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Employment in Wisconsin with a Felony

What do comedian Tim Allen, Martha Stewart and actor Robert Downey Jr. all have in common? They all spent some time in jail for criminal activity. However, the public forgave their flaws and embraced them nonetheless. They were able to find employment after their crimes.

 So what do you do if you have a felony; now how can you get a job? We have been asked numerous times how someone might get a job once they are saddled with a felony conviction. The obvious and truthful answer is that a felony conviction will have a negative effect on finding employment. Of course, anyone with a felony already knows that. However, we have found some things that might be helpful to people in that situation. Please note that the advice set forth in this blog is based on the information available at this time, but does not constitute accounting or legal advice. You should talk to your attorney at Petit & Dommershausen and/or your tax preparer and/or consult with the Internal Revenue Service to determine whether the advice given in this blog is still current as of your reading of same.

Obviously, filling out a job application and lying about whether you have a felony conviction can have negative consequences. Most employers will access the Wisconsin Circuit Court Access Page which allows them to easily check whether someone has a felony conviction. In addition, many employers use other websites that allow them to do a more thorough search than even the Wisconsin Circuit Court Access Page allows. Therefore, what do you do if you have a felony conviction?

In most cases, if you know the employer will do a background check and become aware that you have a felony conviction, an honest answer is probably going to be the way to go even if it means you may not get the position. However, there is nothing to stop you from putting a notation on that answer and providing more information than a simple yes I have a felony conviction.

You may find that many employers are not as worried if the felony conviction is remote in time or if it is something that doesn’t affect your employment. A marijuana conviction from 1980 probably won’t have a lot of negative impact if you are looking for a construction job in 2021. However, a theft from employer one year ago would certainly not be helpful. You may want to get  ahead of this by letting the employer know that the felony conviction exists and, if necessary, provide additional information to show how rehabilitation has taken place, that it was an aberration in behavior, and that it would not affect your work place performance.

Another possibility might be to inform your potential employer that a potential federal tax credit is available if they hire a felon. You may want to provide them with IRS form 8850. According to the IRS instructions for form 8850, dated March 2021, an employer may be qualified for a tax credit if they hire an ex-felon. According to that publication, “an ex-felon who has been convicted of a felony under any federal or state statute, and is hired not more than one year after the conviction or release from prison for that felony” may have the employer eligible for this tax credit. This may be enough of a benefit to an employer that they may be willing to hire a felon to save themselves money and get an employee that might be very grateful for that opportunity. It is currently difficult at this time to hire qualified workers in this economy given the labor shortage. By informing a potential employer that they could get a tax credit for employing a felon could be  the incentive they need to do so and would certainly let them know that you are smarter than the “average bear” when it comes to ingenuity and resources. While there are certainly limitations to the tax credit, the discussion itself may lead to an interview and open the eyes of a potential employer.

Finally, one should understand that, under Wisconsin law, there is certainly the chance for a pardon. A pardon would serve to remove the felony from one’s record. If you are interested in a pardon, you certainly can contact Petit & Dommershausen to see if you qualify under the criteria that is currently in place in the State of Wisconsin.

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Pardons in Wisconsin 101

What is a pardon?
A pardon is forgiveness by the governor for a crime previously committed. A pardon is different from expungement, where the record is completely removed as if it never occurred. A pardon restores legal rights associated with a conviction; for example, a previously convicted felon can have their gun rights restored upon the issuance of a pardon. A pardoned conviction remains on an individual’s record and remains on CCAP (unless otherwise requested), with the noted caveat that this conviction/individual has been granted a pardon by the governor. Pardon eligibility differs by state.

History of pardons in Wisconsin
From 1977 through 2014 986 individuals have been pardoned according to the Office of the Secretary of State. Governor Scott Walker did not review nor grant any pardons during his 8-year term despite the thousands of applications his office had received. Since Governor Tony Evers took office in 2019, he has issued 263 pardons, which puts him on track to pardon more individuals during his first term than ANY governor in recent U.S. history. Governor Evers supports the pardon process, as evident by his continuing orders to expand the process and issue pardons to deserving individuals.

