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Robert S. Duxstad
Daniel P. Bestul
Lance A. McNaughton

First Ten Days Critical in Drunk Driving Cases

Posted: 3.24.2014  |  Author: 

A recent Wisconsin Supreme Court decision reinforces the importance of meeting critical deadlines when charged with operating a motor vehicle under the influence (OWI). In the matter of the refusal of Brandon Bentdahl, 351 Wis. 2d 739 (2013), the defendant was found not guilty of OWI, and then requested the trial court to find that his refusal to submit chemical testing to determine his blood alcohol level was reasonable. The defendant, however, had not requested a hearing on the reasonableness of his refusal within ten days of his arrest as required by the Wisconsin Statutes. The Supreme Court ruled that the trial court did not have the discretion to dismiss the refusal charge when a hearing was not timely requested; and therefore the applicable penalties – including a one year revocation of the defendant’s driving privileges – would need to be imposed. Presumably, had the defendant timely requested a refusal hearing, he may have at least had the opportunity to avoid the one year revocation of his license.


There are other important things which must be done within 10 days of one’s arrest for OWI. A defendant only has ten days to request an administrative hearing regarding whether or not the defendant’s operating privileges will be suspended for six months if the chemical test of the defendant’s alcohol level is over the legal limit. If the administrative hearing is not timely requested, the defendant will be without legal recourse to appeal the suspension and ask the court for a stay of the suspension during the court proceedings on the underlying OWI charge.


In addition, a defendant charged with OWI must file a motion within 10 days after the alleged violation in order to be allowed to inspect and test any devices, including the Intoxilyzer, used to determine whether a violation had occurred.


Another important deadline is the right to substitute a judge which is lost after the initial court appearance. Lastly, certain motions, including a motion to challenge an arrest or suppress evidence, must be filed within 10 days of the initial appearance.


The ability to properly defend someone charged with OWI can be greatly affected if any of the above deadlines are missed. Therefore, it is critical that you seek legal advice from an attorney experienced in handling OWI cases immediately, and not wait until your first court appearance.


Robert S. Duxstad practices criminal and traffic law, including drunk driving cases, in both Green and Lafayette Counties in Wisconsin. He can be reached by e-mail at duxstad@duxstadlaw.com.


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