What if I failed the Field Sobriety Tests?

It’s the middle of the night. You are driving home from a local tavern or a buddy’s house. You’re tired and looking forward crawling into your nice warm bed. Much to your surprise, you see the lights of a police car in your rear view mirror. What was a nice evening, has just turned into a nightmare. You could lose your license, your job…even your freedom because the officer suspects you of driving under the influence. You stop,  and after a few words with the officer (perhaps he smells that drink you had before you left), you are standing at roadside trembling with fear, when he asks you to perform field sobriety tests, some of which you couldn’t do on your best day. It’s One o’clock in the morning after a few drinks and you are far from your best. Are you doomed? Is it all over now? For many people this is the beginning of the end. But it doesn’t have to be.

First and foremost: This is not the time to get indignant. Be polite and cooperative with the officer. You don’t score any points by copping an attitude. The officer may take note of your good attitude in his report. He will most definitely mention it if you were belligerent. A bad attitude can affect the outcome of your case. Judges and prosecutors do not make good offers to defendants who are abusive to arresting officers. If you choose to take your case to trial, you will look like an angry drunk to the jury if you lip off to the officer.

There is quite a bit a good attorney can do, despite apparent poor performance on field sobriety tests. Through cross examination it is possible to chip away at what might appear to be a rock solid case due to field sobriety test results. The officer will undoubtedly report that your speech was slurred, deliberate or thick tongued. The officer has never met you before and has never heard you speak! Maybe you talk that way all the time. You were likely asked to walk a straight line while keeping your feet in a heal-to-toe position. You might make one mistake on this test and have it count as a failure. There are several elements to this test. You may have gotten 80% of them right yet still failed. Last time I checked, 80% was a B- not an F.  A lot of these clues can be minimized by a skilled attorney.

Get to an attorney who regularly represents the accused in DUI/OWI cases as soon after you are released as possible. Fresh recollection is always better than memory that has diminished over time. Chances are the officer has generated his field notes the evening of your arrest. The report will generally be thorough and make note of every indicator of intoxication he notices. He is trying to build a case against you from the moment you step out of the car. I very rarely see information that has been included in a police report to make the accused look innocent!  The police deserve our support for the good work that they do, but when they are placing you under arrest, despite what may be a friendly and professional demeanor, they are not on your side.

All is not lost if you failed your field sobriety tests. Most people arrested for drunk driving are ultimately convicted. However, a large portion of those people plead guilty at their first appearance. They are guaranteed a conviction. Many who hire lawyers will still be convicted. Perhaps they are facing jail time and accept an offer to plead in exchange for a shorter sentence. Maybe the deck is otherwise stacked and a plea is in your best interest. Despite the figures, a DUI/OWI case can be won-even if you failed your field sobriety tests. In fact, a large number of OWI acquittals are in cases where the officer reported failures on most if not all of the tests. If you or someone close to you has been in this position, the best advice I can give is to consult with an attorney who practices in this field regularly.

Drink responsibly and drive safely,

Eric

How Can You be a Priest and a Lawyer?

I have made a career of defending the rights of the accused. I am also an Anglican priest and Canon Lawyer of the Diocese of Quincy (ACNA). I am often asked how I can function in both vocations. We in the church refer to someone like me as bivocational. The Church has a long history of clergy who work in the secular world. St. Paul was a tent maker. My father, also a priest, is a licensed psychologist. I think people assume that because I am a criminal defense lawyer, that I am required to do morally and ethically questionable things on a regular basis. The simple fact is that nothing could be further from the truth. Lawyers are held to a high ethical standard in the way we deal with clients, their money, their information and the courts. In fact, I find that my two vocations have a great deal of overlap.

Representing Guilty Criminals

The most common question I get is related to the guilt or innocence of my clients. “How can you defend someone you know to be guilty?” I explain that I am part of the system. I am a check on the power of the State that seeks to convict and possibly imprison my client. The beauty of our system is that it is adversarial. I read a book by Seymour Wishman years ago called *Confessions of a Criminal Lawyer. *The author, a respected attorney, surveyed other judicial sytems and concluded from personal experience that our’s is flawed but still the best on earth. That system requires able counsel on both sides of the aisle to enforce the law. In fact, I know a defense lawyer who always raises her hand during jury selection when the judge asks if anyone is in law enforcement. This raises an eyebrow or two, but clearly drives the point home. Sure, many of my clients have committed a crime. However, these people are guaranteed able counsel under our constitution and protecting their rights is a noble pursuit. As for any conflict with my other vocation, I am pretty sure it was our Lord who was crucified as a result of an unjust legal proceeding. Remember how the authorities sought individuals to bear false witness against him as Jewish law required two corroborating witnesses before a capital charge could stand.

