1st / PAC .14 - Amended to Reckless Driving

Getting a first offense OWI in Wisconsin, especially if the case begins in municipal court, can provide the client great opportunities to fight the case.

Our client was charged in the Town of Beloit with OWI 1st and PAC after a police officer witnessed his vehicle travel almost completely into the wrong lane of traffic at about bar time. 

The officer was able to capture the driving behavior on videotape and based on the field sobriety tests and the breath test, the client was charged with OWI and PAC.  The client didn't believe that he was impaired at the time he was driving and he hired Chirafisi & Verhoff to attempt to deal with the situation.

Because the case was in municipal court, Attorney Chirafisi was able to conduct a trial in an effort to lay the groundwork for a trial at the circuit court level.  At the municipal trial the officer testified in a way that Attorney Chirafisi knew would make it very difficult for the government if they choose to move forward with the case.  The officer did the field sobriety tests completely incorrect, scored them incorrectly and did not know what clues he was looking for.

Further, the officer did not run the intoximeter machine properly and acknowledged that he did make mistakes in doing that test.  After the client was convicted in municipal court he appealed the matter to circuit court.

Once the case was brought into circuit court, the prosecutor called Attorney Chirafisi and was told that the officer was concerned about having to testify again at the trial based on all of his previous errors in municipal court.  Even though the test result was over the legal limit (by almost double) the prosecutor offered to amend the charge to Reckless Driving.  The client saved his license, had no record of an OWI conviction, and was able to continue on with this job.

OWI Dismissed in Dane County

In most OWI cases, an amendment to a “reckless driving” citation is considered a win for the defense.  But in one recent case, our client listened to the advice of counsel and rejected such an offer – only to have the biggest payoff of all, an outright dismissal.  Our client was stopped for speeding in the early morning hours.  The client admitted to the officer that he had been drinking, but said he did not feel like he was in excess of the legal limit.  The officer continued with the investigation and demanded our client perform field sobriety tests, which the officer concluded he failed.  The client was arrested and agreed to submit to the chemical analysis of his breath, resulting in a reported result of 0.07 percent.  Although under the legal limit, the police and prosecution decided to move forward with the OWI case based upon the client’s speeding, admission of drinking and performance on the field sobriety tests.  The client was referred to Chirafisi & Verhoff to try to help him out.  With our lawyers on board at the next hearing, the prosecutor gave ground on the OWI and offered to amend the case to a reckless driving citation.  But after reviewing the evidence, our lawyers didn’t believe a jury would convict the client and advised him to reject the offer – much to the prosecutor’s surprise.  The case moved forward toward trial until the prosecutor conceded about the only thing she could prove was a speeding violation.  This case provides yet another example of how an unrepresented individual is at a significant disadvantage when dealing with a prosecutor.  It also shows that you don’t have to accept ever offer that comes from the government.  Sticking to the plan in this case resulted in the best possible result for our client -  a dismissal without trial.

Boating OWI with a 0.18 PBT and Refusal Dismissed

Most often our firm deals with people accused of driving a motor vehicle while intoxicated.  But it also is possible to be accused of operating a boat while impaired.  That’s what happened to our client after he and friends spent the day boating on an area lake last summer.  There was, in fact, little doubt our client had consumed a significant amount of alcohol on the day of his arrest.  The problem for the prosecutor, however, was proving our client ever actually operated the boat while he was impaired.

The group got into trouble after a citizen witness called 911 to report a possible intoxicated boater. When police arrived at the boat launch area an hour later, they found an individual struggling to load boat matching the caller’s description on a trailer.  Our client was found sleeping in a passenger seat of the boat.  The individual who was attempting to load the boat was one of our client’s friends, and police believed he was intoxicated.  The friend admitted to having driven the boat to the launch site and informed police our client also had driven.  Police took a statement from our client during which he said he and his friend drove the boat.  Police arrested both men.  Our client was charged with boating while intoxicated and refusing to submit to a chemical analysis of his breath.  Attorney Chirafisi reviewed the police reports and saw the description of the boat driver, which had been provided by the citizen witness, matched our client’s friend, but not our client.  Attorney Chirafisi also recognized that while our client admitted to driving the boat that day, he did not specify when. He raised these issues with the prosecutor.  One week before the scheduled trial, the prosecutor agreed he could not prove our client was impaired when he drove the boat and dismissed both charges.

