DUI / OWI (Drunk Driving) Court – Madison, Dane County, Wisconsin

Criminal Cases

In Wisconsin all drunk driving charges after the first one are criminal charges handled in Circuit Court. First offense cases are not charged as crimes unless there is a minor in the car or there is an injury. Those non-criminal (civil) charges may be handled in municipal court or Circuit Court. Both criminal and civil drunk driving charges can have profound consequences. A criminal case can be either a misdemeanor (with a jail sentence) or a felony (with a potential prison sentence). This page describes Dane County practice but much of it is the same regardless of which county a case is charged in. Cases are charged where the events happened, not where the defendant lives. These are often the same place, but not always. Sometimes an incident charged as drunk driving may happen in more than one county, in which case it may be charged in any county where the driving under the influence occured.

Civil Cases – First Offense

First Offense OWI / DUI is not treated as a crime in Wisconsin unless there is a child in the vehicle or someone is injured. That does not mean it is treated lightly. First offense OWI / DUI in Wisconsin often results in more significant penalties than in other states that treat this as a crime. However, the procedures are a little different in non-criminal cases and many different courts can hear such cases. This page focuses on criminal cases in Dane County Circuit Court. See What Counts as a prior offense?

Misdemeanor OWI / DUI Cases

Arrest

Normally a case for OWI / DUI in Wisconsin begins with an arrest. After the arrest a person is asked to take a breath or blood test. (A urine test can be requested but never is requested.) Refusal to take the test can result is substantial penalties and can be counted in future cases as if it were a conviction. Often if a person refuses, the police will take the person to a hospital and have blood drawn without consent anyway. Once the testing has been completed the defendant is allowed to post bond or have someone else post bond. Checks are not accepted for bond. If a credit/debit card is used there is a substantial non-refundable fee for the use. The person arrested should be given a number of forms which can include one or more citations, a form called “Informing the Accused,” a breath test result, and some sort of notice that the defendant’s drivers license will be suspended or revoked in 30 days. This last form will also say that it can be used as a temporary drivers license if the person has a valid drivers license. The person will be notified of the place, date and time of the Initial Appearance. Note that this initial appearance usually comes long after another significant deadline has passed. In many cases another proceeding has started to take away the defendant’s license and with other consequences. See DUI / OWI (Drunk Driving) Wisconsin Ten Day Warning. It is very important that a person consult an experienced attorney as soon as possible and not wait until the Initial Appearance.

Our office meets with people who have been arrested for purposes of an initial consultation regularly. Unless we are hired by the defendant, there is no charge for these office consultations. (We do charge for meeting with defendants outside of our office or outside regular office hours.)

Initial Appearance

The first appearance in court is called the “Initial Appearance” or “Arraignment.” In Dane County this is where you get the formal charge, called a “Criminal Complaint” and bail is set. The Criminal Complaint is a formal document signed by a police officer under oath before a prosecutor. It tells the court which crime(s) the defendant is charged with and gives enough facts to support those charges. It tells the defendant what the maximum (and minimum) penalties for the offense are. The bail is almost always a “signature bond” where you promise to pay an amount of money if you miss court or if you violate other conditions of your bond. Usual conditions include not driving with any alcohol in your system and not driving without a valid drivers license. For people with more than one prior offense, the court may make absolute sobriety at all times a condition. A standard condition of all bonds in Wisconsin is that you not commit any crime and that you appear for all court dates.

The court automatically enters a “not guilty” plea at this appearance. If for some reason you were not fingerprinted when initially arrested, the court will order that you go to the Public Safety Building and be booked. If there have been problems in the past with compliance with bond conditions, some cash bail may be required. If cash bail is required, the defendant is held in custody until it is posted. Again, a requirement to post cash is unusual when people come into court without having been arrested and held to get them there.

At the Initial Appearance the prosecutor will usually know very little about the case or the defendant. They are not usually in a position to make any kind of sentencing recommendation. The Court Commissioner presiding will know even less. The prosecutor at initial appearances will have been handed a box of files on the way into court; he or she will not have read the police reports and did not draft the Criminal Complaint.