“Publicans and Sinners”

And the scribes of the Pharisees, when they saw that he was eating with sinners and tax collectors, said to his disciples, “Why does he eat with tax collectors and sinners?” And when Jesus heard it, he said to them, “Those who are well have no need of a physician, but those who are sick. I came not to call the righteous, but sinners.”
– Mark 2:16-17

It seems that there are those who think it is somehow unseemly for clergy to spend time associating with those who have committed crimes. I personally cannot think of anything more seemly for a Christian than to provide care for these people. As a priest, and one who represents Christ in His Church, I am called to reach out to those who have separated themselves from God through their sinful behavior and lead them to reconciliation. As a lawyer, I am often called on to help the broken find their way. Those same people who are scandalized by certain elements in society must also remember that “Publicans and Sinners” show up in all kinds of places, sometimes as regular churchgoing people. Sometimes even they need to be made familiar with the voice of the Good Shepherd.

How can I, a priest represent the rights of the accused? How can I not?

Cooky Case of The Day: Man Gets DUI in Barbie Car

Here’s proof that when they say “motorized vehicle” they mean any motorized vehicle. They have made cases stick for drunk garden tractor driving and farmers driving to and from the tavern for a beer and pickled egg between fields. The Telegraph reports that an intoxicated man was arrested and lost his license to drive for operating his daughter’s Barbie Car while under the influence. follow this link to read the article.

Cooky Case of the Day: Aussie is Ingenious Drunk Driver

Here’s a link to a case about a guy who couldn’t wait until he got to the bar and invented his own “cooler car” powered by a 50cc motor.

The Innocent Owner Defense: Wait! That’s My Car!

Parent’s have bought cars for their kids for a long time. For our children, the ownership of that first car is a rite of passage in a young person’s life. This is certainly the case here in Southeastern Wisconsin. A good friend of mine just presented his daughter with her first car for her birthday complete with a bow on the hood.

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Parent’s usually elect to retain title to their kids’ vehicles-even when they go off to college. My parents were kind enough to take responsibility for my jalopy, a big Black 1965 Chrysler 300, when I took it to school and parked it in my fraternity parking lot. Think Animal House. That car had every appearance of being my car. But I understood that Dad was paying the bills and it was really his until I could pay for it myself. Not sure I ever did. (Thanks Mom and Dad) but who does the law think owns your kid’s Studebelchfire? At least one Wisconsin court has held that despite registration in a parents name some ownership is limited.

Here’s it played out. A young women took “her” car registered in Daddy’s name to college where it was parked for the school year. She got arrested on drug trafficking charges in the car and the State initiated an action to take it . But it’s Dads, right? WRONG! The court in State v. One 2010 Nissan Altima, 2013AP2176, District 2, 6/11/14 (not recommended for publication) held that defendant was the “owner” for the purposes of the forfeiture law. Her argued he was the “innocent owner” under § 961.55(1)(d)2., which provides:

“[n]o vehicle is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without the owner’s knowledge or consent.”(¶¶3-7, 9).

The court rejected this argument. The court held that the registered owner’s financial stake was not more indicative of ownership than the daughter’s possession and control. Read that again. As a lawyer the case tells me that the innocent owner defense probably only applies to car thefts in the future. As a citizen, this case tells you that the government is once again willing to erode your property rights in order to achieve it’s goals. As a parent, it tells you to think twice before buying junior that car.

Temporary Restraining Orders Revisited

About a week ago I wrote a post on this blog entitled I have been served with a Temporary Restraining Order, now What? It received a fair amount of attention so I thought I had better write a follow up. There are two types of TRO’s granted in anticipation of an injunction hearing in Wisconsin regularly. Those related to harassment which often arise out of neighbor disputes and those related to domestic abuse. This post will address the domestic abuse variety. If you have been served and you are asking yourself if you need a lawyer don’t think about it any more, you do. If the court grants an injunction, there are serious consequences. These are serious cases that require the attention of a skilled professional. Some of the consequences you face include:

* Not being able to go to certain places or to do certain things.

* Losing control of certain property.

* Having to move out of your home.

* Not being able to see your children, go near other relatives or near others that live with you.

* Losing possession, care and control of your family pet.

* Not being able to own a gun or ammunition. If you already own a gun, it may have to be turned in or sold.

* If the TRO is violated, you may go to jail, pay a fine or both.

