Criminal Defense Articles

by Terence R. Collins, Attorney, Johns, Flaherty & Collins

When the high temperatures of summer hit, there’s nothing like a day on the water. Whether you’re skiing, fishing or just cruising, the lakes and rivers of the Coulee Region provide a wonderful escape.

Unfortunately, many boaters begin their journeys ill-prepared — in their knowledge of local boating and water safety laws, if not in terms of equipment too.

Most local waters are governed by local, state and federal laws. The rules among various municipalities and government agencies don’t differ dramatically. Each will have rules against operating a boat while intoxicated. Each will have rules about speed, wake zones and registration. The rules may not be exactly the same, but they will be substantially the same.

Rules locally are enforced by the La Crosse County Sheriff’s office, along with the Wisconsin Department of Natural Resources (DNR) and the U.S. Fish & Wildlife Service.

Boating violations carry penalties of anywhere from $20 up to $1,000 each. Common local violations include not having enough life jackets or a throwable life-saving device on board and overloading a boat. These violations can cost up to $50 for the first offense and $100 for a second offense. You may also be required to attend a boater’s safety course — which isn’t a bad idea for anyone hitting the water.

Intoxicated boating is another common local offense, and the rules and penalties are exactly the same as driving a car while intoxicated. Fines for first offenses run $150 to $300, and second offenses (occurring within five years of the first offense) run $300 to $1,000 and five to six months in prison.

In addition, Wisconsin law carries a number of other requirements concerning watercraft registration, mufflers and noise levels, waste discharge, boater age and horsepower restrictions, reckless and negligent operation, speed and accident reporting.

Ignorance is never a reliable defense, so be sure you know and understand the rules before launching your boat. Also, while boater safety courses are required for any boaters between 16 and 18, they’re recommended for everyone. Additionally, be sure to read the Wisconsin boating pamphlets available throughout the area or Boat Ed’s online boating law handbook developed in conjunction with the DNR (www.boat-ed.com/wi/handbook).

Keep in mind that boating laws make up only half of the safety equation. The other half comes from experience. Just as you must take time to learn the rules of law, you need to take time to learn the rules of nature. Many tragedies on the water could be avoided if people would take time to get to know the river with more seasoned boaters before heading out on their own.

People often do not understand the power and the danger of water, and particularly the Mississippi River. It is a wonderful, gorgeous resource that makes our area special. Understand it, use it, enjoy it and respect it.

Many parents today remember a time when the 10 p.m. news began with a question for viewers: “It’s 10 p.m. Do you know where your child is?” 

It’s a good question when you consider what often happens at night: vandalism, underage drinking, drive-by shootings. That’s why more than 500 U.S. cities, including La Crosse, Wis., have curfew laws on the books.

Curfew laws are ostensibly designed to prevent crime, though there’s no definitive research to demonstrate that they do so. Many believe their real value is in giving law enforcement officers the ability to stop and question teens about what they may be doing in the middle of the night. If teens don’t have a legitimate reason for being out and about, officers then can take some action to get kids home.

In any case, it is a law currently on the local books, and if you have children and want to avoid penalties, you need to understand it. You’ll find slight differences among municipalities in the region; here is how it works in La Crosse.

For ages 15 to 17, curfew begins at 11 p.m. Sunday through Thursday. On Friday and Saturday, it’s 12:30 a.m. During summer months (defined as June 1 through August 31), it’s 12:30 a.m. all week.

For ages 12 to 14, curfew begins at 10 p.m. Sunday through Thursday. On Friday and Saturday, it’s 11 p.m. During the summer, curfew begins at 11 p.m. all week.

For ages 11 and under, curfew is at 10 p.m. at all times.

Exceptions are made in certain situations, including when kids are:

• running an emergency errand for their parents;
• working or traveling home from work;
• are returning home by the most direct route from another private home;
• going to or from school activities;
• are with a parent, guardian or other adult having legal custody.

If your child is found violating curfew laws, police will write a citation carrying a penalty of $101. To contest a citation or the fine in La Crosse, families go before the municipal court. The judge there has some discretion and may order community service in lieu of the fee.

In any case, when you consider the trouble that kids can encounter on the streets at night, whether through their own making or as innocent victims, adhering to curfew laws can give your child an added measure of safety—and you more peace of mind.

