Child Pornography Charge- No Jail- Dane County

Normally, we do not post about cases where a plea agreement was reached, unless the terms of the agreement warrant further discussion, this case meets that requirement.

Client was charged with 3 counts of Child Pornography. If the client was convicted on any of the charges, there is a 3-year minimum mandatory prison sentence. It doesn't matter the number of images, or the persons lack of record, the sentence must be 3 years in prison.

Client had a search warrant executed on his residence and in the course of that search, law enforcement located approximately 6 images in various electronic devices. The client made a statement to law enforcement which, frankly, didn't help.

Corey Chirafisi was able to secure an expert who reviewed the images and location where images were found. Through that work, it was determined that the client likely lacked the ability to actually retrieve the images. Further, the lack of dates associated with the images provided the defense with an out, the state had to prove the images were accessed within the statute of limitations.

After discussion with the prosecution, they agreed to amend the charge to allow an "out" for the minimum mandatory sentence. They agreed if the case was resolved, they would recommend no jail on the case.

At sentencing the court commented on the work done by defense counsel and agreed to follow the recommendation for no jail time. A very unusual result for a very happy client.

UW-Madison Discipline Hearing - Board of Regents Agrees to Review Non-Academic Misconduct

We have done more non-academic misconduct, include Title IX hearings in the past couple of years. They are unlike anything else that we do. The hearings are not like court hearings in that in some situations, the complaining witness does not even need to testify in order for a finding to be made against the client when they are students at a university. The punishment for non-academic misconduct can include suspension or expulsion from a university. Even if the student is never charged criminally for the conduct.

That is what we had in this case. Client is getting his Ph.D. at UW and is accused of multiple misdemeanor charges. The initial report made by the complaining witness described her assailant, which in no way matched that of our client. No matter, the university pressed forward. The request by the university was suspension for 2 years.

A hearing was held regarding whether the client would be punished by UW for his behavior and the university did not call the complaining witness to testify. There was no cross examination of her regarding the clear misidentification in the case. The hearing panel made the determination that the client was responsible for the action and expelled him from the university.

We appealed that ruling to the chancellor, who upheld the expulsion.

Undeterred, we appealed to the Board of Regents requesting they review the matter. The Board agreed with the client's claims that his constitutional right to due process may have been violated by not having the complaining witness testify. This ruling may allow the client to finish his Ph.D. In all the years we have been doing these, this was the first time the board intervened on behalf of a student.

Revocation Hearing- ALJ Does Not Revoke For New OWI Offense While Client Was On Probation For OWI

Revocation hearings are not something we do all of the time. However, there are situations in which we will represent a client, who has pending charges and a revocation hearing. In this case the client was on probation for OWI 4th offense. He was subsequently arrested for OWI 5th offense. The Department of Corrections moved for revocation of his probation.

Attorney Chirafisi represented the client at the hearing. Through cross examination of the arresting officer, it was established that the officer did not know when the client was actually driving his vehicle. The officer further indicated that he did not know when the client had consumed alcohol (either before or after the crash). Because the officer was unable to establish a time of operation, the ALJ would not consider the test result, which was approximately 6 times the legal limit.

Without that information, the revocation became virtually impossible for the department to win. Ultimately, the ALJ found that the department failed to establish proof of operating while intoxicated and agreed not to revoke the client. He was released from the hold. Him and his family could not have been happier.

OWI/PAC 2nd .15 (Dane County) Evidence Suppressed, All Charges Dismissed

This case involves a client who crashed his vehicle off the interstate into the cement barriers which are sometimes located near the median areas. When the police found him he had no shoes on, was covered in mud and stated he had been drinking shots, beer and mixed drinks.

The mistake the officer made was moving the client to a different location to perform field sobriety tests. Officers are allowed to do that, except, there is a limitation on the distance they can move someone who is not under arrest. We had a motion hearing on the distance the officer moved the client and the court found that the distance was too great. The court then suppressed the test result in the case which was a .15. The state could have tried to move forward with the accident and observations of the client. Thankfully, the state moved to dismiss all the charges. Great result on a motion that isn't filed that often.

