Wisconsin’s New OWI Law
2009 Wisconsin Act 100, relating to impaired driving, took effect July 1, 2010. Among several important changes, the law created new misdemeanor classifications, establishes probation eligibility for all criminal OWI offenders, permits all counties to adopt programs that offer reduced jail sentences on completion of treatment and supervision, expands orders and penalties regarding ignition interlock devices, and affects occupational license eligibility....more info.

Informing the Accused form rewritten in plain English
The Informing the Accused form is read by law enforcement officers to drivers who have been arrested for drunk driving before requesting a chemical test of breath, blood, or urine under the Implied Consent Law. It contains information about the driver's duty to take whatever tests the police request and the law enforcement agency's duty to then allow the driver additional tests....more info.

Handling OWI cases for those !@#! Illinois drivers
Wisconsin OWI cases for Illinois drivers are more complicated in significant ways and must be handled differently than OWI cases for Wisconsin drivers. Because convicted Illinois drivers face more serious negative consequences, Wisconsin lawyers handling such cases must be familiar with the basics of the Illinois system....more info.

Appealing Municipal Court Judgments to Circuit Court
Attorneys need to understand in what form and when a party aggrieved by an adverse municipal court judgment may appeal for circuit court review, because severe consequences can flow from decisions made and strategies used at the outset of a client's municipal court case....more info.

Another Look at Dram Shop Liability
Under the current approach to dram shop liability a substantial portion of the drinking driver crash-related costs fall upon innocent victims. Here's how Wisconsin compares to other
states, and what legislators can do to more fairly distribute these costs....more info.

Social Host Liability for Underage Drinking
Social hosts face liability if they knowingly provide alcohol to underage guests who then injure third parties. The Wisconsin Supreme Court recently declined to extend liability to persons who, despite being aware of an underage drinking party on their property, did not actually provide the alcohol that led to a tragic car accident. The author explores the current state of social host liability for underage drinking in Wisconsin after the court's Nichols decision....more info.

Fine, Driver's License Suspension and Traffic School
Learn when you may face a fine, traffic school, higher insurance premiums, or even the suspension of your driver's license.The consequences of not contesting a ticket, or fighting a ticket and being found guilty, can be serious. As you doubtless know, you can face a stiff fine, traffic school, significantly higher insurance premiums, and possibly even the suspension of your driver's license.

A routine ticket for speeding, failure to yield, or failure to stop at a stop sign will normally cost you between $75 and $400, depending on your state law and, sometimes, your driving record. Some states can base the fine, at least in part, on whether you have other recent violations. Otherwise, states normally have standard fines for particular violations based on the type of offense. In speeding cases, the fine can be based on how much you exceeded the posted speed limit.

The fine is often written or printed on the ticket, but if it's not, it's easy to learn the amount by calling the district attorney.

While paying up may be the easiest route for you to take, it can have lasting negative consequences to you since the violation will appear on your driving record, normally for about three years. Many states have driving school where if you go to driver’s safety school, the ticket will lessen or go away. Unfortunately Wisconsin is not one of these states.

Insurance Rates

Depending on your state law and your insurance company's policies, your auto insurance rates will normally not increase if you receive one ordinary moving violation over three to five years. Two or more moving violations -- or a moving violation combined with an at-fault accident - - during the same time period might result in an increase in your insurance bill. Unfortunately, because insurance companies follow different rules when it comes to raising the rates of policyholders who pay fines or are found guilty of a traffic violation, it's not always easy to know whether it makes sense to fight a ticket. Check with your insurance company. Sometimes that “More Inexpensive & Easy to Sign Up” policy does have its down sides.

Before you can make an informed choice as to whether to pay, go to traffic school, or fight it out in court, it makes sense to find out whether having the ticket on your record will result in your insurance rates being upped. The most direct approach is to call your insurance company and ask. The problem with this approach is that it risks alerting your insurer that you have been ticketed (something you don't want to do if you hope to successfully fight it or go to traffic school). One approach is to call your insurer anonymously and suggest you are considering switching insurance companies and want to gather information on a range of key issues, such as their criteria for good driver discounts and premium increases when covered drivers get ticketed.
Another smarter move is to do it before you get a ticket when you have nothing better to do.

License Suspensions

You won't lose your license for one or usually even two tickets for a routine moving violation like speeding, running a stoplight, or stop sign, or many other garden-variety traffic scrapes. That
is, unless you are under 18 years of age, where you could lose your driving privileges in some states.

But if you have had at least three previous convictions for moving violations in the past three to five years, you could lose your license (parking violations don't count). And if you are charged with drunk, reckless, or hit-and-run driving, and have several previous convictions for moving violations, you can be pretty sure your right to continue to hold your license is in jeopardy.

In most states, license suspensions are handled on a point system. A license is at risk of being suspended if a driver gets three or more tickets in a short period. Check the exact rules with your state's department of motor vehicles. Obviously, if you face losing your license, your incentive to fight a ticket goes way up no matter what your chances of winning.

You are typically entitled to a hearing in front of a hearing officer before your license can be revoked. At that hearing it is often a good idea to explain why at least some of the violations were the result of mistakes by the ticketing officer, but for some good reason you didn't fight the ticket. It also helps to explain the specific steps you've taken to drive more carefully and safely since the violations. Also, tell the hearing officers if it is essential that you commute to work or actually drive for your job, particularly if you will lose your job if you lose your license. Finally, if you drive 15,000 miles a year or more, you should mention this as well. Argue that since you drive more than average, your chances of getting tickets or having an accident are also above average.