I teach grade school and suspect a student’s mother is being abused by her live-in boyfriend. My suspicions became even stronger when she showed up for a parent-teacher conference with a black eye and broken wrist. What kinds of abuse should I be reporting and to whom? What am I obligated to report?

The simple answer is that you have no legal obligation to report abuse involving an adult. However, anyone who suspects abuse going on may report these concerns to authorities.

"You can always report if you think someone is being hurt, but you are not required to report abuse of an adult," said attorney Peder Arneson.

The law is different when it comes to children, however. "Any time you have a concern that a child is subject to abuse or neglect or has been threatened with abuse or neglect, it is your responsibility to call social services," Arneson said. "The Children’s Code portion of our Wisconsin statutes is very clear."

Under the code, state statutes specifically require educators to report neglect or abuse. Others with that responsibility include medical professionals (with some limited exceptions), mental health counselors, alcohol and other drug abuse professionals, police, law enforcement and first responders. With clergy frequently serving as counselors, it can be argued that they fall under this law although they are not specifically named.

The law also specifically states people who report abuse cannot be fired for contacting authorities with their suspicions.

by Peder G. Arneson, Attorney, Johns, Flaherty & Collins, SC

It is the season to be merry, but statistics indicate that getting too merry can bring devastating consequences.

Data from the National Highway Traffic Safety Administration indicate that traffic fatalities spike between November and December each year, with more than a third of them involving impaired driving. In fact, daily crash fatalities involving impaired drivers jump by 50 percent over the New Year’s period.

Oftentimes, drivers mistakenly assume they’re OK to drive because they’ve fallen for one of four common myths.

• I’m OK to drive the next morning. Though the amount of alcohol in your blood peaks within 30 to 45 minutes after consuming a drink, your body requires several hours for even the smallest amount to metabolize completely. If you’ve had enough to reach the legal blood alcohol content (BAC) limit of .08, you’ll likely need up to 5 1/2 hours to fully metabolize the alcohol in your blood. Generally, alcohol metabolizes at a rate of .015 per hour or a drink an hour. That means that if you’re drinking until 2 a.m., depending on your BAC, you may still be impaired or over the limit if you get up to drive to work the next morning.
• I can’t be arrested if I’m not driving. There’s a difference between “driving” while under the influenced (DWI) and “operating” while influenced (OWI). DWIs apply if you are controlling the speed and direction of an automobile while OWIs apply if you are exercising control over “the instrumentalities that control the speed and direction of the vehicle” such as turning the key in the ignition, having your foot on the throttle or placing your hands on the steering wheel. Both are elements of the charge of “drunk driving”. If you’ve been drinking, it’s best to simply give your keys to someone sober.
• I’m OK to drive as long as my blood alcohol content is below the legal limit. A standard drink is defined as one 12-ounce beer, one five-ounce glass of wine or 1.5 ounces of 80-proof liquor. But there is no standard for how alcohol consumption affects individual drivers if the alcohol is consumed in conjunction with illegal drugs or prescription medication. Many prescription medications taken in legal doses could also cause impaired driving severe enough to warrant arrest. In those cases, BAC is not even a factor in DWI or OWI charges. It is a violation of the law to drive or operate a motor vehicle with any detectible amount of illegal drugs or any prescribed medication exceeding therapeutic levels.
• If I eat a meal or have a cup of coffee, I’ll be fine. Certain types of food have been shown to affect the rate at which alcohol metabolizes in the body. Drinking with a meal containing a combination of protein, fat and carbohydrate can slow absorption by up to three times that of drinking on an empty stomach.Most alcohol is absorbed in the small intestines not the stomach, so what you eat has less effect on alcohol absorption, thus intoxication, than believed. When you consider that alcohol leaves most everyone’s bodies at an approximate rate of .015 percent of BAC per hour, sobering up can take hours. Time — not food, coffee, vast amounts of water or exercise — is the only thing that can sober you sufficiently to drive without impairment.

If you’re going to partake of holiday spirits this season, your best bet for avoiding injuring yourself or someone else and legal hassles is to use good judgment by knowing the rules, how much you can consume and not driving or operating when impaired. If you must, designate a responsible driver. There’s nothing mythical about that; it’s a fact. Plan your holiday celebration smartly so you can enjoy this wonderful time of the year safely and legally.

You're driving home from the company picnic where you have had a few beers. The police pull you over for a burned out headlight and, after talking to you, want you to take a sobriety test. You think you're probably okay but should you do it?