Eligibility
Most importantly, is finding out if you may be eligible for a pardon. As of September 2021, Governor Evers yet again expanded eligibility requirements. So long as you meet the following requirements, you are eligible to apply for a pardon.

  1. You are seeking a pardon for a Wisconsin Felony Conviction.
  2. It has been at least five years since you finished any criminal sentence.
  3. You do not have any pending criminal cases or charges in any jurisdiction.
  4. You are not currently required to register as a sex offender.
    Prior to the recent executive order on pardons by Governor Evers, individuals with ANY subsequent criminal convictions, including criminal traffic convictions, were ineligible. Now the eligibility has been expanded to allow those individuals to apply for relief so long as there are no pending charges and it has been five years since that individual has completed that subsequent sentence(s). Individuals who had previously applied and were denied on these grounds are now eligible to reapply.

Considerations
If you are eligible for a pardon, you will also need to show a documented need. Examples of considerations of a documented need are: an employment, educational or job training need. Additional considerations are: your age, seriousness of your conviction(s), extent of your need, your entire criminal record, your personal development since your crimes were committed, any community or civic contributions, and any other relevant considerations.

The full pardon process in Wisconsin
The information below is taken directly from the Governor’s website on pardons: https://evers.wi.gov/Pages/pardon-information.aspx

  1. If an applicant is eligible and their application is complete, their application is placed in line to be considered by the Pardon Advisory Board. During this time, applications receive a second, more thorough review.
  2. Most applicants will be scheduled for a hearing in front of the Board. This typically has taken about 13-14 months from the date the application is received. Applicants will be notified about a month in advance that they have been scheduled for a hearing and will be provided with the logistical details. Hearings are open to the public and may be held virtually or in-person. Applicants must be present for their hearing and may appear for virtual hearings by video or telephone. Each applicant will appear before the Board for approximately 15 minutes. Board members may ask the applicant questions about the offense, how their sentence went, what they have done since the completion of their sentence, and why they think they should receive a pardon, as well as for further information about anything revealed in background checks or disclosed on the application.
  3. After a hearing, the Board will vote either to recommend an applicant for pardon or not. If the applicant is recommended by a majority of the Board members present, the Governor then reviews that application and makes the final decision on whether to grant a pardon or not. If an applicant does not receive a majority vote of the Board, then that application is not forwarded to the Governor for consideration, and the applicant is denied. Applicants are notified of the final decision on their application about a month after their hearing.
  4. Select applications for older, low-level felony offenses may be placed on an expedited review track. These applications undergo the same thorough review process but are not scheduled for a hearing. Instead, upon the recommendation for pardon by the Chair of the Board, these applications are sent directly to the Governor for consideration. If the Chair does not recommend a pardon, the applicant is scheduled for a hearing and their application will proceed through the standard review process. Expedited applicants will be notified of the final decision.

Petit & Dommershausen, SC, can assist with pardon application preparation, call us today at 920-739-9900 for your free phone consultation. A blog post prepared by Attorneys Britteny Koenig & Dylan Gehrtz.

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Debunking the Myth that Eyewitness Identification is Reliable

We’ve heard it in the news; we’ve seen it on our Facebook feeds; we’ve seen it on the latest Netflix documentary—There are innocent folks in prison for crimes they didn’t commit. The number one reason why? The admissibility of unreliable and inaccurate eyewitness testimony and misidentification. According to the Innocence Project , 358 people who had been convicted and sentenced to death since 1989 have been exonerated through DNA evidence. Of these, 71% had been convicted through eyewitness misidentification and had served an average of 14 years in prison before exoneration. Myth: Eyewitness Testimony is the Best Kind of Evidence, Stephen L. Chew, Samford University.

