Friday, December 21, 2012

December 4, 2012: Jury Finds Client Not Guilty in OWI-1st Case (with .20 Breath Test Result)

In Wisconsin, there are certain counties that are notorious for taking a very hard line approach to drunk driving cases. Some of these counties even have a strict "no plea bargain " policy, meaning they will not reduce a drunk driving charge under almost any circumstance. You either plead guilty as charged or take the case to trial. Ozaukee County would certainly fall into this category. Our client, JEG, had the misfortune of being arrested for her first offense in this tough county. From day one, Dennis Melowski knew JEG's case was destined for trial and he prepared it accordingly. And he definitely had his work cut out for him. JEG was called in by another driver who claimed she repeatedly crossed the centerline while he was behind her. This call prompted an Ozaukee County sheriff's deputy to follow JEG for 3 miles, making similar observations. When JEG was stopped, the deputy claimed he smelled intoxicants and asked her to get out of her car. On the side of a busy highway, she was subjected to 3 different field sobriety tests, all of which she supposedly failed. She was arrested and taken to the Ozaukee County sheriff's department for a breath test, the result of which was .20, two and a half times the legal limit. With all this evidence, the case against JEG initially looked very strong and Ozaukee County wasn't interested in giving her any breaks.

But as is typically the case, there are two sides to every story. As Dennis dug deeper and deeper into the case, he realized it wasn't nearly as strong as it first appeared. It started with JEG's insistence that she had only 4 drinks over a several hour period of time, an amount that couldn't possibly yield a .20 breath test result. For the breath test to be right, JEG would have needed to drink more than 3 times the amount she was so sure she had. The circumstances surrounding her drinking simply did not allow JEG to have had that much to drink. In fact, she had never had that much to drink at one time in her entire life. Something had to be wrong with the breath test result. And there was. Through his investigation, Dennis was able to prove that  "residual mouth alcohol" contaminated JEG's first blow into the machine. When residual mouth alcohol is present, the officer is required to wait 20 minutes before attempting another breath test, allowing time for the residual alcohol to dissipate. The officer's own training manual is explicitly clear on this point. But the officer never followed this important protocol. Alarmingly, he didn't wait the required 20 minutes because he "didn't think it was a big deal." The Ozaukee County prosecutor even called an expert witness at the trial to try to back up this absurd claim. But the problems with the case against JEG didn't end with the breath test. As it turns out, the other driver who reported JEG portrayed her driving much differently at trial than how it was originally portrayed in the police report. In fact, by the time Dennis finished cross-examining this witness, it was clear there were very few "problems" with JEG's driving at all, aside from things that you would see almost any driver do if you followed them long enough. The officer who arrested JEG didn't fare much better when confronted on the stand by Dennis. He admitted that none of his observations of JEG had been recorded on his fully functioning squad video camera because "he pushed the wrong button." By this point in the trial there was a distinct theme developing: Dennis kept pointing out mistake after mistake and the County kept offering flimsy excuse after flimsy excuse. In the end, though, the jury saw right through this sad attempt to salvage an obviously broken case. And they sent their message to the County loud and clear: JEG was Not Guilty on all charges. She was completely exonerated. JEG was overcome with emotion and relief when the jury announced their verdict. After nearly two years of trying to clear her good name, justice had finally been delivered. It couldn't have happened to a more deserving person.  

Wednesday, December 19, 2012

December 2, 2012: Complete Dismissal of OWI-1st/Refusal of Chemical Test Case (with .12 Blood Test Result)

At 63 years of age with a spotless driving record, a drunk driving arrest was the last thing MDH ever thought would happen to him. It was certainly the furthest thing on his mind when he came up to Wisconsin for a day of boating on Lake Michigan. After all, this was something MDH had done countless times before without incident. But as he made his way back to his Dad's place to spend the evening after his day on the lake, a police officer noticed that one of MDH's headlights was burnt out and he was pulled over. After the officer smelled alcohol on MDH's breath, this routine traffic stop soon turned into a full-blown drunk driving investigation. MDH was put through a battery of field sobriety tests and arrested on the spot. He was taken to the local police department for a breath test, which he allegedly refused. "Why should I consent?," he thought. "I shouldn't even be here." The police, however, wouldn't take "no" for an answer. They forced MDH into a squad car and drove him to the nearest hospital for a blood draw against his will. Shockingly, such a procedure is considered lawful in Wisconsin, even for a 63-year-old first-time offender. When they got to the hospital the police made it very clear to MDH: submit to the blood test or we will tie you down and take it from you anyway. Terrified at the presence of what was now several officers, MDH reluctantly stuck out his arm and allowed his blood to be taken. The result was hard for MDH to fathom: .120, one and a half times more than the legal limit of .08. Suddenly, MDH's world seemed to be crashing in on him. As a result of a minor equipment defect of which he wasn't even aware, he was now facing charges of OWI-1st, PAC-1st and Unlawful Refusal of Chemical test, based on his refusal of the breath test at the police department. Very serious charges, especially for someone who has been a law-abiding citizen his entire life. None of this sat very well with MDH. He was horrified at how he had been treated by the police and did not believe for one minute that he was drunk behind the wheel. He knew how much he had to drink that day and knew darn well it wouldn't add up to a .12 alcohol level. Something just wasn't right. MDH was determined to fight these charges, on principle alone.