With all of these potential consequences, your hearing will come up rather quickly on the court’s calendar. You will need to consult with an attorney immediately in order for him to represent you effectively. Sometimes these matters arise out of emotional situations. Other times they are filed as a means of gaining advantage in an anticipated placement Often in the light of day, cooler heads prevail and an amicable settlement can be reached. Often, your spouse or significant other does not want to terminate that relationship and an effective negotiator can get help to get you back on track. You will not be able to have these discussions as there is a court order preventing you from doing so.

Unfortunately, often settlements cannot be reached and these cases need to go to hearing. You need a skilled litigator to advance your position and protect you from the direct consequences of this order and any potential criminal penalties. It is also worth noting that these cases appear on ccap. A future employer may not want to hire someone who has been on the wrong end of a TRO. You will need to provide your attorney with accurate information and any witnesses available. Many of these cases are nothing more than a “he said, she said.” The court will be likely to see things your way if you can support your claims.

Lastly, keep a cool head. If you lose in front of the Court Commissioner, you can always file a de novo appeal which gives you a second opportunity to be heard. You must file for this within the required timelines, so please see an attorney. Good luck.

Do I need a Lawyer or Don’t I?

That’s right. I said it. There are times when you don’t need a lawyer. You should be talking to one if you are asking yourself whether or not you need to hire one. Many lawyers will discuss your case with you over the phone or even meet with you for an initial consultation free of charge. I do this all the time. During the course of this meeting we will certainly cover the specifics of your case in detail. I will also advise you whether you need to hire a lawyer at all. As much as I want your business, I will give you a straight answer to this question. Even if it costs me a few bucks. I would rather have you call me when you really need me than pay me a large fee when you don’t.

Every criminal defendant needs a lawyer, no ifs ands or buts about it. If you are facing the possibility of jail time, even if that possibility is remote, you need a lawyer. Civil forfeiture cases (traffic and other matters heard in municipal court) raise interesting questions for the accused. There are technical defenses that the average layman is not equipped to argue.

In most cases, a lawyer can be helpful even if counsel merely relieves you of the stress associated with a court appearance or missed work. In other cases, an experienced attorney simply has means at his disposal to get the accused the best possible outcome. You may not need a lawyer, but you do need to make an educated decision before you go into court unrepresented.

Do I really need a Lawyer for a First Offense DUI?

If you are arrested for a repeat offense drunk driving or DUI in Wisconsin and convicted, there is no question that you are going to spend some time in jail as part of your sentence. Get convicted enough times, you are going to prison. On a first offense, the penalties are not as severe. In fact, there is no incarceration associated with a first offense conviction. So why invest in the services of an qualified attorney who is likely to cost more than a few bucks?

Wisconsin remains the last holdout in the criminalization of these offenses. In all likelihood this is because of the very strong lobby of the Tavern League in a state where drinking is a way of life. Drive into most unincorporated towns, you will see a convenience store, a church and two bars at the only four corners in town. While this is somewhat amusing, it is also a contributing factor to our significant problem with alcoholism and therefore drunk driving in Wisconsin.

So, first offense DUI’s a little more than a serious traffic ticket and I don’t need a lawyer for that, right? WRONG! A skilled advocate can accomplish a lot for you in one of these cases. First of all, traffic ticket or not, these are cases that require a lawyer whose practice focuses on this highly technical area of law. From constitutional challenges to scientific evidence, you need someone on your side with a strong understanding of all of the issues. In addition, even a first offense conviction can be devastating to employment in many occupations and in this economy no one needs to lose a job.

Most people arrested for DUI in Wisconsin are convicted so it’s not worth the expense, right? Once again WRONG! Even if you do not have a case that you might beat throughout pretrial motions or a jury trial, a skilled advocate is still essential. A lawyer can lessen penalties, like loss of license or fines and most importantly, might be able to help you with the issue of ignition interlock. In Wisconsin, if your blood alcohol level is found to be .15 or greater at the time of driving you are required to install an ignition interlock device in every vehicle you own. Imagine how happy your spouse who is already angry with you about the DUI will be when he or she has to blow into an IID in order to drive. Another issue many of my clients face is the shear embarrassment of driving with an IID if they drive clients around as part of their job.

I tell all of my clients that even if they hire an attorney the odds are generally against them. I’m honest. However, without a lawyer, a conviction and perhaps worse consequences at sentencing are practically guaranteed.

Call me with your me with your questions about drunk driving defense or any other criminal/traffic matters at 262.569.8300 or email me at etr@schoberlaw.com

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