Historically figured as one of the most reliable pieces of evidence, eyewitness testimony is finally being recognized by psychologists and scientists alike as one of the most unreliable types of evidence. “Courts took very little notice of the problems associated with eyewitness identification until DNA evidence began to be used to exonerate criminal defendants, in some cases decades after they were convicted. In irrefutable cases of wrongful conviction, people both within and outside of the judiciary began to question the factors that led to each wrongful conviction. It became clear that the predominate cause was inaccurate eyewitness identification.” The Trouble With Eyewitness Identification in Criminal Cases, Greg Hurley, Knowledge and Information Services Analyst, National Center for State Courts.

Wisconsin’s own criminal appellate expert, professor Keith Findley, has called for reform and has outlined certain areas where change is needed in order for eyewitness accounts to be made reliable enough for use in criminal court:

• Only One Suspect per Procedure
• Proper Selection of “Fillers”
• Unbiased Witness Instructions
• Double-Blind Administration
• Prompt Recording of Confidence Statements
• Sequential Presentation
• Limit the Use of Show-ups
The Trouble With Eyewitness Identification in Criminal Cases, Greg Hurley, Knowledge and Information Services Analyst, National Center for State Courts.

To protect criminal defendants from wrongful convictions based on an eyewitness misidentification, it is important that the courts, and law enforcement, take notice of recent developments on the issue. Eyewitness testimony is favored by juries and is the most persuasive type of evidence next to DNA. Human memory is malleable, and always will be. Now that we recognize the issue, it’s time to implement and utilize some of Professor Findley’s solutions.

Were you or a loved one convicted based on eyewitness misidentification? Attorney Britteny LaFond (soon to be Britteny Koenig) specializes in Criminal Appeals, call her today at 920-739-9900 for your free consultation.

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Speeding Ticket License Suspension in Wisconsin

Demerit Points and Driver’s Licenses in Wisconsin

                You woke up late and you are rushing to make it to work on time. Travelling along Highway 41 and you catch a glimpse of flashing red in your rearview mirror. Your heart sinks and you look at your speedometer . . . 85mph!?!?!? Now you know that the flashing reds are for you. On top of being late for work, you now face a fine and demerit points on your license. While it might seem easy to just pay the fine, you must consider the other consequences it could have. 

                Now, imagine earlier this year, in a snow storm, you were cited for driving too fast for conditions, worth 4 demerit points. And shortly before that, you got pulled over for inattentive driving. That’s another 4 demerit points. You simply paid both of those tickets and gained 8 demerit points. Believe it or not, your new speeding ticket has now put you in danger of a license suspension.

                The Department of Transportation has the authority to suspend driving privileges of “a habitually reckless or negligent operator” based on the number of points accrued. You will be considered “a habitually reckless or negligent operator” if you accrue 12 or more demerit points. If you accumulate 12 points within any 12-month period your license will be suspended for 2 months (6 months if you have a probationary driver’s license or driving permit). If you accrue more points, the suspension could be for as long as a year.

                In this scenario, if you just pay your ticket and accept the 4 demerit points associated with the violation, your license will be suspended for 2 months! You won’t be allowed to drive – for 2 months! If you had successfully challenged either or both of your previous citations, you wouldn’t be in this predicament. And a successful challenge of this speeding ticket would prevent you from a suspension.

                Don’t overlook challenging traffic citations before you get too deep. If you are facing a traffic citation or driver’s license suspension in Appleton, Oshkosh, Green Bay, or the surrounding area, Petit & Dommershausen, SC will be here for you. Call us at 920-739-9900.

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Is CBD Oil Legal in Wisconsin?

               If you have driven through, or live in, any medium to large-size city in Wisconsin, chances are you have seen at least one “CBD Oil Sold Here!” banner hanging in a store window. The use of CBD oil has become increasingly trendy over the last year, and many users claim that it can help promote sounder sleep, reduce inflammation and pain, and help reduce stress and anxiety. But one thing many Wisconsin consumers wonder is whether it is in fact legal to possess and use CBD oil.