MDH came to see Dennis Melowski after being referred by a local business owner. When Dennis heard him tell his side of the story, he knew MDH was right to be upset. There were many things the police did improperly and even more that just just didn't add up. Through his investigation, Dennis learned the police had followed MDH for a considerable time before stopping him for the headlight violation. During that whole time (captured on video) there wasn't one thing wrong with MDH's driving. He was going precisely the speed limit, stopped at every stop sign, signaled every turn, and never once deviated from his lane. And although the cops insisted that his speech was slurred, it sounded clear as a bell on the video. And the inconsistencies didn't end there. The cops also claimed that MDH "stumbled" when he exited his vehicle, a fact that was flatly contradicted by the video evidence. Even more troubling was the fact that the cops deliberately moved MDH out of camera range to perform his sobriety tests, thereby making it impossible for him to contradict the officers' version of how he did on them. To top it all off, despite repeatedly telling the cops that he had recently undergone a hip replacement, they made MDH perform the tests anyway, a nearly impossible task for someone still recovering from such a procedure. Sound fair? Dennis didn't think so either, so he filed a motion to dismiss the charges. A hearing was held in front of the judge assigned to the case and Dennis took the officers to task about all of the problems with the case. They had no explanation. At the close of the hearing, the judge had heard enough. It was as plain to him as it was to Dennis that MDH should never have been arrested in the first place. All charges were dismissed. MDH walked out of the courthouse completely exonerated. And he still has a spotless record. Sometimes there is no better reason to fight a case than principle.

Tuesday, December 18, 2012

November 29, 2012: OWI-1st (with .12 Blood Test Result) Reduced to Minor Speeding Ticket

For the last 7 years, KJB has enjoyed a great job with a large heating and cooling company as a commercial installer. The job requires KJB to drive a company van and travel extensively throughout Wisconsin and the adjoining states. The job pays well and has great benefits, but it also requires KJB to possess fully valid driving privileges at all times. The mere hint of a drunk driving conviction would result in KJB's immediate termination, despite his value to the company. This is because the company's insurance carrier forbids access to company vehicles or equipment for anyone with a DUI charge on the record. In this economy, no one can afford to be jobless. It's just too hard to find good work. So when KJB was stopped for speeding, failed the field sobriety tests and produced a .12 on his blood test, he was highly motivated to do whatever he could to avoid a drunk driving conviction--and save his job. Fortunately, a friend of KJB's was a former client of Dennis Melowski and urged KJB to give Dennis a call. KJB's friend assured him that if anyone could help, it would be Dennis. KJB took his friend's advice and hired Dennis. Almost immediately, Dennis laid the groundwork for the successful defense of KJB's case. Through meticulous questioning of the arresting officer at KJB's administrative suspension hearing, Dennis exposed some significant deficiencies in the officer's investigation of KJB. From procedures that weren't followed properly to a laundry list of things the officer would have expected to see but did not, Dennis severely undercut the strength of the officer's case against KJB. These holes in the case were eventually brought to the attention of the prosecutor in the form of legal challenges Dennis filed and in persistent negotiations with the prosecutor. Ultimately, just days before the second round of motion hearings in the case, the prosecutor realized that the prospect of a drunk driving conviction was in grave doubt. An incredible deal was reached. The drunk driving charges were dropped. In exchange, KJB agreed to a no contest plea to the most minor speeding infraction (1-10mph over the limit). He paid a fine of $175.30, but otherwise suffered no consequences. He never lost his license for even a single day and avoided the awful stigma of being a convicted drunk driver. And he still has his job.