OWI and PAC of 0.09 Amended to Reckless Driving Before Trial

When our client contacted Chirafisi & Verhoff, he made one thing perfectly clear.  If he was convicted of either OWI or PAC, he would lose his license and in turn his employment.  He was scared, and the stakes were high.  He was also worried about the facts.  Police stopped our client for speeding after midnight going 13 mph over the limit.  When officers spoke with him, they immediately noticed the smell of alcohol coming from his breath.  The client admitted to police he had consumed six beers that evening and said he had a shot of Crown Royal less than 10 minutes before he was stopped.  Police also found a partially-full, open Miller Lite beer can behind the driver’s seat.  The client was arrested for OWI and provided a breath sample with reported values of 0.095 percent and 0.097 percent. 

Attorney Verhoff immediately went to work reviewing the evidence.  Although the client was concerned the evidence against him appeared overwhelming, Attorney Verhoff saw many pieces of evidence that helped the case.  The first thing he noticed was the police officer did not document in his report slurred speech, bloodshot eyes or other signs typically associated with impaired driving.  He also noticed the client was able to provide his license and proof of insurance as requested without any problems.  Most significantly, Attorney Verhoff noticed something very interesting about the results of the three standardized field sobriety tests.  The client’s performance on the two physical tests was poor. But on the horizontal gaze nystagmus (eye) test, which is the test prosecutors often find to be most reliable, the officer did not observe the required number of “clues” to suggest impairment.

During the course of negotiations, Attorney Verhoff argued that although the test result was over the limit, the other evidence, including the timing of the last shot, suggested that when police actually stopped the client, his alcohol concentration was below a 0.08 percent.  Moreover, given the lack of the typical indicia of impairment and his good performance on the horizontal gaze nystagmus test, there was a strong argument the client was not impaired.  As for the remaining field sobriety tests, Attorney Verhoff informed the prosecution that the client could document a back injury, which would have an impact on his performance.  The prosecution originally insisted on a conviction for the OWI.  But at the last hearing before trial, after considering Attorney Verhoff’ s arguments, the prosecutor agreed to amend the OWI and PAC citations to reckless driving, rather than going forward with a trial.  Attorney Verhoff even was able to get the prosecutor to agree to dismiss the speeding ticket.  

OWI 1st / Refusal - Iowa County - Amended to Reckless Driving

Refusals can be difficult.  Some people believe that if they refuse to submit to a test that there case will be better because the prosecution may not have a test result to work with. That is what happened in this case.
Our client was stopped for speeding after a night out with her husband.  The officer noticed an open bottle of champagne in the vehicle and described the client as having slurred speech and bloodshot eyes.
The client was asked to perform field sobriety tests and, according to the officer, she failed all three tests,  refused to submit to a preliminary breath test and when taken to the department, she also refused an intoximeter. 
The client looked around for a lawyer and ultimately made contact with Chirafisi & Verhoff.  Upon reviewing the paperwork in the case, we found a problem with the Informing the Accused form which could have  impacted a refusal hearing.
Attorney Corey Chirafisi waited with this information until the morning of the refusal hearing.  As the hearing was starting, the prosecutor was made aware that the form he was going to use was outdated and was going to be a problem in proving the refusal.  Before the refusal hearing began, the prosecutor agreed to amend the OWI to a reckless driving and to dismiss the refusal as well.
The client was given a small fine, no drivers license revocation and she was thrilled with the result.

OWI 2nd, PAC .12 - Amended to Reckless Driving

On the night of his arrest for Operating While Intoxicated, our client believed his professional life was over.  He was a driver for a national delivery company and knew an OWI would end his career with that company.  It is something he repeated over and over on the video on the night of his arrest. He was referred to our office and we went to work on the case. 