In every state, only those convicted of the more serious traffic violations -- such as drunk or reckless driving -- face the possibility of going to jail. In Wisconsin, unless there are additional aggravated facts involved, an OWI is a civil violation which does not call for a sentence involving jail. State laws do not allow a judge to impose a jail sentence for speeding or failure to
stop at a signal. Even where laws do give judges the discretionary power to jail traffic offenders (such as a repeat offender), they very rarely choose to exercise it. Even though it is rare in Wisconsin, if the speeding is serious and often enough, it is a possibility


General Articles

Bail: Getting Out of Jail After an Arrest
Everything you need to know about bail: what it is, how it's set, and how to pay it.A person's first thought upon landing in jail is often how to get out -- and fast. The usual way to do this is to "post bail".
Bail is cash or a cash equivalent that an arrested person gives to a court to ensure that he or she will appear in court when ordered to do so. If the defendant doesn't show up, the court may (without a lawyer to give the court an acceptable reason why the defendant has not shown up to court….”My car is broke” might work once, but not twice) keep the bail money and issue a warrant for the defendant's arrest.

How Bail Is Set

Judges are responsible for setting bail. Because many people want to get out of jail immediately (instead of waiting up to 72 hours to see a judge), most jails have standard bail schedules that specify bail amounts for common crimes. A defendant looking for a signature bond (a bond in which all a defendant needs to do is sign vouching for his or her appearance and willing to have a judgment of XXX dollars placed against him or her if they don’t show up) needs to be put in place by a judge. This is done at a “Bond Hearing”. Sometimes the judge still insists on a cash bond if the crime is serious enough or there is a significant chance that the defendant will leave jail and not come back.

The Eighth Amendment to the U. S. Constitution requires that bail not be excessive. This means that bail should not be used to raise money for the government or to punish a person for being suspected of committing a crime. Remember: The purpose of bail is to allow the arrested person to remain free until convicted of a crime, and the amount of bail must be no more than is reasonably necessary to keep the suspect from fleeing before a case is over. However sometimes bail amounts, as mentioned before, can reflect the severity of a crime.

So much for theory. In fact, many judges set an impossibly high bail in particular types of cases (such as those involving drug sales, rape or homicide) to keep a suspect in jail until the trial is over. Although bail set for this purpose -- called preventative detention -- is thought by many to violate the Constitution, courts have uniformly rejected this argument (the issue has never been decided by the U.S. Supreme Court, the ultimate arbiter of what is and is not constitutional).

If a defendant can't afford the amount of bail on the bail schedule, he or she can ask a judge to lower it. Depending on the state, this request must be made either in a special bail setting hearing, called a “Bail Hearing” or when the defendant appears in court for the first time (usually called the initial appearance).

Paying Bail

Bail can take any of the following forms:

• Cash or check for the full amount of the bail
• Property worth the full amount of the bail, or
• A waiver of payment on the condition that the defendant appear in court at the required time (commonly called "release on one's own recognizance").

A bail bond is like a check held in reserve: It represents the arrested person's promise that he or she will appear in court when required. The bail bond is purchased by payment of a nonrefundable premium (usually about 10% of the face amount of the bond). This is the “Bail Bondsmen” system. Wisconsin does not have “Bail Bondsmen” system, though the legislature has entertained the idea recently..

A bail bond may sound like a good deal, but buying a bond may cost more in the long run. If the full amount of the bail is paid, it will be refunded (less a small administrative fee) when the case is over and all required appearances have been made. On the other hand, the 10% premium is nonrefundable. In addition, the bond seller may require "collateral". This means that the person who pays for the bail bond must also give the bond seller a financial interest in some of the person's valuable property. The bond seller can cash in on this interest if the suspect fails to appear in court.

Getting Out of Jail Free

Sometimes people are released "on their own recognizance," or "O.R." A defendant released O.R. must simply sign a promise to show up in court and is not required to post bail. These are not that common due to Wisconsin’s well used Signature Bond system.

Signature Bonds

In Wisconsin the vast majority of defendants are released on “Signature Bonds”. As mentioned before a signature bond requires the defendant to sign a piece of paper, called the signature bond” in which they are vouching for the fact that they are going to come back to court. If not the court will enter a money judgment equaling most, if not all, the amount of the bond against the defendant.

In general, defendants who are released on signature bonds have strong ties to a community, making them unlikely to flee. Factors that may convince a judge to grant a signature bond include the following:

• The defendant has family members (most likely parents, a spouse, or children) living in the community.

• The defendant has resided in the community for many years.

• The defendant has a job.

• The defendant has little or no past criminal record, or any previous criminal problems were minor and occurred many years earlier.

• The defendant has been charged with previous crimes and has always appeared as required.

Criminal Procedures: Facts
In this website there is section called, The Process. This is a rough timeline of the actual criminal procedure court process from start to finish. However this timeline doesn’t explain the vocabulary and in-depth background in to what is really going on. Hopefully this article can help with some further questions.In this Article: What's the difference between a felony and a misdemeanor?
What is the "presumption of innocence"?

How can I tell from reading a criminal statute whether I'm guilty of the crime it defines?

What standard is used in criminal trials to prove a defendant is guilty?

If I'm accused of a crime, am I guaranteed a trial by a jury?

Why would an innocent defendant choose not to testify?

What happens if a defendant is judged "incompetent to stand trial"?

What's the difference between a felony and a misdemeanor?

Wisconsin divides their crimes into two major groups: felonies and misdemeanors. Whether a crime falls into one category or the other depends on the potential punishment. If a law provides
for imprisonment for longer than a year, it is usually considered a felony. If the potential punishment is for a year or less, then the crime is considered a misdemeanor.

Behaviors punishable only by fine are usually not considered crimes at all, but civil violations - for example, traffic tickets. Sometimes a civil violation, such as a disorderly conduct, can be charges out as a misdemeanor; it depends upon the severity of the offense.

What is the "presumption of innocence"?

All people accused of a crime are legally presumed to be innocent until they are convicted, either in a trial or as a result of pleading guilty. This presumption means not only that the prosecutor must convince the jury of the defendant's guilt, but also that the defendant need not say or do anything in his own defense. If the prosecutor can't convince the jury that the defendant is guilty, the defendant goes free.