The most recent bill addressing the legality of CBD oil was passed by the Wisconsin State Legislature in 2017. The bill allowed for citizens to possess CBD oil if a doctor confirmed, in writing, that the product was being used to treat a medical condition. This law is embodied in Wis. Stat. § 961.32(2m)(b) and remains in effect to this day. What that means is that possession of CBD oil without a valid note from a doctor can technically be prosecuted as a misdemeanor criminal offense.

At this point, you may be wondering how none of your friends and family members have been charged with some sort of possession offense after leaving the CBD store on the corner with a bag full of CBD gummies, oils, or vapes without first obtaining a doctor’s note. You may also be wondering how that CBD store on the corner has been allowed to remain in business in the first place.

In 2018, the Wisconsin State Legislature passed a bill authorizing farmers throughout the state to grow industrial hemp. The hemp produced by farmers can be used to produce and sell CBD oil. Due to the conflict this created in the CBD law, the Wisconsin Attorney General’s office released a statement in May of 2018 advising law enforcement officials throughout the state to refrain from enforcing the requirement that consumers must possess a physician’s note in order to use CBD oil. In other words, while you are still technically required to have a physician’s note to use CBD oil, you will most likely not be charged with any criminal offense if you do not have one. If you’d like to play it safe, obtaining a doctor’s authorization is your best option!

While the use of CBD oil seems to be trending towards complete legalization, possession of marijuana remains illegal in the state of Wisconsin. If you or a loved one has been charged with a marijuana-related offense, call Petit & Dommershausen for legal assistance today at (920) 739-9900.

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Pardons in Wisconsin

Wisconsin’s Governor has reinstated pardon review. Petit & Dommershausen, SC, offers a broad overview of the pardon process based on announced rules and governing law. Questions? Contact us today.

PARDON ELIGIBILITY

An individual is eligible for a pardon only if all of the following conditions apply to them:

  1. Must be for a felony conviction.
    1. However, if a secondary charge is a misdemeanor, it may be reviewed as well.
  2. A defendant must have completed the entire sentence at least five (5) years ago, meaning:
    1. Completed all periods of confinements; and
    2. All supervised release (i.e. probation, parole, and/or extended supervision).
  3. Has not been convicted of any new criminal offenses since completing the sentence and has no pending charges.
    1. This section includes convictions in jurisdictions outside of Wisconsin.
  4. Not currently required to register as a sex offense under Wis. Stat. § 301.45.

Must meet all of eligibility criteria or application will be denied.

Standard an Applicant Must Meet

The applicant must have a significant and documented need, such as:

  1. Employment related;
  2. Educational; and/or
  3. Job training.

Typically, it is inappropriate to apply for a pardon if (1) it is to clear one’s conscience or (2) reinstating one’s firearm rights.

  1. However, a Governor may review such cases if conviction is old and minor.
    1. Minor will depend on Governor’s interpretation of the crime.

Below is a non-exhaustive list of relevant factors when determining whether an application has a significant or documented need:

  1. Age
  2. Seriousness of conviction
  3. Extent of need
  4. Entire criminal record
  5. Applicant’s personal development since crime was committed; and
  6. Community or civic contributions since release.

Interested in learning more about applying for a pardon? Petit & Dommershausen, SC, is a Wisconsin law firm that can help. We regularly practice in Marinette County, Octonto County, Brown County, Door County, Kewaunee County, Outagamie County, Winnebago County, Waupaca County, Waushara County, Calumet County, Fond du Lac County, and Green Lake County. We offer convenient office locations in Appleton, Oshkosh, and Green Bay. We serve all of north east Wisconsin.

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What Are the Consequences of a Misdemeanor?