At the initial appearance in Dane County the defendant (defendant’s attorney) is usually given a copy of the police reports and served with a copy of a motion for “discovery” requesting information from the defense. Also included is a paper authorizing police agencies to release video or photographic evidence to the defense. An experienced attorney may demand additional information from the prosecution. When the defendant signs the bail bond, he/she is usually given a notice of the next court hearing – the Settlement Conference.

The Settlement Conference

The Settlement Conference will be set for a morning four to six weeks after the initial appearance. During settlement conferences the prosecutor actually handling the case should be in one of the conference rooms available. The defendant and attorneys are told which prosecutor is where. The meetings are usually brief but include some sort of offer from the prosecution as to what a recommended sentence will be if the defendant pleads guilty to one or more charges. A charge of operating under the influence is never amended to a lesser charge at one of the conferences (and seldom at any other time). Usually other traffic offenses will be dismissed in return for a plea to OWI/DUI. The offer may or may not be appropriate under judicial guidelines. Judges are not required to follow prosecutor recommendations and do not always do so.

If an agreement is reached, the prosecution and defendant will appear before the judge and a plea entered. Usually the defendant will be sentenced immediately and may be required to start serving the jail sentence right away. Often even if there is an agreement, the matter will be set for another date for the plea and sentencing.

If no agreement is reached, the matter will be set for further court proceedings. See Motions.

Felony OWI / DUI Cases

All fifth offense cases (or higher) are felony charges in Wisconsin. If the defendant is charged with a fourth offense and had a prior offense less than five years earlier, the fourth offense will be charged as a felony. If someone is injured in a second or third offense, the case will be charged as a felony. Felony means potential prison, loss of firearms priveleges for life, likelihood of supervision (probation or extended supervision), and other problems. A felony conviction will keep someone out of many jobs even if not really related to the job.

Arrest

Normally a case for OWI / DUI in Wisconsin begins with an arrest. After the arrest a person is asked to take a breath or blood test. (A urine test can be requested but never is requested.) Refusal to take the test can result is substantial penalties and can be counted in future cases as if it were a conviction. Often if a person refuses, the police will take the person to a hospital and have blood drawn without consent anyway. Once the testing has been completed the defendant is not allowed to post bond or have someone else post bond. A felony defendant must be seen by a judge or magistrate. This may take some time. During that time, the only person from outside the criminal justice system who can have face-to-face contact is usually an attorney.

At a bail hearing there is usually a Criminal Complaint. The magistrate or judge must be told what the arrest is for and shown some reason to believe that it is a valid charge. A Criminal Complaint serves that purpose. There are no bail hearings on weekends or legal holidays. It may take one or more business days for the complaint to be prepared.

At the bail hearing the judge decides whether or not to release the defendant prior to trial, and if so, under what conditions. Usually people are released unless they have a history of violating bail conditions. If there is a significant lack of ties to the community or other reason to think the defendant might not show up for trial, cash bond may be required. If it is it can be posted by cash, cashier’s check, or credit/debit card. Conditions of bond for felony cases often involve significant limitations on the defendant’s movement and activities.

The person arrested should be given a number of forms which can include one or more citations, a form called “Informing the Accused,” a breath test result, and some sort of notice that the defendant’s drivers license will be suspended or revoked in 30 days. This last form will also say that it can be used as a temporary drivers license if the person has a valid drivers license. The person will be notified of the place, date and time of the next court appearance, usually a Status Conference on a Monday afternoon. Note that this status conference usually comes after another significant deadline has passed. In many cases another proceeding has started to take away the defendant’s license and with other consequences. See DUI / OWI (Drunk Driving) Wisconsin Ten Day Warning. It is very important that a person consult an experienced attorney as soon as possible and not wait until just before the Status Conference. No plea is taken at this appearance on felony charges; a not guilty plea is entered on any related misdemeanor charges.

