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I have a 4th w/in 5 yrs OWI in Wisconsin pending. The case was dismissed without prejudice. How long do I have to wait in limbo?

Racine, WI |

I am a college student who was arrested for a 4th offense OWI( within 5 yrs) making my case a felony. The police obtained a blood sample and subsequently sent it off for further analysis at the Crime Lab. They found out already that there was no alcohol in my system at the time of the arrest. The Crime Lab already has indicated that this is true. Does having illegal substances in your blood make the charges any different (looked upon less severely than alcohol) ? But the prosecutor says he is waiting to get the blood work back. I have been to court a few times already but the prosecutor filed to dismiss the case without prejudice. Am I suppose to think that the case is settled? Do I need to pursue other avenues of 'suppressing' the blood sample?

Does the recent Supreme Court ruling have any bearing on whether or not the blood sample was taken in a lawful and constitutional way? From what I have read, the Supreme Court ruling says that only in exigent circumstances where the dissipation of alcohol or any other restricted controlled substance is the only deciding factor can a police officer obtain a blood sample without first having a signed search warrant authorized by a judge. Is any of this true?

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Attorney answers 5


Restricted controlled substance violation cases can be harder to defend, and are treated just as harshly as cases where the alleged impairment is caused by alcohol. Your case is in all likelihood not settled, but will be re-filed if the drug screen comes back positive for any restricted controlled substance, which can take up to a year after the arrest due to laboratory backlogs. What you need to pursue is the advice of defense counsel who can look at all issues in your case, including but limited to suppression. While you are waiting, if you can't put a hold on the partying, you may also want to consider staying out from behind the wheel of any motor vehicle. Good luck.

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

Michael C. Witt

Michael C. Witt


Incuding but NOT limited to suppression; please excuse the typo.


The case was dismissed without prejudice, meaning that it may be reissued at any time within the six year statute of limitations. If the blood tests return with any detectable amount of a restricted controlled substance (marijuana, cocaine, etc.), or a controlled substance for which you have a prescription but in an amount sufficient to impair your ability to drive safely, the charges will be reissued. You most likely know what the likely result of the blood test will be, and if it will not be good, then you should immediately hire defense counsel.,

This answer is for informational purposes only. By answering this question, no attorney/client relationship is created. Although the legal information is accurate, it may not be appropriate for your situation. The best way to handle any legal problem is to seek the advice of an attorney.


If you have drugs in your system, then when the blood test comes back positive you will be charged with operating a motor vehicle under a controlled substance. You need to hire an attorney experienced in OWI cases to help frame the proper defenses and case themes.

This is not intended as legal advice. It is only provided for educational purposes and cannot be relied upon as legal advice. Further no attorney client relationship is or has been formed by answering this question.


As the other attorneys have indicated, a dismissal without prejudice means that charges can be refiled at any time within the statute of limitations. One thing that is tricky about drug-related OWI offenses is that if the substance in question is a restricted controlled substance, they only need to prove that any amount was in your blood. But if the substance is not a restricted controlled substance, they have to prove that the substance caused you to be prepared. Everyone knows what somewhat impaired by alcohol looks like and acts like, but impairment by a drug other than alcohol can be more complicated for the State to prove.


Like others have said, the prosecutor has up to six years to bring the felony charge of OWI 4th in 5 years. Drugs, unlike alcohol, can be any detectable amount if the drug is a restricted controlled substance like marijuana. Prescriptions typically must be over a certain concentration if you have a prescription. You likely already have a pretty good idea if there are going to be other substances in your blood, and if there are, you likely want to consult an attorney as soon as possible.

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