According to attorney Peder Arneson, the simple answer is "yes," assuming you have not been arrested in the past for drunken driving. If you are shown to be intoxicated, you'll pay a fine and penalties of between $700 and $1,000 and will lose your license for six to nine months. A second, third or fourth offense is a traffic crime, a misdemeanor that will put you in jail. A fifth conviction is a felony.

An officer must have probable cause that you were driving while impaired as evidenced by your driving behavior. Stopping you for a burned out headlight and then smelling alcohol is sufficient to request a field sobriety test and/or preliminary breath test. Legally, you don't have to take those tests, but refusing is regarded as "consciousness of guilt." That gives the officer probable cause to bring you to the station, where you will be informed that by driving on a public road you have, by statute, given "implied consent" to take a chemical test for alcohol.

You then will be asked to blow into an Intoximeter, a very accurate machine that measures your intoxication level. In Wisconsin, if you fail this test, that is register an alcohol level of .10 or greater (.10 grams per 210 liters of blood in your bloodstream), it is considered sufficient to prosecute you for drunken driving. Wisconsin law does not allow for contacting an attorney prior to taking the test.

While there may be rare instances when it may be better to refuse to take it, in most instances for a first offense, take the test.

For more information on traffic law in Wisconsin, contact Peder Arneson at 608-784-5678

When you see the flashing police lights behind you and you've been drinking, what should you do?

Peder Arneson, a longtime criminal defense lawyer, said it is smart to comply with field sobriety tests. You do not have the right to a lawyer during the field sobriety tests, nor do you have that right when obligated to provide a sample of breath, blood or urine.

"If you don't submit to the chemical test, they can forcibly take blood from you, you can have higher penalties, and you can be charged with violating Wisconsin's implied consent law," Arneson said. "Refusal to submit to a field test may be considered consciousness of guilt."

He also advises:

• Be respectful to the officer and the process.
• Do not volunteer additional information.
• Seek legal advice, whether you are innocent or guilty, to help navigate the legal system.

For more information on criminal law, contact Peder Arneson at 608-784-5678.

Wisconsin’s broad-sweeping reform of laws governing operating a motor vehicle while intoxicated (OWI) is a little less broad in its sweep when compared with other states and countries.

“Wisconsin is probably the last state in the country where operating while intoxicated is not a crime across the board,” said Johns, Flaherty & Collins attorney Emily Hynek.

Instead, a first offense is considered a forfeiture, similar to a civil violation – unless a child younger than 16 was in the car at the time of the arrest or someone suffered an injury. Penalties become more severe with repeated OWI arrests, but are still often less than most other states.

This revised law, which goes into effect July 1st, is the first significant change since 1981.

The law:

• Mandates ignition interlock devices for all second and subsequent arrests for OWI. Offenders pay for installation, maintenance, and a $50 surcharge, and cannot get an occupational license without proof of payment and installation.
• Makes a fourth offense OWI a felony if it occurs within five years of a prior OWI-related offense.
• Creates longer minimum terms of confinement for multiple offenders. The minimum term of confinement is not the sentence; it is the time that must be served in an institution before the rest of the sentence, which may include probation or electronic monitoring, can be completed. The confinement for seventh through ninth offenses is three years and four years for the tenth, compared with previous terms of 48 consecutive hours for all.
• Allows any county to develop an alternative sentencing program that reduces imprisonment by successfully completing probation with alcohol and drug treatment.
• Increases criminal court processing fees and reinstatement of license fees.
• Bans pre-sentence releases and stays of execution for third and subsequent OWIs until after the minimum confinement period is served.
• License revocation begins on the date of the OWI and is extended by the number of days of jail or prison sentence.
• Makes a violation of absolute sobriety a criminal misdemeanor if there was a minor in the vehicle.

These changes are “baby steps,” Hynek said. “Wisconsin still will not have the toughest law by a long shot.”

Are juveniles being tried as adults?

In some circumstances juveniles are being tried in adult court, according to Johns, Flaherty & Collins attorney Edward Rue. Wisconsin defines a juvenile as a person under seventeen years of age for the purposes of the criminal law. Generally, the juvenile court has exclusive jurisdiction over a juvenile 10 or older who is alleged to be delinquent. However, the juvenile court can waive its exclusive jurisdiction if the juvenile is 15 or over, or 14 or over if charged with certain felony or drug offenses. Also, for certain serious violent crimes, such as intentional homicide, the adult court will have original jurisdiction over a juvenile.