At the bail hearing/initial appearance it is routine to waive the time limit for a Preliminary Hearing if the defendant is released. There is a right in felony cases to have a speedy determination of whether or not there is any evidence for the charge(s). If the defendant is locked up, there is a right to have such a hearing within ten (10) days. If released then the right is to have such a hearing within twenty (20) days. Unless the time limits are waived, the case will be set for a Preliminary Hearing within those limits. If the time limits are waived the matter will be set for a Status Conference. Note that this status conference usually comes after another significant deadline has passed. In many cases another proceeding has started to take away the defendant’s license and with other consequences. See DUI / OWI (Drunk Driving) Wisconsin Ten Day Warning. It is very important that a person consult an experienced attorney as soon as possible and not wait until the Status Conference.

Status Conference

The status conference is a jumbled meeting in the hallway outside Room 1A at the courthouse. Prosecutors, defense lawyers, defendants and families are milling around. The primary purpose of this conference is to find out if the defendant wants a Preliminary Hearing. An offer may be made at this time, but not usually. If the defendant wants a preliminary hearing a time and date are set for that hearing. If the defendant wants to waive a Preliminary Hearing at this time, the Court Commissioner will listen to that waiver and make sure the defendant understands what he/she is giving up. This is done in Room 1A and the case will be set for further proceedings. See Arraignment.

Preliminary Hearing

A Preliminary Hearing is Wisconsin’s substitute for a Grand Jury and is only held in felony cases. The purpose is to make sure that there is real evidence of a felony and that the defendant committed that felony before everyone spends time and expense preparing for a trial. It is not the trial. Instead of having to prove things beyond a reasonable doubt, the prosecution merely has to produce evidence that gives the magistrate reason to believe that the defendant committed a felony. There is virtually no evidence that the defendant could produce that would negate the prosecution’s evidence at this level, so it is rare that a defendant will present evidence at a preliminary hearing. Nevertheless, it is a chance to question witnesses and get more information. If the defendant wins the Preliminary Hearing and the case is dismissed, that does not mean it is over. The prosecution can recharge the defendant and bring in more evidence at the next preliminary hearing. Winning a Preliminary Hearing is still usually a very good thing.

At the time set for the Preliminary Hearing both sides may have more information available and decide to waive the hearing rather than go ahead with it. Some items of evidence are admissible at a Preliminary Hearing that are not admissible at trial. The primary example of this is a result from the blood test can be admitted without expert testimony at a Preliminary Hearing but not at trial.

Felony Arraignment

If the Court Commissioner or Judge finds “probable cause” at a Preliminary Hearing or the defendant waives the right to have such a hearing a formal charge, called an Information, is presented to the Court and the defendant is asked to plead to the charge. If the defendant wishes to preserve possible errors for appeal and refuses to plead, a “not guilty” plea is entered. After arraignment misdemeanor cases and felony cases follow the same procedures.

Motions

If there were things wrong with the arrest or other police or court procedures, the defense attorney may bring a request for a court order, called a motion, before the court. Both sides may ask the court for an order as to future procedures or trial rules. These motions will usually be set for a separate hearing. At that hearing there may be people testifying and other evidence introduced. Such motions are sometimes brought even if the attorney bringing them does not expect to get the order requested. This can be done for tactical reasons so long as there is a real basis for the motion. In OWI / DUI cases motions are sometimes brought attacking the validity of prior offense convictions, attacking the validity of the stop, or questioning the sufficiency of the evidence for the arrest. Suppression motions may be brought challenging the admissibility of statements or of results of a questionable search.

Pretrial Hearings

One or more court dates titled a “pretrial hearing” will be scheduled. Such hearings are for the defense attorney and prosecutor to bring the court up-to-date on the status of the case. They usually involve discussions of the case between the lawyers followed by a brief court appearance. Although the time before the judge is usually brief, a pretrial hearing can take several hours because of court scheduling. The scheduling notice for a pretrial hearing will often also contain scheduling information for jury selection and jury trial dates.

Jury Selection

Jury selection in Dane County is always done on a Monday morning. (If Monday is a legal holiday, Jury Selection for that week is done on Tuesday.) During Jury Selection both sides are allowed to ask questions of prospective jurors to assure that they can be fair. Neither side gets to pick who they want to be on the jury; instead each side can indicate some people from the panel that they do not want on the jury. In other counties, jury selection is usually done the morning of the trial. Many cases will be scheduled for jury selection in Dane County on the same day for the convenience of prospective jurors and the courts.