The presumption of innocence, coupled with the fact that the prosecutor must prove the defendant's guilt beyond a reasonable doubt, makes it difficult for the government to put innocent people behind bars but not impossible. If you are innocent or have a defense as to what happened; CALL US FOR A FREE CASE EVALUATION.

How can I tell from reading a criminal statute whether I'm guilty of the crime it

Criminal statutes define crimes in terms of required acts and a required state of mind, usually described as the actor's "intent." These requirements are known as the "elements" of the offense.

Determining this on your own can be tough. For example, if you have a shot of alcohol or two (and that’s all you had to drink all night long) right before you drive the two blocks where you get picked up for speeding, you might think you’re guilty of an Operating While Intoxicated or more commonly called a DUI offense. Unless you have some amazing body that absorbs alcohol entirely within two minutes, you would be wrong. Even though an hour after you were stopped you had a prohibited blood alcohol content (BAC or sometimes shown on the ticket as a PAC) of more than .08, you have to remember you had to be driving while under the influence. Riding in the back of the squad while the alcohol goes from your intestinal track into your bloodstream is not driving.

Moral of the Story:

We can see defenses you don’t even know you have because defending people successfully has been our business for years. Even if I have the best textbook on earth, I’m not going to try my hand at brain surgery. There is something to be said for education and experience.

What standard is used in criminal trials to prove a defendant is guilty?

The prosecutor must convince the judge or jury hearing the case that the defendant is guilty "beyond a reasonable doubt." This standard is very hard to meet. (By contrast, in noncriminal cases, such as an accident or breach of contract, a plaintiff has to prove her case only by a preponderance of the evidence -- just over 50%.)

As a practical matter, the high burden of proof in criminal cases means that judges and jurors are supposed to resolve all doubts about the meaning of the evidence in favor of the defendant. With such a high standard imposed on the prosecutor, a defendant's most common defense is to argue that there is reasonable doubt - that is, that the prosecutor hasn't done a sufficient job of proving that the defendant is guilty.

If I'm accused of a crime, am I guaranteed a trial by a jury?

The U.S. Constitution gives a person accused of a crime the right to be tried by a jury. You
might not want one. Let us tell you when you don’t.

Usually, a right to a trial by jury means a 12-person jury must arrive at a unanimous decision to
convict or acquit. In most states, a lack of unanimity is called a "hung jury" and the defendant
will go free unless the prosecutor decides to retry the case.However, a jury can consist of as few
as six persons. (Williams v. Florida, U.S. Sup. Ct, 1970.) This is quite common in Wisconsin
OWI 1st cases. You are not guaranteed a jury trial for an OWI 1st by the U.S. Constitution
because, in Wisconsin, an OWI 1st is a civil violation. You need to pay a fee within 10 days of
the Initial Appearance or else you waive a jury trial.

Call Us For A Free Case Evaluation.

If you want a jury trial in Wisconsin, Call Us Within 10 Days of
Getting the Ticket.

There are a few more things to discuss before your Initial Appearance. Don’t blow your case by
trying to forget about it. Call us today for free.

Why would an innocent defendant choose not to testify?

The 5th Amendment to the U.S. Constitution gives every criminal defendant the right not to
testify, and jurors are told that they cannot assume anything negative if the defendant decides to
keep quiet. Of course, some jurors do make assumptions -- and they cast their votes accordingly.

But there are some excellent reasons why a defendant might remain silent in court:

• If the defendant has previously been convicted of a crime, the prosecutor may be able to
bring this fact out -- but only if the defendant testifies. Evidence of a previous crime may
cause some jurors to think that the defendant is guilty of the current crime, too.

• If the defendant testifies, the prosecutor may be able to bring out other information that
tarnishes the defendant's reputation and discredits his testimony.

• Some defendants have a poor demeanor when speaking in public. A judge or jury may
not believe a defendant who, though telling the truth, is a nervous witness and makes a
bad impression.

• The defendant may have a perfectly good story that would nevertheless sound fishy to the
average jury in that particular locale.

What happens if a defendant is judged "incompetent to stand trial"?

The question may arise as to whether a defendant is mentally capable of facing a trial.
Defendants cannot be prosecuted if they suffer from a mental disorder that prevents them from
understanding the proceedings and assisting in the preparation of their defense.

Based on a defendant's unusual behavior, a judge, prosecutor, or defense attorney may ask that
trial be delayed until the defendant has been examined and his or her ability to understand the
proceedings has been determined in a court hearing. If a judge finds that a defendant doesn't
understand what's going on, the defendant will probably be placed in a mental institution until
competence is reestablished. At that time, the trial will be held.

Do people convicted of the same or similar crimes receive similar sentences?

Some states include "mandatory sentences," which require judges to impose specific and
identical sentences on all defendants who violate those laws. Mandatory sentencing laws are a
response by state legislatures to their perception of the public's desire to end judicial leniency
and treat alike all people who break the same law. Federal law used to prescribe mandatory
sentences; these are now used more like guidelines.

More commonly, criminal statutes do not carry mandatory sentences. Rather, judges can
take a number of factors into account when deciding on an appropriate punishment. For
instance, judges may consider the defendant's past criminal record, age, and sophistication; the
circumstances under which the crime was committed; and whether the defendant genuinely feels
remorse. In short, mandatory sentence laws "fit the punishment to the crime," whereas judges

What factors do judges use in determining sentences?

If the judge has discretion to determine the sentence, the defense may bring to a judge's attention
an infinite number of factual circumstances that may move the judge to impose a lighter
sentence. The following are examples of such circumstances (called "mitigating" factors):

• The offender has little or no history of criminal conduct.

• The offender was an accessory to the crime (helped the main offender) but was not the
main actor.

