Updated on January 19th, 2024 at 07:32 pm

Updated on January 19th, 2024 at 07:32 pm

Case Summary – 2016 Suppression win, case dismissed

Evidence suppressed for lack of probable cause to arrest .17 OWI first offense in Outagamie County.

In a first-offense OWI case in Outagamie County, Criminal Defense Attorney Dan Skarie demonstrated his proficiency in defending OWI cases in Wisconsin. The client, who was confronting the possibility of license revocation, installation of an Ignition Interlock Device (IID), and participating in an Alcohol and Other Drug Assessment (AODA) along with a driver safety plan, sought Attorney Skarie’s vigorous legal experience.

Case Overview

Profile of client

A female in her late 50’s, had drank beer at a fall festival in the Appleton area. On her way home, someone called the police about her driving recklessly.

Our client had no prior legal issues.

Details of the arrest

A reckless driving complaint was called in by a fellow motorist. The caller:

  • identified the make, model, and license plate
  • stated the client weaving all over the road and almost entering the ditch

The caller got off the phone with dispatch as the client entered a mini mart, leaving their name and phone number with dispatch. The police officers never followed up with the caller.

The officer got behind the client, turned on the dash cam, and recorded the driver going over the fog line four times.

The officer pulled the client over for deviating from her lane over the fog line.

After pulling the client over, the officer observed slurred speech and bloodshot eyes.

Incident Location: City of Appleton, Outagamie County, WI
Duration: Arrested on 9/26/15. Evidence was suppressed on 2/3/16. (A little over 4 months)
Previous Convictions: No, first offense OWI
Lead Attorney: Attorney Dan Skarie
Prosecution: Outagamie County District Attorney’s Office
Jurisdiction: Outagamie County Circuit Court
Blood Alcohol Content (BAC): .17 g/210 L of breath intoximeter test
Field Sobriety Tests: 6/6 clues on HGN – through cross examination, Attorney Skarie established officer wrote clues despite not performing the test at all in parts and incorrectly in other parts.

Officer reported 3/8 clues on W&T – established through cross only 1 could be verified, therefore passed below the 2/8 threshold.

2/4 on the OLS test. However, client was older and had been standing all day. Didn’t scream “drunk”. More technical violations.

Outcome: Case Dismissed!!


Effective Defense Strategy

Attorney Skarie filed a motion to suppress evidence because the police officer lacked probable cause to arrest the defendant.

Challenges to evidence:

The argument presented in this case was that:

1) The client never fully went over the fog line, but rather was on top of it.

The court found for reasonable suspicion that being on the fog line, along with the named caller’s report of reckless driving was enough to stop the vehicle.

2) the law enforcement official lacked probable cause to arrest the driver.

The court found that the officer failed to specifically articulate what led him to believe the client was impaired. This included both the court’s review of the video and the officer’s explanation of his administration and scoring of the SFSTs.

Wisconsin OWI Laws & Statutes – Probable cause to arrest

State v. Lange offers a good summary of what the court is assessing for probable cause:

State v. Lange, 2009 WI 49

  1. ¶ 19 A warrantless arrest is not lawful except when supported by probable cause.[6] Probable cause to arrest for operating while under the influence of an intoxicant refers to that quantum of evidence within the arresting officer’s knowledge at the time of the arrest that would lead a reasonable law enforcement officer to believe that the defendant was operating a motor vehicle while under the influence of an intoxicant.[7] The burden is on the state to show that the officer had probable cause to arrest.[8]
  2. ¶ 20 The question of probable cause must be assessed on a case-by-case basis, looking at the totality of the circumstances.[9] Probable cause is a “flexible, common-sense measure of the plausibility of particular conclusions about human behavior.”[10] When the facts are not disputed, whether probable cause to arrest exists in a given case is a question of law that this court determines independently of the circuit court and court of appeals but benefiting from their analyses.[11] In determining whether there is probable cause, the court applies an objective standard, considering the information available to the officer and the officer’s training and experience.[12]

Was there any key evidence or witness statements that played a significant role?

Video tells all. You cannot rely on what’s in the police report. You must obtain and review the video. After reviewing the video evidence, the officer was unable to justify the assertions regarding impairment and SFSTs in his police report.

The Officers body camera evidence of SFSTs. Having your case on video is one of the most helpful things to defend it. It depends entirely on if the department has dash or bodycam video.

Were there any plea agreements?

  1. The original plea deal offered for the OWI charge was a 6-month license revocation, 1-year with an Ignition Interlock Device (IID) installed in her vehicle, fines, and AODA plus driver safety plan.
  2. Mid-hearing the state offered to amend client’s BAC to .149 from .17 so the client could avoid a 1-year IID requirement. Client declined offer.

✓ Outcome: Evidence suppressed for lack of probable cause

Court’s Ruling:

  1. Reasonable suspicion to make the stop based on going over the fog line.
  2. State did not meet their burden to establish probable cause to arrest.
  3. Motion to suppress granted.
  4. The state dismissed the case after conclusion of the suppression hearing as the Intoximeter result of .17 was excluded from trial by the Judge and the state did not feel it could meet its burden without the test result.

What common hurdles do clients encounter in wisconsin owi cases?

The days of amending the charge to non-OWI violations, or letting someone drive home, or cutting deals in OWI cases are over. If a client wants an alcohol offense to go away it needs to be litigated.

How does your law firm approach and conquer the obstacles presented by wisconsin’s owi regulations?

The only way to achieve these goals is to be constantly learning and sharpening your skills in court. Prosecutors do not give deals to, and Judges do not respect, attorney’s who never file motions, try cases, or zealously advocate for their clients.

Law firm’s services & benefits

  • Constant communication.
  • Knowledge of the law.
  • Knowledge of proclivities of judges and prosecutors
  • Willingness to file motions, try cases, and advocate for the client.
  • Honest, no-nonsense analysis of the case.
  • I actually care about the clients. More than a retainer fee.

Contact Attorney Dan Skarie

Attorney Skarie is renowned in Wisconsin for his expertise in OWI defense. His impressive history of favorable outcomes in such cases is a testament to his profound knowledge of OWI law. Dan is committed to delivering exceptional legal support.

Facing an OWI charge? Don’t gamble with your future.

Contact our exemplary defense lawyers of Nathan J Dineen Attorney At Law in Appleton. Your liberty and good name are priceless; trust an experienced professional to navigate you through these difficult times.

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