Jury Trial

Trial by jury is a constitutional right for the defendant (and a statutory right for the government). At a jury trial the government must prove beyond a reasonable doubt that the defendant committed the crime(s) charged. The defendant does not have to prove anything. The defendant has the right to testify and call witnesses but is not required to do so. Evidence presented by either side is subject to cross examination (questioning) by the other side. Jurors may be permitted to ask questions. Both sides get to give a brief statement at the beginning of the trial about what they expect the evidence to show and at the end of the case about what they believe the evidence did show. The judge explains the law to the jurors before they decide the case. All of the jurors must agree on any verdict in a criminal case (guilty or not guilty). If the jury finds the defendant “not guilty” of all charges, the case is dismissed. If the jury finds the defendant “guilty” of one or more charges, the judge will be required to sentence the defendant.

Please note that most OWI / DUI cases going to trial actually have two separate charges for the same conduct. The first is for operating while under the influence of an intoxicant (OWI) and the second is for operating with a prohibited alcohol content (or drug content). Conviction of either of these carries

Sentencing

If the defendant is convicted by a jury or pleads guilty, the court will find the defendant guilty and sentence him/her for the crime(s) of conviction. Sentences are given within a range between the minimum and maximum penalty prescribed by the statute. Minimum sentences are rare as are maximum sentences; both do happen. Both sides are allowed to argue for a particular sentence, but the decision on the sentence is up to the judge and is usually follows the district’s judicial guidelines. Even if both sides agree on what the sentence should be, the judge decides. In all cases of third offense OWI (or higher) the defendant will be immediately taken to jail following sentencing. Jail terms are usually served with work release (Huber) and may be served on electronic monitoring. In certain third-offense OWI cases the defendant will be offered a treatment court option which will significantly reduce jail time. See DUI / OWI Treatment Court for more information about this.

Other penalties include loss of license and a requirement that the defendant install an ignition interlock device (breathalyzer) in all vehicles registered to the defendant and that the defendant not drive any motor vehicle without such a device for a period of time. Fines in OWI cases can be quite high, especially after the addition of court costs and other fees.

Whether sentencing follows a trial or is after a plea of guilty, the judge will consider not only the crime of conviction but other factors in the defendant’s life. A major factor can be treatment for alcohol or drug problems before sentencing.

Appeal

If a person is convicted of a crime in Wisconsin there is a right to appeal. An appeal does not generally look at guilt or innocence, rather it looks at the procedures followed in reaching a decision. If an appeal is won, the result usually is that a new trial is granted. Other remedies are possible in unusual situations.

The right to appeal, though, is lost if not exercised in a timely manner. The trial attorney is responsible for starting an appeal with a “Notice of Intent” but will often not be the one to handle an appeal. That notice of appeal must be filed within 20 days of the sentencing.

Plea Bargaining

While agreements may be reached with the prosecution in OWI / DUI cases in Dane County, those agreements almost never result in the dismissal of the fundamental OWI charge. They may include dismissal of other charges and sentencing recommendations. Generally the only way to get an OWI / DUI case dismissed completely is by convincing a judge that there is some fundamental flaw in the procedures used by the police or by winning a jury trial.

At any time prior to the entry of a jury verdict a defendant may enter a guilty or no contest plea to one or more charges. If this is a part of a plea bargain one or more other charges may be dismissed and there may be an agreement on a sentencing recommendation. Judges are not part of plea bargaining and are not bound to accept recommendations from anyone.

Warning – Use at your own risk.

This page is not intended to be legal advice or substitute for legal advice. It is intended to provide general information. Legal advice can only be given with a full understanding of the actual facts of a case, generally in a face-to-face consultation. Note that there are exceptions to many of the statements made here. No one should act or refrain from acting in court based on anything stated in this web page. My office does not give legal advice to non-clients over the phone or internet. Further, the law and procedures in drunk driving cases are changing rapidly. This page reflects procedures in place in Dane County, Wisconsin, on July 31, 2011.