• The offender committed the crime when under great personal stress; for example, he or
she had lost a job, was late on rent, and had just been in a car wreck.

• No one was hurt, and the crime was committed in a manner that was unlikely to have hurt

Just as mitigating circumstances can sway a judge to lessen a sentence, "aggravating"
circumstances can compel a judge to "throw the book at" an offender. A previous record of the
same type of offense is the most common aggravating factor. Other aggravating circumstances
grow out of the way a crime was committed, as when an offender is particularly cruel to a victim.
Sometimes, laws themselves specify aggravating factors, such as the use of a weapon.

Can my attorney ask for an alternative sentence?

Yes, lesser sentences can include suspended sentences, probation, restitution (victim
compensation), and community service. Diversion programs, available to some defendants
charged with misdemeanors involving drugs or alcohol, also may be available.

Defendants' Incentives for Accepting Plea

Learn some of the most common reasons why a defendant might want to enter into a plea
As criminal courts become more crowded, prosecutors and judges feel increased pressure to
move cases quickly through the system. Cases involving trials can take months while guilty pleas
can often be arranged in minutes with a court date in a few weeks. This provides defendants with
an opportunity to negotiate a plea bargain.
Incentives for the Defendant to Accept a Plea Bargain

For most defendants, the principal benefit of plea bargaining is receiving a lighter sentence for a
less-severe charge than might result from taking the case to trial and losing. Also, the outcome
of any given trial is usually unpredictable -- but a plea bargain provides both prosecution and
defense with some control over the result.

There are other benefits as well:

Saving money. Defendants who are represented by private counsel can save a bundle on
attorneys' fees by accepting a plea bargain. It almost always takes more time and effort to bring a
case to trial than to negotiate and handle a plea bargain.

Getting out of jail. Defendants who are held in custody -- who either do not have the right
to bail or cannot afford bail, or who do not qualify for release on their own recognizance or a
signature bond -- may get out of jail immediately following the judge's acceptance of a plea.
Depending on the offense, the defendant may get out altogether, on probation, with or without
some community service obligations. Or, the defendant may have to serve more time but will
still get out much sooner than if he or she insisted on going to trial.

Resolving the matter quickly. A plea bargain provides resolution to the stress of being charged
with a crime. Going to trial usually requires a much longer wait -- and causes much more stress -
- than taking a plea bargain.

Having fewer or less-serious offenses on one's record. Pleading guilty or no contest in
exchange for a reduction in the number of charges or the seriousness of the offense looks a lot
better on a defendant's record than the convictions that might result following trial. This can be
particularly important if the defendant is ever convicted in the future.

Even for people who are never rearrested, getting a charge reduced from a felony to a
misdemeanor has other benefits:
• Some professional licenses must be forfeited upon conviction of a felony.
• Future employers may not want to hire someone previously convicted of a felony.
• Felony convictions may be used in certain court proceedings (even civil cases) to
discredit people who testify as witnesses.
• Felons can't own or possess firearms.
• In many jurisdictions, felons can't vote at least while on supervision.

Having a less socially stigmatizing offense on one's record. Prosecutors may reduce charges
that are perceived as socially offensive to less-offensive charges in exchange for a guilty plea.
For example, a prosecutor may reduce a 3rd degree sexual assault to a battery. This can have a
major impact on the defendant's relationship with friends and family. Perhaps even more critical,
sometimes defendants convicted of stigmatizing offenses may be at a greater risk of being
harmed (or killed) in prison than if they are convicted of an offense that doesn't carry the same

Avoiding hassles. Some people plead guilty -- especially to routine, minor first offenses --
without hiring a lawyer. If they waited to go to trial, they would have to find a good lawyer and
spend both time and money preparing for trial.

Avoiding publicity. Famous people, ordinary people who depend on their reputation in the
community to earn a living, and people who don't want to bring further embarrassment to their
families all may chose to plead guilty or no contest to keep their names out of the public eye.
While news of the plea itself may be public, the news is short-lived compared to news of a trial.
And rarely is a defendant's background explored in the course of a plea bargain to the extent it
may be done at trial.

Keeping others out of the case. Some defendants plead guilty to take the blame (sometimes
called the "rap") for someone else, or to end the case quickly so that others who may be jointly
responsible are not investigated.

Incentives for Judges and Prosecutors to Negotiate Plea Bargains

For a judge, the primary incentive for accepting a plea bargain is to move along a crowded
calendar. Most judges simply don't have time to try every case that comes through the door.
Additionally, because jails are overcrowded, judges may face the prospect of having to release
convicted people before they complete their sentences. Judges often reason that using plea
bargains to "process out" offenders who are not likely to do much jail time leads to fewer
problems with overcrowding.

Prosecutors are also concerned about clogged calendars. Crowded calendars mean that the
prosecutor's staff is overworked. Because plea bargains are much quicker and require less work
than trials, they are also easier on the prosecutor's budget.

To learn more about plea bargains and everything else you need to know about criminal trials,
get The Criminal Law Handbook: Know Your Rights, Survive the System, by attorneys Paul
Bergman and Sara J. Berman-Barrett (Nolo). This article has been edited by Attorney Mark
Mullen to comply with Wisconsin laws.

Defenses to Criminal Charges
Here are some of the common defenses that criminal defendants can raise to defend against
criminal charges.To convict a criminal defendant, the prosecutor must prove the defendant guilty beyond a
reasonable doubt. As part of this process, the defendant is given an opportunity to present
a defense. There are many types of defenses, from "I didn't do it" to "I did it, but I was too
drunk to know what I was doing." Here are some of the most common defenses that criminal
defendants can raise.
The Defendant Didn't Do It

Most often defendants try to avoid punishment by claiming they did not commit the act in

The Presumption of Innocence

All people accused of a crime are legally presumed to be innocent until they are convicted, either
in a trial or as a result of pleading guilty. This presumption means not only that the prosecutor
must convince the jury of the defendant's guilt, but also that the defendant need not say or do
anything in his own defense. A defendant may simply remain silent, not present any witnesses,
and argue that the prosecutor failed to prove his or her case. If the prosecutor can't convince the
jury that the defendant is guilty, the defendant goes free.