Initially, a motion challenging his arrest without probable cause was filed and argued in the circuit court.  We won that motion and the trial court suppressed all the evidence in his case.  The State was not happy with the decision and they appealed the trial court’s decision to the Court of Appeals.

After lengthy briefs in the case the Court of Appeals ruled with the State and reversed the trial court, basically admitting all the evidence (including a .12 breath result) that had previously been suppressed.

So the client went from a virtual guarantee of winning to starting the whole case over and having to deal with the .12 test result.  As the matter moved closer to trial, Attorney Corey Chirafisi spent a lot of his preparation time meticulously reviewing the evidence-including watching the video of the defendant’s arrest- and was able to firmly establish that the arresting officer, who claimed a 20 minute observation period was completed, was not even in the room for almost half of the 20 minutes.

As we prepared the matter for trial, cuing up the video to show the jury, the prosecutor called and asked if the client was willing to accept a reckless driving ticket in lieu of the OWI.  The client was thrilled, he was able to continue in his career and suffered no conviction or revocation of his license--only a small fine. The case took almost two years to finish but perseverance paid off for the client with an amazing result. 

OWI/PAC 2nd - Charges Dismissed - 8th dismissal or amendment in the last 9 weeks

Some people believe if they test over the legal limit there is very little a lawyer can do for them. Many times they are wrong.

Our client was charged with OWI /PAC 2nd for running a yellow light.  The driving was on video and it was clear that the client did, in fact, run the light.  The client told the officer that he ran the light and just wanted to get home.  The client then refused to perform field sobriety tests or a preliminary breath test.  The client was immediately arrested and taken for a breath test which registered at 0.082.

The defendant hired Chirafisi & Verhoff and we went to work.  First, a review of the video indicated that while the client did refuse both the field sobriety tests and the preliminary breath test, but he did so after asking the officer if he could decline.  The officer told him “yes,” he did not have to do the tests.

Chirafisi & Verhoff then did something they don’t do in every case--but believed was appropriate for this case--they hired an expert to discuss both the workings of the breath machine and to put on evidence of an alcohol curve.  Once that was done and the notice of the expert was provided to the government, the State dismissed both the OWI and PAC charges. 

OWI - Causing Injury - Charges Dismissed

There are times our clients come to us and believe based on the serious of an accident or injuries involved, there is very little an attorney can do for them.  In this particular case, our client and a passenger on the scene were involved in an accident that resulted in the vehicle burning up and both people being rushed to the hospital (our client by med flight).  When EMS arrived on scene and spoke with our client, she told EMS workers that another person was in the vehicle and that he was the driver.  EMS checked the area and could not locate anyone.  Law enforcement even brought out thermal imagining devices in an attempt to locate any change in temperature in the area.  They found nothing.
Shortly thereafter police located the man that our client stated was the driver, he had no visible injuries and stated that he was not driving or even in the vehicle at the time of the crash.  Law enforcement believed him since he had no marks on him and both other people involved in the crash were seriously injured.  They ultimately charged our client with OWI-Causing Injury.
The client hired Chirafisi & Verhoff to help her with the situation and once the police reports were obtained, we went to work.  We were able to file specific motions in order to get into background of the alleged driver and the fact he was on probation at the time.  Once that motion was granted, everything started to fall apart for the government.
In reviewing the lengthy videos we were able to point out inconsistencies in one of the witness's stories that would have seriously damaged that person’s credibility.  A review of the medical records and the photos also seemed to indicate that the client was not the driver of the vehicle.
About a week before trial the government moved to dismiss the entire case against the client.

OWI 1st / Refusal - Amended to Reckless Driving During Trial

Our client came to us with two problems: he was arrested for OWI and refusal, but he also had a CDL that he needed for his occupation.

He knew he needed to fight the charges in order to save his career so he hired Chirafisi & Verhoff to help him do just that.  The prosecutor would not dismiss the case outright as he had a refusal to work with and knew that if the defendant lost on the refusal, his driver’s license would be revoked and he would lose his CDL.

The matter proceeded to trial.  After the prosecution called the arresting officer and rested, it was Chirafisi & Verhoff’s turn.  The arresting officer was questioned about her observations and tests she performed on the client during the incident.  By the end of the cross examination, the officer admitted that she did not perform the field sobriety tests correctly and the Court found that there was a problem with probable cause based on that testimony. 

