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Lifetime, 12th-Offense OWI Avoids Prison in Dane County

At Chirafisi & Verhoff, we want the best outcome in every case.  In some cases, our clients still get convicted of an offense.  But limiting the damage from the conviction is often a success for our client.  This case is an excellent example of when that happens.  Our client is a middle-aged man.  Married with children, he has maintained a good job in the construction industry and supported his family throughout his entire life.  He also has struggled with alcohol since he was a teen. 

Our client’s work has taken him around the country.  During that time, he has been arrested, charged and convicted of OWI in many states, including Wisconsin.  In this case, the Sun Prairie Police Department stopped him for speeding and quickly realized he was impaired.  He refused field sobriety tests, as well as a blood test.  Police obtained a warrant, and drew his blood.  The reported results were a 0.17 percent.  During his contact with police, who thought it was a third-offense, the client was less-than cooperative.  He was also arrested for resisting. 

The client contacted our firm.  Attorney Tim Verhoff quickly recognized this was not a third offense and was more likely one that carried mandatory prison if convicted.  He advised the client to get into alcohol treatment.  The client’s only desire was to avoid a prison sentence – no small hurdle given the likely charges.  We waited for the blood results to be returned and arrived at the initial court appearance.  Sure enough,  the District Attorney’s Office had located the prior offenses.  The was charged with OWI-7th, PAC-7th and resisting. 

The first problem was that OWI-7th carries a mandatory prison sentence.  If the client wanted to avoid prison, we needed to get at least one of the prior offenses kicked out.  Attorney Verhoff went to work, ordering records from out of state to determine if any of the prior convictions could be attacked.  Luckily, he found one that could and he successfully attacked it.  The prosecution then filed an amended charging document, reducing the case to an OWI-6th. This was helpful because a prison sentence was no longer mandatory.  But as Attorney Verhoff knew, the judge could still order it. 

The case took approximately one-year to complete.  During that time, our client continued working at his job.  He engaged in significant treatment, and he was subjected to a monitoring that required him to submit three alcohol tests per day and engage in random urinalysis.  Between the time the case was charged and the time the case concluded, the client took more than 990 tests with no reported positives for alcohol.  Attorney Verhoff pressed the prosecution to resolve this matter for an agreement by which the parties both recommended the judge impose probation.  But the prosecution wouldn’t budge.  The District Attorney’s Office took the position that this was only a sixth offense because of the successful attack on the prior.  Moreover, the prosecution was aware of 12 OWI cases from around the country involving our client.  Only five of those cases could be used legally for purposes of counting priors, but the prosecution planned to use that as ammunition to seek prison.  The offer on the case was simple, plead to the OWI-6th and argue sentence.

Of course, our client had an option.  He could try the case, but the facts were bad and a conviction was highly likely.  Attorney Verhoff believed an argued sentence was in his best interest, and Attorney Verhoff made a very unusual strategic decision.  He knew that to avoid prison, he would have to recommend a significant jail sentence.  The jail sentence would be preferable because it would enable the client to receive work-release – a significant goal for the client.  Attorney Verhoff knew he had to structure his proposed sentence in a way that made sense to the judge.  The prosecution had not demanded the client plead to the resisting charge.  Doing so would increase the possible amount of incarceration the client faced.  But Attorney Verhoff had a carefully weighed the sentence he wanted to recommend, giving the client the best shot at probation.  He told the client to plead to more charges than the prosecution was seeking.

Prior to the plea and sentencing hearing, Attorney Verhoff submitted a lengthy memorandum to the judge.  He outlined his arguments, provided background on his client, character letters, and treatment documents.  The parties appeared before the judge.  The client entered pleas to both the OWI and the resisting.  The prosecution then began a lengthy argument, focusing on the 12 prior offenses. 

When the prosecutor finished her argument, the judge was clearly unhappy with our client.  She turned to Attorney Verhoff, stating “I can’t wait to hear what you have to say.”  Attorney Verhoff then meticulously and passionately went through his arguments.  He addressed all the sentencing factors, and explained why his proposal – vastly different from the one made by the prosecution -- satisfied the factors.  He concluded by explaining why society was actually better off and the community was actually safer with his recommendation.  By the time Attorney Verhoff finished the argument, the judge was on board.  The judge informed the prosecutor that there was nothing “wrong” with her recommendation for prison, but she flatly rejected it and adopted Attorney Verhoff’s recommendation in its entirety.  As he walked out of the courtroom, several stunned lawyers approached telling Attorney Verhoff they couldn’t believe he had been able to achieve this outcome.  Even the prosecutor contacted him the next day to tell him how good she thought the argument was.  Most importantly, the client was utterly delighted.