Reasonable Doubt

The prosecutor must convince the judge or jury hearing the case that the defendant is
guilty "beyond a reasonable doubt." This standard is very hard to meet. As a practical matter, the
high burden of proof in criminal cases means that judges and jurors are supposed to resolve all
doubts about the meaning of the evidence in favor of the defendant. With such a high standard
imposed on the prosecutor, a defendant's most common defense is often to argue that there is in
fact reasonable doubt.

The Alibi Defense

An alibi defense consists of evidence that a defendant was somewhere other than the scene of the
crime at the time it was committed. For example, assume that Freddie is accused of committing
a burglary on Elm Street at midnight on Friday, September 13. Freddie's alibi defense might
consist of testimony that at the time of the burglary, Freddie was watching Casablanca at the
Maple Street Cinema.

The Defendant Did It, But ...

Sometimes a defendant can avoid punishment even if the prosecutor shows that that the
defendant did, without a doubt, commit the act in question.


Self-defense is a defense commonly asserted by someone charged with a crime of violence, such
as battery (striking someone), assault with a deadly weapon, or murder. The defendant admits
that he or she did in fact commit the crime, but claims that it was justified by the other person's
threatening actions. The core issues in most self-defense cases are:
• Who was the aggressor?
• Was the defendant's belief that self-defense was necessary a reasonable one?
• If so, was the force used by the defendant also reasonable?

Self-defense is rooted in the belief that people should be allowed to protect themselves from
physical harm. This means that a person does not have to wait until he or she is actually struck to
act in self-defense. If a reasonable person in the same circumstances would think that he or she
is about to be physically attacked, that person has the right to strike first and prevent the attack.
However, an act of self-defense cannot use more force than is reasonable -- someone who uses
too much force may be guilty of a crime.

The Insanity Defense

The insanity defense is based on the principle that punishment is justified only if the defendant
is capable of controlling his or her behavior and understanding that what he or she has done is
wrong. Because some people suffering from a mental disorder are not capable of knowing or
choosing right from wrong, the insanity defense prevents them from being criminally punished.

The insanity defense is an extremely complex topic; many scholarly works are devoted entirely
to explaining its nuances. Here are some major points of interest:
• Despite popular perceptions to the contrary, defendants rarely enter pleas of "not guilty
by reason of insanity." When they do, judges and jurors rarely uphold it.
• Various definitions of insanity are in use because neither the legal system nor
psychiatrists can agree on a single meaning of insanity in the criminal law context.
The most popular definition is the "McNaghten rule," which defines insanity as "the
inability to distinguish right from wrong." Another common test is known as "irresistible
impulse": a person may know that an act is wrong, but because of mental illness he or she
cannot control his or her actions (this person is described as acting out of an "irresistible
• Defendants found not guilty by reason of insanity are not automatically set free. They are
usually confined to a mental institution until their sanity is established. These defendants
can spend more time in a mental institution than they would have spent in prison had they
been convicted.
• An insanity defense normally rests on the testimony of a psychiatrist, who testifies after
examining the defendant, his or her history, and the facts of the case. Courts appoint
psychiatrists at government expense to assist poor defendants who cannot afford to hire
their own psychiatrists.
• Once a defendant raises his or her sanity as a defense, he or she must submit to
psychological tests conducted at the behest of the prosecution. This can be a very painful
and humiliating experience, one that many defendants choose to forgo rather than rely on
the insanity defense.

Under the Influence

Defendants who commit crimes under the influence of drugs or alcohol sometimes argue that
their mental functioning was so impaired that they cannot be held accountable for their actions.
Generally, however, voluntary intoxication does not excuse criminal conduct. Defendants know

(or should know) that alcohol and drugs affect mental functioning, and thus they should be held
legally responsible if they commit crimes as a result of their voluntary use.

Some states allow an exception to this general rule. If the defendant is accused of committing
a crime that requires "specific intent" (intending the precise consequences, as well as intending
to do the physical act that leads up to the consequences), the defendant can argue that he was
too drunk or high to have formed that intent. This is only a partial defense, however, because
it doesn't entirely excuse the defendant's actions. In this situation, the defendant will usually
be convicted of another crime that doesn't require proof of a specific intent. For example,
a defendant may be prosecuted for the crime of assault with specific intent to kill but only
convicted of assault with a deadly weapon, which doesn't require specific intent.


Entrapment occurs when the government induces a person to commit a crime and then tries
to punish the person for committing it. However, if a judge or jury believes that a suspect was
predisposed to commit the crime anyway, the suspect may be found guilty even if a government
agent suggested the crime and helped the defendant to commit it. Entrapment defenses are
therefore especially difficult for defendants with prior convictions for the same type of crime.

To learn more about criminal defenses and all other aspects of a criminal trial, get The Criminal
Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara J. Berman-
Barrett (Nolo).

Party To The Crime
Anyone who intentionally participates in a crime or helps a
criminal before or after a crime may be held responsible for
the crime under accomplice liability.People can participate in crimes in different ways and to different degrees. For instance, in a
bank robbery, one person may enter the bank and conduct the holdup, while another person is
waiting in the getaway car and a third person is positioned at a different location as a spotter.
Principals and Accomplices

As a general rule, the law refers to the main actor in a crime as the principal and to assisting
persons as accomplices. Technically, an accomplice is one who intentionally helps another to
commit a crime.

