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Dane County Client Avoids Felony OWI Charge at a 0.31 Test and Crash

Our client was involved in a traffic crash, striking a vehicle from behind, which resulted in a chain reaction.  Authorities responded to the scene and smelled an odor of intoxicants coming from our client, who admitted to consuming alcohol before the crash.  Due to injuries, the client could not fully perform field sobriety tests.  He agreed to a preliminary breath test (PBT), which registered 0.13 percent.  Authorities transported him to a local hospital, and he agreed to a blood test with a reported value of 0.31 percent.  One of the other drivers also was transported to a local hospital, reporting a headache and general pain.  He was later diagnosed with a concussion.  The client immediately hired Chirafisi & Verhoff.  He made it clear that he needed to avoid a felony charge and conviction at all costs, as a felony would have catastrophic consequences on his family.  Even before the test results came back from the laboratory, Attorney Verhoff began negotiating the case with prosecutors.  The other driver had suffered an injury that could form the basis to file a felony charge, but Attorney Verhoff argued that the delay in diagnosis meant he could attack it. In addition, Attorney Verhoff obtained maintenance records for the laboratory equipment used to test the client's blood.  He learned that the laboratory was having two different mechanical problems with equipment in the days leading up to the client's test, and the equipment had to be taken off-line for repair days after the client's test.  Attorney Verhoff argued, given the difference between the PBT and blood test results, the 0.31 blood test may have been faulty due to mechanical problems in the laboratory.  In addition, given the timing of the client's last drink and his body weight, it was possible he was under a 0.08 percent at the time of operation.  In the end, the prosecution agreed not to charge the client with a felony crime, but simply a misdemeanor OWI-2nd.  The client ultimately entered a plea and was convicted of the charge, but considered it a huge victory under the circumstances.