Possession With Intent to Deliver Heroin >50grams-Case Dismissed (Dane County)

Dane County has a reputation of being "soft" on drugs and for certain drugs like marijuana, that reputation is well earned. Dane County is no different than any other county in the state when it comes to heroin however. If you are caught selling or trying to sell heroin, normally there are no breaks and when there is a gun involved, forget it.

Our client was caught with 125 grams of heroin and a .45 caliber handgun in a bag he was carrying. So far, doesn't sound very promising.

However, after speaking with the client, we learned that neither the drugs nor the gun actually belonged to him. He had agreed to store it for a relative of his. Still not looking so good.

We were able to convince the prosecutor that the family member was the person they should be looking at to prosecute and the state agreed with our position. Once the family member entered a plea to a charge involving drugs, the state dismissed all charges against our client.

Refusal Hearing (Dodge County) Refusal Dismissed

Each county handles their cases differently. In Dodge County, they hold refusal hearings before the first appearance and sometimes before the person's test result has been returned. That makes zero sense if a case might resolve, however, that's Dodge County.

So, in this case we informed the prosecution that the test result was not known yet and the initial appearance was scheduled for another 5 months. That didn't matter, the State wanted to move forward with the hearing.

The case wasn't particularly strong on the refusal. The allegation is the client used THC and was driving. Odor of THC in the vehicle and the client admitted to using THC approximately 1 hour before the stop.

The case looked like the client was going to lose, except the State, as they often do, stepped in it. They forgot what they needed to establish at a refusal hearing and neglected to put in the location of the stop or "venue". That is a requirement at any hearing. Corey Chirafisi raised that issue to the court and the Court agreed, dismissing the refusal.

The case is not over, however, it is a good start.

OWI/PAC .09 - Charges Amended (Dane County)

2 more OWI/PAC charges amended.

Case #2: This client was stopped for speeding 81 in 55. When police made contact with him he had bloodshot eyes, admitted to drinking and had an odor of intoxicants coming from his breath. The officer stated that the client failed field sobriety tests and a chemical test of his breath showed a result of .09.

Corey Chirafisi was able to raise a couple of issues which, like the last case, led to an amendment without having to go through a hearing. The client had made statements regarding a blood test and the officer ignored that request. Second, the officer told the client he was under arrest for an OWI 2nd offense when in fact it was his 1st offense. So Corey had 2 motions, one for failure to provide an alternative test to the client and one for misinforming him regarding what the offense was when the police requested the breath test.

The prosecutor, without a hearing, offered an amendment. Another great outcome for the client.

Theft of Secured Property - $450,000.00 - Charges dismissed at Preliminary Hearing (Columbia County)

Clients are hard working farmers in Columbia County who were, in our opinion, taken advantage of by a local bank. The bank believed they had secured assets from the client in excess of $450,000.00. When the client sold the secured assets, the bank went to the police. Client then charged with felony level theft. We got involved after a call from the clients civil lawyers requesting our assistance. We got involved and the case ended before it started.

At the preliminary hearing the investigator testified regarding his knowledge of the facts. Attorney Corey Chirafisi then cross examined the investigator. After about 20 minutes later, the investigator admitted he did not know specific facts which would be required to prove an intent to defraud. The court stated that there was no probable cause based on the testimony of the investigator. Case over after the 2nd appearance.

OWI/PAC 2nd .15 - Evidence Suppressed (Dane County)

Client was charged with OWI 2nd for crashing his vehicle under the interstate and having it come to rest next to a cement wall. Client was located walking without shoes, admitting that he drove his vehicle.

How we got the evidence suppressed in this situation was that law enforcement decided that based on the client being "shoeless" that they were going to move him to another location to conduct field sobriety tests. That doesn't work. The location of field sobriety tests must be within "the vicinity" of the stop. In this case, the court found that the officer moved the client a distance too far from the scene for that to be within the vicinity. Therefore, the court suppressed the test result. Case isn't concluded, however, good start.

OWI 3rd/PAC-Minor Passenger-Case Dismissed (Juneau County)

This client was charged in Juneau County with felony OWI (3rd offense with minor passenger is felony level OWI). The case appeared to have good facts to work with from the start. The police didn't see the client driving which helps substantially with the OWI portion of the case. Corey Chirafisi filed motions challenging both the basis to conduct field sobriety tests as well as a motion challenging whether the test result was admissible because the state did not have a time of operation.