Even if an accomplice does not carry out the crime, in the eyes of the law the accomplice's pre-
crime assistance makes him or her just as guilty as the person who does the deed itself. For
example, assume that Lars Senny breaks into a warehouse and steals property belonging to the
warehouse owner. Hal Perr would be Lars's accomplice and just as guilty as Lars if Hal takes any
of the following steps to assist Lars to commit the theft:
• Hal works in the warehouse and drugs the warehouse night watchman before leaving
work on the day of the theft.
• Hal cuts the wires to the burglar alarm (or cuts a hole in the fence) so that Lars can enter
the warehouse without being detected.
• Hal is a designer of warehouses and meets with Lars a week before the theft to review
warehouse layouts and exit routes.
• Hal rents a U-Haul and parks it outside the warehouse on the night of the robbery.
Knowing what Lars has in mind, Hal agrees to babysit for Lars's infant child while Lars
goes to the warehouse.

To prove that a defendant is an accomplice, the government must prove that he or she
intentionally aided in the commission of a crime. This means that the defendant must realize
that the principal is going to commit a crime and that the accomplice intends to help the crime

Accomplices, Accessories, Aiders and Abettors, and

To distinguish the criminal culpability of one from another, the common law developed
specialized terms for the various ways in which one could be an accomplice. For instance,
a "principal in the first degree" was the person who actually carried out a crime. A "principal in
the second degree" (an "aider and abettor") was a helper who was present at a crime scene but
in a passive role, such as acting as a "lookout." An "accessory before the fact" was a helper who
was not present at the crime scene. While some state laws retain the common law terminology,
few states make any distinction between the criminal liability of crime perpetrators and their
accomplices. All can be punished equally, whether they actually perpetrate a crime or only help
bring it about.

Accessory After the Fact

An accessory after the fact is someone who, knowing that a felon has finished committing a
crime (usually the crime has to be a felony), helps the felon avoid arrest or trial. In most states,
accessories after the fact face far less punishment than accomplices or principals.


Conspirators are two or more people who agree to commit a crime. (The distinction between
accomplices and conspirators is that the former are "helpers," while each conspirator is a
principal.) Conspiracy is a controversial crime, in part because conspirators can be guilty even if
the crime that they agree to commit never occurs. As a result, conspirators can be punished for
their illegal plans rather than for what they actually do. As some protection against convicting
people purely for their private thoughts, in most states conspirators are not guilty of the crime of
conspiracy unless at least one of them commits an "overt act." An "overt act" is an activity that in
some way moves a conspiracy into motion.

Search Warrants: What They Are and When
They're Necessary

Learn when police officers must obtain a warrant before they search your home or other
property.A search warrant is an order signed by a judge that authorizes police officers to search for
specific objects or materials at a definite location at a specified time. For example, a warrant may
authorize the search of "the premises at 11359 Happy Glade Avenue between the hours of 8 a.m.
to 6 p.m." and direct the police to search for and seize "cash, betting slips, record books, and
every other means used in connection with placing bets on horses."
How Police Obtain Search Warrants

Police officers obtain search warrants by convincing a judge or court commissioner that they
have "probable cause" to believe that criminal activity is occurring at the place to be searched
or that evidence of a crime may be found there. Usually, the police provide the judge or court
commissioner with information in the form of written statements under oath, called "affidavits,"
which report either their own observations, or those of private citizens or police undercover
informants. If the judge believes that the affidavit establishes probable cause to conduct a search,
he or she will issue a warrant.

The suspect, who may be connected with the place to be searched, is not present when the
warrant is issued and therefore cannot contest the issue of probable cause at that time. However,
the suspect can later challenge the validity of the warrant before trial.

What Police Can Search for and Seize Under a Warrant

The police can search only the place described in a warrant and usually can seize only the
property that the warrant describes. The police cannot search a house if the warrant specifies the
backyard, nor can they search for weapons if the warrant specifies marijuana plants. However,
this does not mean that police officers can seize only those items listed in the warrant. If, in the
course of their search, police officers come across contraband or evidence of a crime that is not
listed in the warrant, they can lawfully seize the unlisted items.

If the warrant specifies a certain person to be searched, the police can search only that person,
unless they have independent probable cause to search other persons who happen to be present at
the scene of a search. If an officer merely has a reasonable suspicion that an onlooker is engaged
in criminal activity, the officer can only question the onlooker and, if necessary for the officer's
safety, conduct a frisk for weapons (but not do a full search).

When Search Warrants Aren't Required

Most searches occur without warrants being issued. Over the years, the courts have defined a
number of situations in which a search warrant is not necessary, either because the search is per
se reasonable under the circumstances or because, due to a lack of a reasonable expectation of
privacy, the Fourth Amendment doesn't apply at all.

Consent Searches

If the person in control of the premises freely and voluntarily agrees to the search, the search
is valid and whatever the officers find is admissible in evidence. Police officers do not have to
warn people that they have a right to refuse consent to a search. If a police officer wrangles a
consent through trickery or coercion, the consent does not validate the search.

Many disputes about consent have to do with who has the right to consent. If there are two or
more separate tenants in one dwelling, courts often rule that one tenant has no power to consent
to a search of the areas exclusively controlled by the other. This does not work for couples
living together. It is more often saved for college students who share a divided house. Similarly,
a landlord lacks authority to consent to a search of leased premises. The same is true for hotel

On the other hand, an employer can validly consent to a search of company premises, which
extends to an employee's work area but not to clearly private areas such as an employee's clothes
locker. A tricky twist is that the consent in these types of cases will be considered valid if the
police reasonably believe that the consenting person has the authority to consent, even if it turns
out they don't.

The Plain View Doctrine

Police officers do not need a warrant to search and seize contraband or evidence that is "in
plain view" if the officer has a right to be where the evidence or contraband is first spotted. For
instance, the police may search for and seize marijuana growing outdoors if they first spot the
marijuana from an airplane or helicopter, since the marijuana is deemed to be in plain view.
Similarly, if an officer walks by a car and spots evidence or contraband through the car window,
a search may be conducted without a warrant. The same rule would apply if an officer is in your
home for other valid reasons and spots drugs on a table or cabinet.

