Im facing a 5th OWI. Will it be charged as a 4th since my prior was charged as a 3rd instead because of a collateral attack?

Asked over 1 year ago - Oshkosh, WI

Im facing a 5th OWI. Will it be charged as a 4th since my prior was charged as a 3rd instead of a 4th because of a DUI collateral attack? I had an attorney on my 4th that did a collateral attack. I was charged for a 3rd instead. The attack failed but didn't cause the DA never asked me any questions while i was on the stand. The judge said it was up to the state to prove otherwise and didn't so the attack was granted, allowed or something of that nature so I was charged for a 3rd instead of a 4th. There was no accident or injury involved in any of my priors and my current violation. My record shows i have a 1st, 2nd, and two 3rd offense OWI charges.

Attorney answers (6)

  1. George A. Limbeck

    Contributor Level 9


    Lawyers agree

    Answered . If the court denied the collateral attack motion then your current charge would be a 5th offense. If he granted the collateral attack, it means a constitutional right was violated that vacated the prior conviction and your current charge would be a 4th offense. If you don't have an attorney, get one immediately. If you do have an attorney, he/she needs to obtain a copy of the transcript of the collateral attack hearing and a copy of any order signed by the judge presiding over that hearing. Both documents are easy to obtain but there will be a cost associated with both. Good Luck.

  2. Chadwick J. Kaehne


    Contributor Level 8


    Lawyers agree

    Answered . All of the above attorneys are right and you need to seek qualified counsel immediately. I dont know if the arrest happened in Winnebago county, but if it did, it is my experience that Winnebago courts have handled these types of cases inconsistently. I would not delay in this matter.

  3. Tajara Dommershausen


    Contributor Level 18


    Lawyers agree

    Answered . depends on how the former order was written and if the new one is in the same county as the last. You may need to relitigate the issue again. Get an attorny IMMEDIATELY!!

    In accordance with the Avvo community guidelines, this communication does not constitute "legal advice", nor does... more
  4. Karyn T. Missimer

    Contributor Level 18


    Lawyers agree

    Answered . Whether the prior collateral attack applies in this case depends on a number of factors. First, was the prior collateral attack successful? If the answer is yes, the next question is whether the prior collateral attack was fully litigated. If the answer is no (the collateral attack was not successful), you need to bring a collateral attack in the current case (assuming the court allows you to do so, and does not say you are precluded from doing so.)

    There are many factors that go into determining whether a collateral attack was fully litigated. If it was fully litigated, then the prior collateral attack applies in your current case. If it was not fully litigated, then you get to do the collateral attack again and see what happens.

    If you won the previous collateral attack, you need to bring a motion for issue preclusion - arguing the prior collateral attack applies in the current case. Your motion should ask for another collateral attack in the event the court does not find in favor of issue preclusion. I have won similar motions in the past.

    If you do not have a local, experienced DUI attorney on your side, get one NOW.

    Good luck!

  5. Charles K. Kenyon Jr.

    Contributor Level 19


    Lawyers agree

    Answered . You need a good owi/dui lawyer, now. There are a number in your area. That there was an order that a prior did not count in a previous case matters. It does not matter whether it was in the same county or not. It is likely that this one should be properly charged as a non-felony fourth offense.

    Often people think that because it isn’t a murder case, a drunk driving case is simple. Nothing could be further from the truth. These cases can be among the most complex a criminal defense lawyer handles. The government is willing to spend an incredible amount of money to convict you though. They will have expert witnesses available for consultation and trial.

    That you have been charged or that some contraption says your alcohol level was at a certain level does not mean that you are guilty. It certainly does not mean that you can be proven guilty using competent, valid evidence.

    Field sobriety “tests” are designed to give police a reason to arrest. You cannot “pass” them. The police will admit that almost a third of healthy young adults who take these tests without any alcohol will be judged to be “under the influence” – and that assumes they are properly administered!

    After even a first drunk driving conviction, you may face employment discrimination. You will certainly be charged higher for insurance. Having such a conviction will also make you a target for drunk driving arrest in future interactions with police. You will automatically become a suspect.

    You will want a lawyer who is familiar with field sobriety “tests,” perhaps one who is certified to administer these tests. You will want a lawyer familiar with the weaknesses of the contraptions that are used to report alcohol or drug levels. You want an experienced trial lawyer, used to cross-examining police officers. Police officers are practiced, experienced witnesses.

    That is, you want an experienced drunk driving defense lawyer, whether you call the offense DUI, OWI, DWI, OUI, or drugged driving.

    If any answer on AVVO helps you, mine or someone else’s, please mark it as "helpful" or "best answer" to help AVVO know which answers to show others.
    Thank you.

    --- Experienced DUI/DWI/OWI/Drunk Driving Lawyer in Madison, Wisconsin

    --- Facebook Page Madison (Dane County) Wisconsin Drunk Driving / OWI / DWI / DUI Lawyer

    --- Field sobriety "tests" – Madison (Dane County) Wisconsin DUI / DWI / OWI / Drunk Driving lawyer

    --- Drugged Driving/DUI/DWI/Drunk Driving with Prescription Drugs – Madison (Dane County) Wisconsin

    --- Which Offenses Count as Priors in Wisconsin? - Madison Dane County Wisconsin DUI OWI Drunk Driving Lawyer answers

    --- Ten Days to Save Your License - Administrative Suspension and Refusals in Madison (Dane County) Wisconsin


    Confidential information should not be disclosed in this Internet forum.

    I am an experienced Wisconsin drunk driving (DUI/OWI/DWI) defense lawyer practicing in Madison (Dane County) Wisconsin. 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.

    If something I say disagrees with what your own lawyer is telling you, you should rely on your lawyer who is familiar with you, your entire case, the local courts and practices.

    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.

    This AVVO Answer is provided for general educational purposes only.

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  6. Frank Mascagni III

    Contributor Level 20


    Lawyers agree

    Answered . You need to hire the very best criminal defense attorney in your area to defend you and these DUI convictions and collateral attack! These are the type of prosecutions that can have very harsh consequences affecting your life: loss of freedom, fines, court costs, loss of drivers license, state alcohol classes, probation, cancelled auto insurance and raised auto insurance premiums for years, affect future employment, terrible criminal background check, etc. I don't practice in WI, but in my state, KY, the penalty would be enhanced as a subsequent offender to a felony charge with the 4th offense within 5 years. I'll defer to the avvo lawyers who practice in WI.

    I am trying to give you a general answer to your question. We do not have an attorney-client relationship by this... more

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