After numerous delays, on the morning of the motion hearing, the state indicated that they opposed the motion, however, were not going to present evidence in the matter. Attorney Chirafisi moved for the court to grant the motion and suppress all evidence, the court agreed and suppressed all the evidence. At that point, the state dismissed all charges.

OWI 1st/PAC 1st (.156), Possession of THC - Charges Dismissed After Court Suppresses All Evidence

We have said over and over in other posts that we believe our results are out of the ordinary. This case was the second OWI charge which had all the evidence suppressed in the past two days.

This case involved the client operating his vehicle at approximately 3:00 a.m. He was stopped for having expired registration. He had refused to roll his window down more than a couple of inches and was not cooperative with the officer when trying to explain his actions that evening. Client's vehicle was seen outside a bar by the officer earlier in the evening. The officer noticed an odor of intoxicants and the client admitted to drinking. He was ultimately arrested and charged with OWI and possession of THC, his blood test was .156.

We filed motion to suppress the evidence based upon a lack of reasonable suspicion to perform field sobriety tests. The cop testified, continually adding information during his testimony to attempt to justify the request for field tests. However, at one point during the hearing, the officer acknowledged that he had "no reason to suspect impairment prior to having the client step from the vehicle." The judge suppressed all the evidence obtained as a result of the unlawful detention. The field tests, blood test and drugs were all suppressed. Case dismissed. That is how we do it.

OWI 2nd/PAC - .11 Charge Amended During Trial

The client was facing a second offense OWI, that is not unusual in our practice. The issue for the client was he was a CDL holder and the conviction would have meant a lifetime revocation of his CDL. The state was unwilling to move off of the OWI charge, so we proceeded to trial. The client was driving his motorcycle with a friend when the friend crashed. The client was contacted by the police and was put through field sobriety tests and ultimately arrested. He provided a sample of his blood which was a .112.

After the state called the officer to testify and before the analyst was called, Attorney Chirafisi raised the issue that the state had failed to establish a specific time of operation. Without that information, the blood sample result was in jeopardy. The state didn't even raise an argument. They immediately offered the client a reckless driving ticket. The amendment saved the client from jail time but more importantly, allowed him to continue to work. Client gladly accepted the amendment.

OWI/OWRCS- Dismissed-Grant County

Continuing with the previous post. What we didn't mention was that the client was also arrested and charged with Operating a Motor Vehicle While Intoxicated and With a Detectable Amount of THC in his blood.

During the motion hearing on the illegal seizure, the officer stated that he observed the client have "restricted pupils" and he was stopped in front of a known drug user’s residence. The Court found that the officer not only did not have a basis to continue with the detention of the client, the officer did not have a basis to believe the client was under the influence of drugs or that he had recently used drugs.

We have had a recent string of cases in which the state does not even bother to argue the motion, this was one of those times. The state conceded the motion and simply moved to dismiss the charges.

It was a good day.

15 Pounds of Marijuana - All Evidence Suppressed (Grant County)

Interesting case, fantastic results. Client was pulled over for having the wrong license plates on his vehicle. Once he was pulled over, the officer determined the title of the vehicle was also incorrect. So he suspected something more was going on. So, he called for a drug dog.

We reviewed the video of the interaction and determined that the officer intentionally delayed filling out the paperwork to allow the dog to show up. Once the dog appeared, it “hit” on the vehicle and police discovered 15 pounds of marijuana in the back seat.

We had a motion hearing with briefing on the issue and after all was said and done, the court agreed that the police unlawfully extended the detention and suppressed all the evidence.

OWI 1st/PAC .12 - Case dismissed

Huge win for client as he is an over the road truck driver who would have lost his job if he was convicted of an OWI charge.

Client was stopped for a loud muffler at 11:30 p.m. State trooper indicated he smelled an odor of intoxicants and the client admitted to having "a few" beers. Cop got client out to perform field sobriety tests.

Corey Chirafisi challenged the officer's decision to request field sobriety testing arguing that there was not reasonable suspicion to believe the client was impaired. After the hearing, the court made the finding that the officer did not have reasonable suspicion to request field sobriety tests and the court suppressed all the evidence. The state immediately moved to dismiss all charges.

Client was literally shaking. So happy we could help him save his job.