Search Made in Connection With an Arrest

Police officers do not need a warrant to make a search "incident to an arrest." After an arrest,
police officers have the right to protect themselves by searching for weapons and to protect the
legal case against the suspect by searching for evidence that the suspect might try to destroy.

Police may sometimes also make what's known as a "protective sweep" following an arrest if
they have a reasonable belief that a dangerous accomplice might be hiding inside a residence.
When making a protective sweep, police officers can walk through a residence and make
a "cursory visual inspection" of places where an accomplice might be hiding. For example,
police officers could look under beds and inside closets. If a sweep is lawful, the police can
lawfully seize contraband or evidence of crime that is in plain view during the sweep.

The Emergency Exception

As a general rule, the police are authorized to make a warrantless search when the time it would
take to get a warrant would jeopardize public safety or lead to the loss of important evidence.
Here are some situations in which most judges would uphold a warrantless search:
• An officer checks an injured motorist for possible injuries following a collision and finds
illegal drugs.
• Following a street drug arrest, an officer enters the house after the suspect shouts into the
house, "Eddie, quick, flush it!" The officer arrests Eddie and seizes the stash.
• A police officer on routine patrol hears shouts and screams coming from a residence,
rushes in, and arrests a suspect for spousal abuse.
• A police officer "in hot pursuit" of a fleeing suspect continues the chase into the suspect's
dwelling in order to make the arrest.

In these types of emergency situations, an officer's duty to protect people and preserve evidence
outweighs the warrant requirement.

Allowing Police to Make a Warrantless Search

A search warrant is not always legally necessary, and a police officer may have information
of which a person is unaware that allows the officer to make a warrantless entry. If an officer
announces an intention to enter a home or building without a warrant, a person should not risk
injury or a separate charge of "obstructing an officer." Rather, the person should stand aside, let
the officer proceed and allow a court to decide later whether the officer's actions were proper. At
the same time, the person should make it clear that he or she does not consent to the search.

Searches of Cars and Their Occupants

Cars may be searched without a warrant whenever the car has been validly stopped and the
police have probable cause to believe the car contains contraband or evidence. If the police have
probable cause to search the car, all compartments and packages that may contain the evidence
or contraband being searched for are fair game.

While a police officer cannot search a car simply because the car was stopped for a traffic
infraction, the police can order the driver and any passengers out of the car for safety
considerations, even though there is no suspicion of criminal wrongdoing other than the
traffic infraction. The police also can "frisk" the occupants for weapons if the officers have
a "reasonable suspicion" that the occupants are involved in criminal activity and are reasonably
concerned for their safety.

For more information on the legality of various police searches and seizures, get The Criminal
Law Handbook: Know Your Rights, Survive the System, by Paul Bergman (Nolo) or talk to one
of our Attorneys for free at (888) 375-3056.

Sentencing Alternatives: Prison, Probation,
Fines, and Community Service

A convicted defendant's punishment need not include prison.A sentence may involve one or more different elements, including incarceration (prison, jail),
probation, restitution (victim compensation), and community service.
Prison Sentences

Some state laws require the judges to impose what are called "determinate" prison sentences. The
State of Wisconsin has a set of laws called “Truth in Sentencing” which dictate a determinate
sentence. A determinate sentence is a fixed-term sentence pronounced by a judge. For example,
a defendant sentenced to "30 days in county jail" or "five years in state prison" has received a
determinate sentence.

Other state laws require judges to give "indeterminate sentences." (Wisconsin is not one of
them….We have a “Truth in Sentencing” sentence determinate law) Indeterminate sentences are
those in which the legislature sets a minimum and/or maximum time of incarceration but leaves
the decision as to when to release an inmate to prison officials. As a general rule, indeterminate
sentences are only imposed on people who are sentenced to state prison after being convicted of
a felony.

Suspended Sentences and Probation

Sometimes a defendant's prison sentence is "suspended." A suspended sentence is jail or prison
time that is put on hold if the defendant complies with certain other obligations, for example, the
conditions of probation or the completion of a drug treatment program.

Under a suspended sentence, if the prosecution or probation department can convince a judge
that the defendant violated the condition that led to the sentence being suspended in the
first place, the judge has authority to order the defendant to serve the original sentence. The
probationer is not entitled to a full-blown trial when the question is only whether the defendant
violated probation, though the prosecution can choose to also file charges on the incident.

Most states limit when and under what circumstances a court may impose probation on a
criminal defendant. For instance, some states do not allow a judge to impose probation on
defendants who have a prior conviction for cocaine sales.

Offenders who are put on probation are typically required to adhere to a number of "conditions
of probation," including:
• Obey all laws.
• Abide by any court orders, such as an order to pay a fine or restitution.
• Report regularly to the probation officer.
• Report any change of employment or address to the probation officer.
• Abstain from the use of alcohol or the use of any non-prescribed narcotic drugs.
• Submit to regular alcohol or drug testing.
• Refrain from travel outside of the jurisdiction or state without prior permission of the
probation officer.
• Avoid certain people and places.

If a probation violation is discovered and reported, it is likely that the court will conduct a
probation revocation hearing.


Fines are a common punishment for a variety of crimes, especially less serious offenses
committed by first-time offenders. Offenses that are typically punished by a fine include minor
drug possession (of a small amount of marijuana, for example), fish and game violations,
shoplifting and traffic violations. In more serious offenses or where the defendant has a criminal
record, many judges combine a fine with other punishments, such as incarceration, community
service, and probation.


A forfeiture is similar to a fine, but paid in a civil ordinance violation, such as a speeding ticket,
county disorderly ticket or, on in Wisconsin, an OWI 1st.


