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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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Stiffer Penalties for OWI Offenses in Appleton and Oshkosh

Stiffer penalties are now coming in 2017 for people convicted of Operating While Intoxicated in Appleton, Oshkosh, and throughout Wisconsin.  The new law becomes effective, kicks in, on Jan. 1, 2017.  The new law makes a fourth OWI offense a felony and will also increases the maximum sentence for fifth and sixth offenses from three years imprisonment to five years imprisonment.

Petit & Dommershausen, S.C. would like to remind our friends and neighbors of the great options available for a safe ride home if you have had too much to drink.  Should you or a loved one encounter a legal matter related to OWI, please do not hesitate to contact our firm at 920-739-9900.

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Consequences of a Criminal Conviction in Wisconsin

Anyone charged with a criminal offense faces the possibility of incarceration, fines, and lifelong consequences. You should consult a lawyer to fully understand the consequences of a criminal conviction.

Anyone charged with a criminal offense, as opposed to a civil offense, faces the possibility of incarceration. Many times, potential clients call to ask whether or not they need an attorney. Our standard response is that anyone facing the possibility of incarceration and the large fines that are available to be levied against defendants in a criminal case certainly should get legal counsel if they can afford it. When someone’s liberty is at stake, experienced, skilled and aggressive representation can make the difference between time behind bars and time spent with loved ones and in a productive capacity.

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OWI (DUI/DWI) and Your Driver's License

1) Arrest and Sample
In Northeast Wisconsin, nearly all law enforcement agencies prefer to test your blood upon arrest for OWI. In most cases, the blood sample is sent to the State Hygiene Lab.
2) Notice of Suspension
Usually, the arresting officer will receive the results of that blood test within a few weeks. If the sample indicates a prohibited alcohol concentration, the officer will forward the results on to the Department of Transportation (DOT) and the officer will provide you with a “Notice of Suspension of Operating Privilege.” This document informs you that the DOT will be suspending your license within 30 days of you receiving the notice.

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