OWI 2nd/PAC .14 - Court suppresses test result

We have always said that we believe our results in cases are uncommon. Well, last week should help us back up that statement.

We believe that if a lawyer really works an OWI case, good things can happen. Client was pulled over for pulling out in front of a police officer. Officer said he smelled the odor of alcohol, client admitted to drinking and off the case went.

After the client was arrested, the officer informed the client that he was being charged with an OWI 1st offense, which turned out not to be correct. The client had a prior conviction that was within the 10 year look back period, therefore, it was not a first, rather a 2nd offense.

Corey Chirafisi filed a motion challenging the consent provided by the client to the blood sample based on the mis-information provided by the officer. After the motion hearing and briefing to the court, the court found that in fact the consent was coerced and the court suppressed the results.

The case has not concluded yet, however, we are off to a good start.

9 Counts in 2 Criminal Complaints Dismissed. Minimum Mandatory 25 year sentence - Dane County- Over 240 years of possible imprisonment dismissed

We have been saying for some time that our results are uncommon. No case we have handled better illustrates that fact than this one.

Client was charged in a case which gained attention based on his job, a teacher at a middle school.

He was initially charged in a 4 count complaint with among other things, first degree sexual assault of one of his students.

Almost 2 years later the child accused the client and his roommate of sexual assault, adding 5 additional counts to the charges. The new charges added a twist, the allegations triggered a minimum mandatory sentence of 25 years to two counts. Meaning if the client was convicted he would have to serve 25 years in prison before the possibility of release.

We filed a motion to dismiss the case because the police destroyed an interview with the child where the child denied he had ever been assaulted in any way. We also dug in and did the “hard shit” getting experts to go through forensic evidence. That evidence established the child was clearly lying about the allegations. We presented that evidence to the DA, along with our motion to dismiss.

Prior to the hearing, which has been a staple in our cases lately, the DA simply moved to dismiss all charges. It is the 3rd case in a row, handled by Corey Chirafisi that the hearing never actually took place, instead the government simply dismissed the charges.

We believe that these results are better than other firms. We are happy to put these results up against any other firm.

The client can try to piece his life back together after 2 long years. We are thrilled to be a small part of that process.

OWI 4th - amended to OWI 1st Offense - Clark County

We have mentioned the value of collaterally attacking a prior conviction. We make an effort to do that whenever we can. In this case, the client was charged with a felony level OWI. THe case wasn't particularly strong on the facts, however, the client had 2 uncounseled prior convictions. We were able to locate the information on those prior charges and challenged the prior convictions in circuit court. After the hearing, the state conceded that they could not defend the prior convictions and agreed to amend the charge to a 1st offense.

Instead of a felony level convictions, client received a fine of $150 and was not convicted of any crime.

OWRCS #2 - Delta 9-THC present - Dane County- Case dismissed

At first blush, the case looked difficult. Client had THC in his system making the charge a strict liability offense. If the government could prove the operation of the vehicle, they can get a conviction.

The police report indicated that the office pulled into a gas station and the client's vehicle was running, in a parking stall and the client was passed out. The officer indicated she had to pound on the window to wake the client.

The video showed a much different story. The officer never went up to the window. The client opened the car door for the officer. We had the officer in a clear misstatement. Attorney Chirafisi filed a motion to suppress the stop of the vehicle.

The state didn't even want a hearing on the case. They conceded the motion without a hearing. Can't really do much better than that.

Dane County OWI 4th, PAC .25 - Case dismissed at preliminary hearing

We are strong believers in doing preliminary hearings, unless the state gives the client a reason to waive the hearing. In this case, Dane County has a "policy" of not making offers at prelims, that policy ran into our "policy" of not being a doormat for the government.

The state attempted to introduce the test result, something which would have clearly gotten bindover, however, Attorney Chirafisi objected as there was no information the test was taken within 3 hours of driving. Court would not allow the test result to be admitted.

The State attempted to establish driving but didn't know the law on what constituted "operation" under the drunk driving laws. Attorney Chirafisi successfully argued to the court that operation was never established and the court dismissed the felony OWI.

The other part of this case which will be important moving forward is, the client has 2 other pending OWI charges. This case would have subjected him to a presumptive prison sentence. Not anymore. Client was beyond happy with the result.