Before the Court made any specific findings on the Operating While Intoxicated charge, the prosecution offered to amend the OWI to Reckless Driving and to dismiss the refusal charge.  The client was thrilled as he was able to keep his CDL and his job.

OWI/PAC - 8th Dismissed in Juneau County

Potential clients sometimes ask us why they should hire a lawyer or enter a not guilty plea if they know they committed the offense charged and the evidence looks grim.  There are a variety of answers to these questions.  Often a lawyer can help a client obtain better results at sentencing.  In other situations, the lawyer can review the case and make sure the police officers did their job properly.  Sometimes, as in this case, the lawyer can find problems with the police investigation that requires the judge to throw out evidence, leaving the government unable to move forward.  In this case, our client was stopped for speeding.  During the traffic stop, the trooper learned our client had multiple prior convictions for OWI and was subject to a permissible alcohol concentration for driving at 0.02 percent.  The trooper had our client provide a breath sample on a preliminary breath test (PBT) device, which showed a result of 0.127.  The trooper arrested our client and took him for a legal blood draw.  The test results from the blood draw showed an alcohol level of 0.138.  Our client was charged with two felony counts, OWI-8th and PAC-8th.  He also received a citation for speeding.  Our office immediately requested a hearing on the administrative suspension of our client’s license.  This is a step that many lawyers do not take, but one our firm conducts at every opportunity.  In this case, the administrative review hearing proved to be worth its weight in gold.  During the hearing, the trooper testified that he did not observe in our client any of the typical signs of consuming alcohol.  He did not observe an odor of intoxicants.  He did not observe red, watery or glassy eyes.  He did not observe slurred speech or a thick tongue.  The trooper never even asked if our client had consumed any alcohol.  Instead, the trooper admitted that he demanded our client submit to a PBT solely because he was aware of our client’s the prior OWIs and his lower permissible alcohol concentration for driving.  Using the answers provided in the administrative review hearing, Attorney Verhoff filed a motion to suppress evidence based on the trooper’s improper use of the PBT to establish probable cause for an arrest.  The motion was so strong that the District Attorney conceded the issue and dismissed the case on the morning of the scheduled evidentiary hearing.  Our client, who began the case wanting nothing more than the least amount of prison time possible, walked away having to pay a forfeiture on the speeding ticket.

OWI/PAC 1st - .12 with an Accident - Charges Dismissed

Our client somehow found his vehicle on the wrong side of the concrete barrier under a interstate overpass.  The State Patrol arrived on the scene and believed the client to be intoxicated.  According to police he had slurred speech, an odor of intoxicants and admitted to drinking, not to mention the vehicle on the wrong side of the concrete barrier.
Attorney Corey Chirafisi began working on the case and after review all the reports and viewing the video on the case he discovered that there was no indication as to what time the vehicle and been operated.  None of the four or five officers on the scene ever asked the client what time the accident occurred and the client never made any statements providing that information.
Attorney Chirafisi filed a Motion to Strip the Test of its Presumption of Reliability based on no information the test was taken within three (3) hours of driving.  The trooper conceded that she had no idea what time the driving occurred in the case.  The government then conceded that the test result would not be able to be admitted into evidence.  Shortly after, they gave the entire case up.  All charges were dismissed.

OWI/PAC 1st - 0.14 Amended to Inattentive Driving

The police found our client sleeping behind the wheel of his vehicle blocking the driveway of a person who was trying to leave. Upon making contact with our client, police noticed indicators of possible impairment and ultimately arrested our client for Operating While Intoxicated.  The client provided a breath sample which registered a result of 0.14.

The problem with the case for the prosecution was they couldn't establish a time of operation.  The car was not running when the police arrived and although the client did make some statements as to time of operation, they were vague enough to cause problems for the case.

Ultimately, the prosecution realized there was a real problem with her case and she offered to resolve the matter for an inattentive driving ticket.  Even though the client was almost twice the legal limit, he was able to avoid the OWI conviction.