While fines go to the state (or federal or local government prosecuting the crime), restitution
is money paid by the defendant to the victim or to a state restitution fund. Offenders may be
required to return or replace stolen or damaged property, to compensate victims for physical
injuries or for medical and psychological treatment costs, or to pay funeral and other costs where
a victim dies.

In some cases, the "victim" is society, such as in welfare and Medicare fraud schemes, where
defendants may be sentenced to pay the state back the money defrauded. Typically, the
defendant will be ordered to pay restitution as just one part of the sentence, in addition to prison,
community service, and/or probation.

Community Service

Judges can sentence defendants to perform unpaid community work called "community service"
to repay a debt to society for having committed the offense. The defendant may be required to
perform community service in addition to receiving some other form of punishment, such as
probation, a fine, or restitution.

Miscellaneous "Alternative Sentences"

There are many different types of "alternative sentences," which can include fairly innovative
punishments. Offenders have been required to:
• Install breathalyzer devices in their cars so that their cars will not start unless the offender
has "clean" breath. This is more often than not mandatory under an OWI conviction as
part of the sentence
• Give lectures or teach classes about the dangers of criminal behavior
• Complete a drug or alcohol treatment program
• Stay at home under "house arrest." a.k.a. “the ankle bracelet”. These are only offered by
the jails under their own guidelines and at their discretion, not the courts.


Some cases can be "diverted" out of the criminal justice system. Criminal charges are normally
dropped when a defendant successfully completes a diversion program. Diversion gives
defendants a chance to escape the stigma of a criminal conviction.

Defendants whose cases are diverted typically have to participate in a treatment or rehabilitation
program. Diversion programs are most often available to defendants charged with misdemeanors
and nonviolent felonies involving drugs or alcohol. In some jurisdictions, diversion may be
available to defendants charged with domestic violence, child abuse or neglect, traffic-related
offenses, or even writing bad checks.

Prosecutors sometimes voluntarily offer diversion to defendants who are clearly eligible under a
community's guidelines. Defense counsel may also suggest diversion to prosecutors, sometimes
even before formal charges are filed.

The Right to Own a Gun Under Heller
How far does the Supreme Court's ruling on an individual’s right to own a gun under
Heller go?
In District of Columbia v. Heller, 54 U.S. ___ (2008), the U.S. Supreme Court ruled that the U.S.
Constitution protects an individual's right to own a gun for personal use. Yet despite the Court’s
clear ruling that people may keep a loaded handgun at home for self-defense, Heller allows for
certain restrictions to gun ownership. The ruling leaves many uncertainties as to which types of
gun control laws will be allowed to stand and which will be ruled unconstitutional.
What Heller Says

The Heller case involved a challenge to the District of Columbia's ban on handguns. For the first
time in nearly 70 years, the U.S. Supreme Court ruled on the meaning of the Second Amendment
to the U.S. Constitution as it relates to gun control laws.

The Second Amendment provides that "A well-regulated militia, being necessary to the security
of a free state, the right of the people to keep and bear arms, shall not be infringed."

For many years, scholars and anti-gun proponents have argued that the Second Amendment
provides “a right to own guns” only in connection with service in a militia, and that this right
should not extend to private individuals. That argument was roundly rejected by the Supreme
Court. In an opinion authored by Justice Antonin Scalia, the Court held that the right to own
a gun is not connected with service in a militia; rather, it is a personal right to own a firearm
for "traditionally lawful purposes" such as self-defense within the home.

The bottom line: You have a constitutional right to possess a firearm regardless of whether you
are serving in a militia. But just how far that right extends remains up in the air.

How Heller Affects Gun Control Laws

How much the ruling in Heller will affect gun control laws in various cities and states remains to
be seen.

The gun control law at issue in the Heller case -- a nearly across-the-board gun ban in the
District of Columbia -- was considered to be the strictest gun-control law in the nation.
Because the Supreme Court's ruling concerned only this strict ban on handguns, the decision
leaves unclear whether less-stringent bans in other states and cities will survive constitutional

And, although the Supreme Court's decision adopted the broader, individual-rights interpretation
of the Second Amendment, the Court also made it clear that the right to own a gun continues to
have a number of significant qualifications or restrictions, including:
Not everyone can own a gun. The right does not extend to felons or the mentally ill.
Guns cannot be carried everywhere. Laws forbidding individuals from carrying
firearms in "sensitive" places, such as schools and government buildings, will probably
Certain restrictions on the sale of guns are allowed. Laws imposing conditions and
qualifications on the commercial sale of firearms will most likely stand.
Individuals do not have the right to carry certain types of guns. The right does not
protect guns that are not generally owned for lawful purposes, such as short-barreled
shotguns. Just what kind of handguns may be possessed is not explicitly set forth in
the opinion (apart from the one specific reference to sawed-off shotguns, which are not
allowed). The Court did endorse the "the historical tradition of prohibiting the carrying
of 'dangerous and unusual weapons,'" but did not state whether such weapons include
assault weapons or semi-automatic weapons.

Given this long list of qualifications, it remains unclear how Heller will affect the many different
types of gun control laws that exist in cities and states throughout the country.

New Challenges to Gun Control Laws

One thing is for sure: Advocates all over the country will now challenge gun control laws based
on the Supreme Court's ruling in Heller. Within a day of the decision, lawsuits challenging gun
control laws had been filed in Chicago and San Francisco, and additional challenges are expected
in New York, Philadelphia, Detroit, and countless other cities.

While gun rights advocates like the National Rifle Association hailed the Supreme Court's
decision as a welcome addition to their arsenal in the ongoing war against gun control laws, only
time (and future court decisions) will tell whether the Court's ruling marks the beginning of a
comprehensive rollback of gun control restrictions in this country or is merely a symbolic ruling
that will ultimately leave most of those laws in effect.