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DUI law changes could mean more work for defense

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While criminal defense lawyers are skeptical that recent revisions to the drunken driving laws will curb offenders, they concede that the changes are probably good for business.

Stiffer punishments for some first and fourth offenses will likely prompt more people to seek counsel, said Madison defense attorney Tracey Ann Wood.

“Every time the drunken driving laws change, my business goes up,” she said.

That was true when the state dropped the blood-alcohol limit from 0.10 to 0.08 six years ago.

The new changes, which go into effect July 1, make a fourth drunken driving offense that occurs within five years of a previous offense a felony. They also provide that first-time lawbreakers with a child younger than 16 in the vehicle will be charged with a misdemeanor.

All other first offenses would remain traffic citations. Wisconsin is the only state which still treats almost all first drunken driving offenses as traffic violations.

Milwaukee defense attorney John A. Birdsall agreed that the threat of a criminal charge for more offenders will benefit his practice, but it will also require more time and resources.

“I think it’s going to lead to more creative lawyering in terms of getting people into treatment and possibly negotiating reduced jail sentences,” he said. “District attorneys have a lot more leverage on us now.”

Milwaukee County District Attorney John T. Chisholm said he expects an increase in both felony and misdemeanor prosecutions as a result of the changes.

“No question there will be more,” he said.

But Chisholm noted that the impact on his office will be considerably less than if a proposal to make all first offenses a crime had survived the legislative process.

According to Brookfield DUI attorney Julius Kim, he rarely encounters clients who thought they were impaired when they decided to get behind the wheel. Coupled with the added penalties, that likely means steady work for him and other defense attorneys.

“I’m only half-joking when I say the only people who benefit from this are the criminal defense lawyers,” said Wood, of Van Wagner & Wood SC.

Kim’s law partner, Jonathan A. LaVoy, noted that even if there isn’t a tremendous increase in the volume of clients, there will certainly be a rise in the severity of cases.

“Most people prosecuted for a felony or misdemeanor would look to hire a defense lawyer,” he said. “And these changes are going to put people we represent in much more serious situations.”

Both he and Birdsall said they expect that the new laws are only the first wave of changes.

Birdsall suggested that within five years, all first offenses will be misdemeanors and “all fourth offenses will be felonies.”

Minors being charged?

LaVoy expressed concern as that in some circumstances the changes could lead to a minor making a one-time mistake facing a criminal conviction.

For example, if an underage driver is arrested for drunken driving while riding around in car a full of teenagers, that minor could be charged with a crime, instead of being issued a ticket.

“Up until this point, in that situation the penalties doubled, but it remained a citation,” LaVoy said. “Now, this makes it a criminal charge where there is that potential jail component.”

The new laws did include an expansion of a Winnebago County program that allows judges to offer reduced jail time for people who complete an alcohol or drug treatment program.

But Kim said legislators should have done more to deter drunken driving with public service campaigns, rather than focusing on harsher punishments.

“I think a more proactive rather than a reactive approach would be better,” he said. “Changing the punishment structure isn’t going to solve the problem.”

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