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In 1996, Congress extended the prohibition on gun possession to persons convicted of a misdemeanor crime of domestic violence. See 18 U.S.C. § 922(g)(9). Defense lawyers have for some time attempted to avoid this prohibition by negotiating with prosecutors to strike the domestic violence language from the criminal complaint and pleading their clients to “otherwise disorderly conduct.” In Koll v. The Dept. of Justice of the State of Wisconsin, 2008AP2027, the Court upheld the decision of the DOJ to deny Joseph Koll a handgun due to his plea to a charge of disorderly conduct that was amended so that it did not include domestic violence as an element but still involved a victim with whom he had lived in a domestic relationship. The Court wrote:

The question before us is whether Koll’s conviction for disorderly conduct prohibits him, under the Gun Control Act, from exercising his Second Amendment right to bear arms. The U.S. Supreme Court has unambiguously spoken, and the facts can lead to but one conclusion. Because Koll had a domestic relationship with the victim of his misdemeanor crime of disorderly conduct, he may not possess a gun.

Defendants accused of these types of offenses must have their matters thoroughly scrutinized. In a state like Wisconsin, where hunting is very popular and the right to bear arms is cherished, these charges must not be taken lightly. While domestic violence should not be tolerated and the congressional record reveals that the presence of a gun in a household increases the likelihood that a domestic incident will escalate to a homicide threefold, one’s constituional rights should not be abandoned in a cavalier fashion.

I hope you all had a happy and safe New Year. I wish you all the best in 2009.

Anyone who has read the Journal Sentinel in recent months must be aware of the fact that concern over the Drunk Driving issue has reached a very high level. It is likely that the legislature will enact changes in the OWI law in the current session. Changes proposed include criminalization of first offenses and classifying third offenses as felonies. Supporters argue that the changes would bring Wisconsin in line with most of the rest of the nation and toughen our stance on drunk driving. Detractors insist that large expense in the form of new judges, prosecutors, public defenders and increased cost of incarceration are not wise while Wisconsin faces a significant budget deficit. Perhaps increasing treatment options and lowering our number of citizens with substance abuse problems would be a better way to spend our tax dollars.

I give most of my clients the following information on a folding business card. I thought it would be of value to those of you reading this blog. It is also on my web page. Remember, it helps you to assert your rights but does not give you license to be mouthy to police officers:

Officer, please understand I refuse to talk with you until I consult with my attorney. I also refuse to consent to any search of these premises, or any other premises under my control, or in which I have a possesory, proprietary or privacy interest, including my car, my body or effects. I hereby demand to immediately be allowed the reasonable opportunity to obtain the advise of my attorney by telephone.

I desire to exercise all my rights guaranteed by the Constitution of the United States and the State of Wisconsin, to be free from your interference with my person or affairs. If you attempt to question me, I want my lawyer present. I refuse to participate in any line-up or perform any physical acts (except OWI related tests), or to speak or display my person or property at your direction, without first conferring with my lawyer. If I am under arrest, I wish to invoke and exercise my Miranda rights. If you ignore my exercise of these rights and attempt to procure a waiver, I want to confer with my lawyer prior to any conversation with you. If I am to be taken into custody, removed from my present location, or separated from my property, I request a reasonable opportunity to make arrangements to secure my own property. I do not consent to any impoundment or inventory of my property. I do hereby waive any claim of liability for loss, theft or damage against you, your superiors, or any other authority, and agree to hold all harmless therefrom, if I am afforded the reasonable opportunity to arrange for the safekeeping of my own property. If this reasonable opportunity is denied or is unavailable, I demand that only such intrusion occur as is minimally necessary to secure such property, hereby waiving any claim of liability for your failure to scrutinize the property or its contents prior to it being secured.

If I am not under arrest I want to leave. If I am free to leave, please tell me immediately so that I may go about my business.

Even a Fish wouldn’t get caught if he’d keep his mouth shut.

I was recently able to obtain an amendment in an OWI 1st case. Because I was able to show the prosecutor that my client, who measured a .13 on the intoximeter may very well have been below .08 at the time of driving, the case settled for inattentive driving, a minor violation.

In the spirit of accessibility and shameless free self promotion, you can now find my profile on LinkedIn. Please look me up.

Be advised that the Waukesha District Attorney has changed his policy on OWI related Operating After Revocation cases. In the past they had generally refused to amend these charges, even if the defendant had reinstated his or her operator’s license. The typical offer has been to take no position on penalties for a plea to the charge. Penalties could include significant jail time, fines and further loss of license. The Waukesha DA has taken the position that their office will recommend jail on all of these offenses. Defendants may want to litigate these cases more vigorously.

As some of you know by now, we have moved and are up and running in our new location. The new office is in the Avenue Square Mall at:

175 E. Wisconsin Ave, Ste J
Oconomowoc, WI 53066

Please stop by and see the new space.

It is fairly common knowledge that if you have two suspension or revocations of your operating privilege within a twelve month period not arising out of the same incident, you will not be eligible for an occupational license on the second revocation or suspension. What is not commonly known is that by delaying reinstatement on the first revocation or suspension you may be eligible. This results in a longer period without a regular license, but allows for less time without any privilege at all.

Many of the Judges in Waukesha County have changed their policy regarding allowing convicted repeat OMVWI offenders to report to jail sometime after their sentencing date. (Wisconsin law allows up to 60 days) This is largely in response to recent tragic crashes involving impaired drivers. One such homicide in Oconomowoc took place while the defendant was awaiting his report in date for a recent conviction.

While a few of the judges are making this determination on a case by case basis, I am advising my clients to be prepared to report in on their sentencing date. This will require making arrangements for verification of employment prior to the sentencing hearing.