What will happen if I am charged with a misdemeanor? What happens after a misdemeanor conviction? Can I go to college after a misdemeanor conviction?
These and many other important questions are asked when dealing with a misdemeanor charge. Unfortunately, many people don’t fully understand the consequences of a misdemeanor conviction in Wisconsin. A conviction for a misdemeanor – especially a violent or drug-related misdemeanor – can carry serious penalties and deeply impact your life.

What Is a Misdemeanor?

Wisconsin Law States that a misdemeanor offense is an offense for which the maximum possible penalty is 12 months or less jail. A misdemeanor offense could include:

Domestic violence, like battery or disorderly conduct
Operating While Intoxicated (OWI aka DUI)
Theft
Prostitution and solicitation, and
Resisting or obstructing arrest

Misdemeanor Sentences

A misdemeanor conviction could carry a significant sentence. A sentence could include jail time, probation and other consequences that may affect your finances and freedom. Community service, fines, and other obligations could be imposed on your by the court at sentencing.

Firearm Rights

Certain misdemeanor offenses can affect your firearm rights. Even though you haven’t been convicted of a felony, certain domestic abuse offenses may impose federal prohibitions on firearm possession.

Work or School Issues

If you are sentenced to jail or have other conditions imposed on you, it may be difficult to meet the expectations of your employment or school. Following a conviction, it may be hard to find suitable employment or gain acceptance into certain types of schooling or maintain certain professional licenses.

The Petit & Dommershausen, SC, team will work with you to mitigate or lessen the harsh consequences of a misdemeanor conviction. We can employ legal strategies to review your case for potential defenses, conduct assertive negotiations on your behalf, advise you on steps that may assist the resolution of your case, and obtain outcomes that may circumvent difficulties that may arise with a charge or conviction.

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Can they take your blood if you passed out? “Mitchell v. Wisconsin: Unconscious Drivers and the Implied Consent Law”

                It is common knowledge that those who drive after consuming a sufficient amount of alcohol may be charged with operating a motor vehicle while intoxicated (OWI). While investigating an OWI case, it is common for law enforcement officials to ask the driver of the vehicle to submit to a breath and blood test. This is used to determine the driver’s blood alcohol concentration (BAC) in order to prove whether the person was under the influence while driving.

Wisconsin is an “implied consent” state, which means that by operating a motor vehicle on a highway within the state, the driver has impliedly consented to a test of his or her blood or breath for the purpose of determining whether there is any detectable amount of alcohol in his or her blood. A driver may refuse to submit to those tests, but he or she may still be prosecuted for a drunk driving related offense and may face additional criminal consequences as well.

The implied consent law has been challenged in various courts, both state and federal, several times in the past. Most recently, one narrow aspect of the law was challenged before the United States Supreme Court in Mitchell v. Wisconsin. In this case, the Supreme Court was asked to decide whether law enforcement has the authority under the implied consent law to perform a blood test on a suspected drunk driver who is unconscious and cannot submit to a preliminary breath test without first obtaining a search warrant.

Justice Alito, writing the main opinion for the United States Supreme Court, concluded that the exigent circumstances doctrine almost always permitted law enforcement to perform a blood draw on an unconscious subject without a warrant. The exigent circumstances doctrine allows law enforcement to conduct a search (or here, a blood test) without a warrant when potential key evidence in the investigation could be destroyed before the warrant would be obtained.

So how will this ruling be applied going forward? Wisconsin courts will most likely continue to adopt the policy that in almost every case, a warrantless blood draw can permissibly be performed by law enforcement. However, it is possible that suspected drunk drivers may be able to challenge the results of those tests if they can prove that exigent circumstances did not exist and a warrant could have been obtained prior to the performance of the tests.

If you or someone you know has been charged with an OWI-related offense, call Petit & Dommershausen for legal assistance today at (920) 739-9900.