For more information about juveniles in adult court, contact Johns, Flaherty & Collins at 608-784-5678.

Our neighbors' young children were running through our house and knocked over our $7,000 harp. We've priced repairs and it's going to cost $2,400 to return the harp to its original condition. Our neighbors are refusing to pay, saying it was our fault for leaving the harp in a precarious position. Do we have any legal recourse?

It's always frustrating when parents do not control their children, but the answer to whether the parents are financially responsible is not a simple one, according to attorney Cheryl Gill.

Wisconsin's parental liability for acts of minor children makes parents responsible for up to $5,000 in damages if there was willful, malicious or wanton behavior.

"A child who just ran through the house, who hasn't been warned and happens to slip and accidentally knock over the harp probably would not be considered willful, malicious or wanton," she said.

It would be a different story for a child who walked up to the harp and intentionally knocked it over. Also different would be a situation in which a child was repeatedly warned to be careful of the harp, paid no attention and the parents did nothing to stop him or her. Still, Gill said, "It's a hard line to define."

Incidentally, under common law, a parent could be liable if a minor child physically harms someone else. There is no limit on damages if the parents should have controlled the child's behavior but did not.

While parents ideally would have taken responsibility for their child's actions, many do not today. Therefore, you may need to go to Small Claims Court (the court for claims under $5,000) to force the parents to pay for the damaged harp, In Small Claims Court, claimants are encouraged to participate in mediation to resolve the claim rather than engaging in trial.

"In mediation neither side gets exactly what they want," Gill said. "But by compromising, both sides may save some money and may maintain their prior relationship."

For more information about parental liability laws, contact Cheryl Gill at 608-784-5678.

by Peder G. Arneson, Attorney, Johns, Flaherty & Collins

Traffic tickets are on the rise in Wisconsin. Recent data from the Federal Motor Carrier Safety Administration show violations nearly doubled from 2003 to 2004.

It's easy to see why with ever-increasing distractions in life and on the road today. You forget to update your registration, miss a stop sign or a speed limit sign - all innocent mistakes.

But such mistakes can be costly. Fines for speeding begin at $30 for one to ten miles over the limit. That's not too bad, but costs and fees on that $30 add up to more than $130, creating a total $160-plus "forfeiture" in Circuit Court. The forfeiture is somewhat less in area municipal courts.

In addition, each violation has demerit points assessed against the driver's license. They range from two, typically reserved for equipment violation, to the maximum six. Drunken driving, reckless driving and endangering safety, for example, are assessed six points. The faster the speed, the more points.

Points stay on your record for 12 months. Accrue 12 or more points in one year, and your license will be suspended for at least two months.

The key to avoiding these fines and points is driving attentively (and only when sober) and keeping your car in good working order.

Should you be issued a citation, despite your best efforts, it's good to understand your options.

If you agree you are guilty, you can mail in a check before your court date and forgo attending. You'll be found guilty by default.

If you are not guilty and believe you can make a convincing presentation to the judge, attend your initial appearance. Your name will be given to the prosecuting attorney for a pretrial conference. They will review the file, allow you to state your case and determine whether to set a date for trial or dismiss it.

The trial is in front of and decided by a judge. The prosecuting attorney will typically call the police officer as a witness. You are allowed to cross-examine the officer or other witnesses called. You are then allowed to testify and call your own witnesses if appropriate.

It's important to understand that most traffic violations are strict liability offenses, meaning your intentions are irrelevant. If you are ticketed for driving 35 in a 25 zone, it doesn't matter that you thought the speed limit was 35. The fact that you were speeding is all that matters.

If you're guilty and can't afford the forfeiture, contact the court. They will work out a payment plan with you.

If you cannot afford the additional points, you can attend point reduction school at Western Technical College. Upon successful completion, three demerit points are subtracted from your record. You are allowed this once every five years.

The rules of evidence and decorum apply in a traffic trial, but the courts recognize this is usually the only contact a citizen will have with the justice system and strive to provide a fair process to allow you the opportunity to defend yourself.

Remember that in every step of this process, respect is important. Respect for the law, the officer, the court and the process. The judicial system makes every effort to treat you, the citizen, with respect, and it will only further your case by responding appropriately.

Reprinted with permission from Holmen Courier and Onalaska Community Life, June 30, 2006.