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3rd DWI,test refusal,What are chances of winning motion trials?

Madison, WI |

Facing 3rd DWI and won the refusal hearing on basis of: Possibility vs. Probability. Motion hearing to dismiss based on lack of probable cause for arrest...What might happen?

Attorney Answers 3


  1. You should be asking your lawyer, although if you won a refusal hearing without one you are doing well.

    Probable cause for arrest is separate from refusal question. You need the video if available.

    Feel free to call my office for a free consultation if you do not already have an attorney.

    --- Experienced DUI/DWI/OWI/Drunk Driving Lawyer in Madison, Wisconsin
    http://addbalance.com/drunk_driving_lawyer.htm

    --- Field sobriety "tests"
    http://addbalance.com/fieldsobrietytests.htm

    Confidential information should not be disclosed in this Internet forum. I am a Wisconsin lawyer. The laws in each jurisdiction can be very different. I cannot give legal advice over the internet nor can I establish an attorney client relationship with you. You should NOT assume or otherwise conclude that there is an attorney -client relationship between any reader and this writer or his firm. These comments are only guideposts. They are not subject to any privilege protections. Indeed, these internet communications are neither privileged nor confidential. Accordingly, those using this form of communication need to be guarded in what they write. Because of the nature of these communications the information is general only and should not be relied upon in any specific case. This internet site is public forum, where the communications are not confidential or privileged. There may very well be merit to your defense or position in this type of situation. However, there are hardly sufficient details for an attorney to provide you with some path to follow. It is imperative that ALL of the facts in a particular situation be examined. No conclusion can be drawn from the communication that you have provided. There are some matters that are just better handled by an attorney familiar with the procedures of the courts in your area. Most, if not all, legal matters should not be handled via internet communication. At best, the responders on this site can give you a few hints and guidance. To deal with a legal problem, nothing is better than to consult with a lawyer who will give you some time and advice. If you cannot afford an attorney, there should be agencies in your area that can provide discounted, or even free, legal services. Experienced Criminal Defense Lawyer in Madison, Dane County, Wisconsin http://addbalance.com Talking to the Police - Advice from Lawyers and Police: http://addbalance.com/police.htm


  2. If you won the refusal hearing on a probable cause argument, you should win a suppression motion in the OWI case, as the burden the prosecutor needs to meet to establish probable cause in a refusal hearing is lower than the bar they need to get over in the OWI case. See the following excerpt from State v. Wille, 185 Wis. 2d 673, 518 N.W.2d 325 (Ct. App. 1994).

    "When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." RESTATEMENT (SECOND) OF JUDGMENTS § 27 (1980). [185 Wis.2d 681] The general rule set forth in the Restatement has exceptions, one of which is:

    The party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action; the burden has shifted to his adversary; or the adversary has a significantly heavier burden than [it] had in the first action.

    "RESTATEMENT (SECOND) OF JUDGMENTS § 28(4) (1980) (emphasis added). Wille is the party against whom preclusion is sought and the State is his "adversary."

    The State's burden of persuasion at a refusal hearing is substantially less than at a suppression hearing. At the refusal hearing, "the state must only present evidence sufficient to establish an officer's probable cause to believe the person was driving or operating a motor vehicle while under the influence of an intoxicant." Nordness, 128 Wis.2d at 35, 381 N.W.2d at 308. The State need only show that the officer's account is plausible, and the court will not weigh the evidence for and against probable cause or determine the credibility of the witnesses. Id. at 36, 381 N.W.2d at 308. Indeed, the court need not even believe the officer's account. It need only be persuaded that the State's account is plausible. Thus, the Nordness court held,

    We view the [refusal] hearing as a determination merely of an officer's probable cause, not as a forum to weigh the state's and the defendant's evidence. Because the implied consent statute limits the [refusal] hearing to a determination of probable cause--as opposed to a determination of probable cause to a reasonable certainty--we do not allow the trial court to weigh the evidence between the [185 Wis.2d 682] parties. The trial court, in terms of the probable cause inquiry, simply must ascertain the plausibility of a police officer's account. See, e.g., Vigil v. State, 76 Wis.2d 133, 144, 250 N.W.2d 378, (1977). [footnote] 5

    Nordness, 128 Wis.2d at 36, 381 N.W.2d at 308.

    Determining probable cause for a warrantless arrest in the context of a suppression motion is another matter. Plausibility is not enough. The trial court takes evidence in support of suppression and against it, and chooses between conflicting versions of the facts. It necessarily determines the credibility of the officers and other witnesses. State v. Pires, 55 Wis.2d 597, 602-03, 201 N.W.2d 153, 156 (1972). The court then finds the historical facts and determines whether probable cause exists on the basis of those facts.

    Thus, the State's burden of persuasion at a suppression hearing is significantly greater than its burden of persuasion at a refusal hearing under § 343.305(9)(c), STATS. Consequently, Wille is not precluded--collaterally estopped--from relitigating the probable cause issue at the suppression hearing."

    Your situation sounds like the exact reverse, and you should be able to argue that the State is precluded from relitigating the question. Given the consequences you are facing, a lawyer would be very helpful in properly presenting your argument to the court.

    This answer is provided for general information only. No legal advice can be given without a consult as to the specifics of the case.

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