Monday, December 17, 2012

November 28, 2012: OWI-1st (with .10 Breath Test Result) Reduced to Driving Around Railroad Crossing Gate and Impeding Traffic by Slow Speed

As an over-the-road truck driver, our client, XJM, was well aware of the devastating consequences a drunk driving conviction can have on commercial drivers. So when XJM was stopped for failing to stop at a stop sign after having a few beers with a friend, he was scared. Although he didn't feel impaired, he had heard plenty of horror stories of drivers who never worked again after similar nights out. XJM's fear of losing his career went from bad to worse after he failed the roadside sobriety tests (on video) and registered a .10 breath test result at the police station following his arrest. XJM knew he was going to have to hire the best attorney he could find if he wanted any hope of saving his career. He went to see an attorney in Milwaukee who was referred to XJM by a close friend. Although this attorney has a very good reputation of his own, he was not optimistic that he could help XJM, given the substantial amount of unfavorable evidence against him. XJM was discouraged, but he asked this attorney one last question before he left his office: "If you or a loved one got charged with drunk driving, who would you hire?" Without hesitating, the attorney replied, "That's easy, Dennis Melowski." The very next day, XJM called Dennis. Seven months later, after some very creative negotiating with the prosecutor, the drunk driving charges against XJM were dropped. In exchange, XJM agreed to plead no contest to two non-alcohol-related offenses: Driving Around Railroad Crossing Gate and Impeding Traffic by Slow Speed,. Aside from paying fines, XJM suffered no other consequences from this incident and never lost his license for even a single day. His commercial privileges were completely spared and there is no trace of a drunk driving arrest on XJM's driving record. His career as a commercial truck driver was saved. He couldn't be happier.

Wednesday, December 5, 2012

November 20, 2012: OWI-Homicide Charges Completely Dismissed

In the realm of drunk driving charges, there is no offense more serious than homicide by intoxicated use of a motor vehicle. With potential penalties of 25 years imprisonment, 5-year license revocation and a fine of $100,000.00, the stakes don't get any higher. Even worse, since these cases can involve significant media attention, prosecutors and judges view them as opportunities to send messages about the risks of drinking and driving, often imposing very harsh sentences as a result. This is on top of the already enormous, life-long emotional consequences that come with the brutal realization that you have taken another person's life. It was this tragic circumstance that our client, CLF, found himself in when he crashed his motorcycle, causing the death of his passenger in the process. Sadly, this tragedy was compounded by the fact that the passenger was also CLF's fiancee'.

When the police came to the scene of the accident that fateful night, they asked CLF if he had been drinking. With each question, it soon became clear the police were investigating this case as a possible drunk driving homicide. As part of this investigation, blood was drawn from CLF and was sent to to the State lab in Madison for testing. The result was an alcohol level of .118, considerably higher than the legal limit of .08. Needless to say, CLF was terrified at the prospect of a lengthy prison sentence. He quickly hired a lawyer to represent him. In preparing its case, the District Attorney's office took the next 8 months to formally charge CLF while they "considered all the evidence". Unfortunately, the lawyer CLF initially hired failed to timely view and preserve certain evidence from the scene, which in turn severely hampered CLF's ability to prove how the accident may have happened. With each passing day, CLF grew shorter on time while his attorney made no headway in the case. With so much at stake, CLF finally took the advice of numerous friends and family and hired Dennis Melowski.

Dennis got to work immediately to make up for the lost time. His first step was to hire an expert accident re-constructionist,  a former sheriff's deputy, who found serious deficiencies in the police investigation of CLF's case. Even more significant was the fact that Dennis' expert discovered that the speed limit for the curvy stretch of road where the accident occurred was reduced shortly after CLF's crash. As it turns out, CLF wasn't the only one who had a serious accident going around this dangerous curve. As Dennis' investigation of the case continued, it became increasingly evident that CLF wasn't at fault. Dennis took what he learned and filed a motion challenging the State's evidence against CLF. A lengthy hearing was held where Dennis cross-examined the lead police investigators. With question after question, Dennis perforated the State's case so badly that by the hearing's end, the judge wondered aloud how the prosecutor would prove its case against CLF beyond a reasonable doubt. Two weeks later, the prosecutor realized he couldn't. He filed a motion to dismiss all charges against CLF, which the judge quickly granted. Case dismissed. After more than a year of having this tremendous weight on his shoulders, CLF walked out of the courthouse completely exonerated. And while the loss of his fiancee' will stay with CLF forever, the sense of relief he experienced cannot be imagined. [The Green Bay Press Gazette account of the dismissal of the homicide charges can be read here:]