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Legal Podcast Review with Attorney LaFond

We’ve all listened to the podcast Serial at this point (if you haven’t do you live under a rock?), so what’s next on your morning/evening commute? For all you true crime lovers out there, here are a few reviews of some of my favorites. Comment on this post today with your recommendations for me as I drive through Wisconsin defending the rights of the accused.

My Favorite Murder
If you enjoy comedic relief AND true crime, this is the podcast for you. Karen and Georgia spend each episode discussing a murder of their choice (usually for no rhyme or reason). The discussions are filled with their blatant opinions and sometimes too inappropriate commentary but there won’t be an episode where you aren’t laughing uncontrollably and/or gasping in horror and disbelief. Karen and Georgia are so entertaining that they have spent the last couple years touring the world doing live shows. They are coming to Milwaukee in May for two shows, and sorry, they were both sold out in seconds so you’ll have to get your fix from your favorite podcast app. But seriously check it out. This podcast is one of a kind!

Q: Is this REALLY a true crime podcast or is this just a comedy podcast with a true crime twist?

A: Well, yes it’s a true crime podcast in a sense that the hosts discuss real cases, but no in a sense that they actually know what they are talking about. Karen and Georgia make a point to tell the listeners that they don’t do a lot of research and don’t have any background in the field. In fact Karen is actually a comedian so that explains why this podcast often gets categorized that way. This podcast also doesn’t explore the court system and what happens to cases once they get there so if that’s what you are looking for try one of my other recommendations.

In the Dark
So far there are two seasons of this podcast and I really hope that there will be more. APM reports presents two separate cases that have brought on questions by many. The first season explores police and investigative errors that led to a case being unsolved for 27 years. The second season explores the same topics, but brings it into the court system to try and unpack how one defendant could be subjected to 7 trials and 6 reversals on appeal over a 20 year period. Both seasons present serious social and political issues that impact how our criminal justice system functions (or doesn’t function). Stay tuned for upcoming additions to season 2 as the U.S. Supreme Court has agreed to take up the case of Curtis Flowers (subject of season 2) to determine whether or not the prosecutor racially discriminated in jury selection; thus depriving Mr. Flowers of his constitutional right to fair trial.

Q: Is this podcast a genuine representation of the criminal justice system?

A: Yes. A lot of research and work goes into each one of these episodes. The host is an investigative journalist and she has a whole team of researchers and investigators that assist in the behind the scenes work. They even conduct studies through the podcast to further their knowledge. If you are looking for a true and accurate representation of how a case moves through the system from start to finish, this is a podcast to add to your queue.

Sword & Scale
This podcast came out my first year as a lawyer, so as I was driving, representing clients in courts across the state, I downloaded a few episodes at the recommendation of a colleague just to see what it was all about. She warned me to only listen if I had thick skin—which is essentially a warning that the host Mike gives in nearly every episode. Sword & Scale has covered some of the most interesting and shocking criminal masterminds and cases that I had ever heard of. And what makes Sword & Scale stand out from some of the other similar podcasts is the amount of “real” case material that is actually used. Sword & Scale plays the 911 calls, the interrogation of the suspects, and the follow up interviews with witnesses that you are dying to hear. Each episode is carefully laid out and prepared. To this day it is the one podcast that I download the latest episode of the very second it comes out. Sword & Scale offers early access and supplemental episodes to patreon supporters but if you have student loans like I do, you’ll have to wait the two weeks and avoid the online spoilers!

Q: I hate how true crime podcasts seem to focus on the perpetrators, does this podcast discuss the victims at all?

A: Yes. Each episode is different in format; there will be episodes that focus on a perpetrator or suspect but there are also episodes that are dedicated to the victims of the heinous crimes described. Several episodes include interviews with family members of victims. Sword and Scale is a nice balance for true crime lovers who often feel that a victim’s story is never told or is even forgotten.

Interested in learning more about the Law? Attorney Britteny LaFond at Petit & Dommershausen, SC, is routinely out in the Northeast Wisconsin community serving her clients and staying connected. Contact the firm today to learn more.