WISCONSIN CRIMINAL DEFENSE ATTORNEYS
CHIRAFISI & VERHOFF
This question is asked by clients all the time. Obviously, by the time the client meets with us, that decision has been made, but they still ask whether they should have taken the breath or blood test. Understanding that there may be a situation where this advice could change, in general, the client should take the blood/breath test when offered.
There are multiple reasons for this. First is that this firm puts a great deal of weight in doing administrative review hearings. Many of the best results we obtain in OWI cases stem from the information that we get from the administrative review hearing. That hearing is only available when the client agrees to take the blood or breath test, and their result is above the legal limit.
Refusing to submit to the test can lead to a refusal hearing, but hearing it in front of a judge, not a hearing examiner, and a loss at the refusal hearing has far greater consequences to a driver than what occurs at the administrative review hearing. The administrative review hearing can provide an opportunity to actually question the arresting officer in the case about the facts and circumstances surrounding the arrest. In reality, what they do is provide your lawyer an opportunity to question an eyewitness to your case for approximately 20 to 25 minutes. There is no good reason that anyone can give us why that hearing should not be done. Many times they are a gold mine of information and provide the information we need to file motions to suppress evidence. Make sure they are done. Secondly, if the client takes the test, it provides the lawyer with something to suppress – their test result. The reality is in most cases if the government loses the test result, they will amend or dismiss the case against the client. If the client refuses to take the test, the refusal can still be won, but they are much more difficult to win. Give the lawyer a chance to do what they need – get rid of the test result in the case. Next, if you have a test result, the government must prove that was your test result at the time of presentation to a jury. If you refuse to take a test, your refusal is decided by a judge, not a jury, and the chances of being successful are greatly diminished. Any drunk driving lawyer would prefer the client’s case be heard by a jury, not a judge. The issue surrounding your test result will only be heard by a jury if you actually take the test.
Finally, the consequences for refusing to submit to a test are far harsher on your driver’s license. In every situation, no matter what offense you face, if you are found to have refused, you must have an IID (ignition interlock device) installed in your vehicle and you will have some period of time without any driving privileges. It would be our advice that when confronted with the choice of taking the blood/breath test or refusing, we would encourage clients to take the tests. It provides us with the best overall opportunity to help them win their case.
Guilt is not black and white. A peron with a crime may initially not want to hire an attorney because the person believes they are guilty and they should admit the guilt and take their punishment. There are multiple issues a person faces from “just pleading guilty” in a criminal case. First, you need an attorney to verify that the Government charged you with the proper offense. Many times the Government will add multiple counts to a criminal complaint. Things that you don’t believe you did and things they may not even be able to prove. The Government does it to push you in a corner. If you are charged with multiple crimes, it becomes more likely that you will give in and plead guilty. The Government also does it as a bargaining chip to use against you. Criminal defense attorneys sometime act as a quality control agent against the Government. We ensure that what the Government charges you with is what they can actually prove. Another reason to hire an attorney is that there are multiple phases or parts to a criminal case. There is the pleading (guilty/not guilty/no contest) part, but there is also the sentencing part. You may be guilty of an offense but then the question becomes what is the appropriate punishment? Lawyers have the ability to negotiate cases where felonies can be dismissed under certain circumstances (expungement, deferred prosecution agreements, etc.) Sentences have many different areas of concern for the defendant. Are they going to prison? How long is probation going to be? Is there county jail time involved? Will they have to have an ignition interlock device installed on all of their vehicles? Lawyers are able to negotiate these things for clients, keeping in mind the client’s goals for the case as well as the concerns they have with various options. Finally, I do not care if the client believes they are guilty. What I care about is whether or not the Government can prove an offense. The law is set up so the Government bares the burden of proof. They must satisfy a jury “beyond a reasonable doubt.” Sometimes the Government can prove their case, and sometimes they cannot. If they cannot prove something, you shouldn’t be convicted. The one thing that is a certainty in the law is that handling your own case without a lawyer puts you at an incredible disadvantage. You are handling a situation against a lawyer whose job it is to convict you. If you wouldn’t try to fix a broken arm without the help of a doctor, why would you risk handling a situation that could affect your liberties and your future without a lawyer?
At the very least, you should contact a lawyer as soon as you think you might be in legal trouble. This means calling a lawyer before talking to the police. This means calling a lawyer before the first court hearing. This means calling a lawyer before a charge has been formally filed. In many instances, individuals are arrested but given a notice of a court date for a later time. Don’t wait until after the case is charged to contact an attorney. What is better than a win a trial? The sweetest victories are those that come before a charge is even issued. This saves the client public embarrassment, the anxiety of what will happen while the case is pending or how it will end. Often times, criminal cases can take months to resolve. Living under the stress of uncertainty can be devastating for clients. Some potential clients have indicated they preferred to wait until the District Attorney’s Office decided whether or not to file a charge against them before hiring a lawyer. At our firm, we believe this is a mistake. Early intervention may lead to no charges being filed against you or reduced charges being filed against you.