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Wisconsin Criminal Law
“Criminal Law” is a general term used to refer to all of the laws of a government that exist to prevent crimes or violations of society’s rules. “Criminal Law” also refers to the profession of providing legal representation to people suspected, accused, or convicted of a crime. Despite its name, criminal law includes both criminal and noncriminal laws.
What Is A Crime?
A crime is an illegal act prohibited by law and punishable by fine or imprisonment, or both. A noncriminal illegal act is conduct prohibited by law, but only punishable by forfeiture (fines and property surrenders). The codified laws define each element of a crime that the state prosecuting attorney must prove for a conviction, and provide punishment guidelines for minimum and maximum jail time, prison time and fines.
Who Is Your Attorney?
The person charged is the “defendant”. The person representing the defendant is a “criminal defense attorney”. Your criminal defense lawyer will defend you, protect your rights from being violated, assess the charge or charges against you, seek to have charges dismissed or reduced whenever that is an option, motion the court to have evidence suppressed if it should be, and> explain your options to you, and work to minimize your punishment.
You Are Up Against The Government and Their Attorneys
The state government is the “plaintiff” in a criminal case and is represented by the District Attorney’s office that assigns a “prosecutor”. The police, prosecutor, district attorney, judge and bailiff are all members of the justice system. All of the facts, evidence, forensic lab findings, police investigation, and witness testimony create the “case” and the prosecutor tries to prove that case against the defendant in a court of law. However, none of the members of the justice system will help you understand the written law, the criminal defense process, how to have charges dismissed, or how to suppress evidence; in fact the entire criminal justice system seeks the exact opposite outcomes because the criminal justice system exists to investigate suspects, compile evidence, charge suspects, prove guilt and obtain satisfaction on behalf of the public for the wrong doing. That satisfaction comes by way of jail or prison sentences imposed upon the convicted defendant, fines or both.
Criminal Justice System
The criminal justice system is a huge network of policing authorities, crime labs, forensics specialists, prosecutors, judges, correctional facilities and criminal defenders. The criminal defense process involves very complex procedural rules. Anyone suspected, charged or convicted of a crime should seek legal advice from a very experienced criminal defense attorney.
Juvenile Justice System
Crimes committed by children (people under the age of 17 years), known as “juvenile crimes” fall under “juvenile law” and the jurisdiction of the juvenile justice system. Juvenile court procedures tend to be less formal and many juvenile justice systems offer alternative sentencing such as diversionary programs.
Criminal Charges and Noncriminal Charges
Charges are allegations, which are accusations; they are not convictions. Criminal charges accuse a person of violating a state law (statute) and regardless of the evidence gathered, must be proven by a prosecuting attorney in a court of law or admitted to by the defendant.
Noncriminal charges accuse a person of violating a municipal ordinance or a noncriminal state law: Charges are “brought against a person” when they are formally filed by the district attorney office, and the person is “charged” with a specific offense or offenses. Before formal charges are filed, a person is “suspected” of committing a crime. When the state files formal charges against a person, called a complaint or an information, the state is “indicting” the person on the charges. Once charged, the prosecutor tries to prove the person’s guilt, referred to as prosecuting the case, and the criminal defense lawyer tries to defend the accused person against those charges.
Felony, Misdemeanor, Forfeiture
Wisconsin law classifies criminal and noncriminal offenses into one of three categories according to the severity of the act: Felony, Misdemeanor, and Forfeiture (Fines). Felony charges are the most severe offenses, and are punishable by one or more years of imprisonment in the Wisconsin state prison system, or fines, or both. All other crimes are Misdemeanors and are punishable by less than one year in county jail or fines or both. Forfeitures are fines and property surrenders – they are the punishment for a non criminal conviction.
Wisconsin’s “Open Records” Law – Criminal Records
Wisconsin’s “Open Records” law provides public access to the Wisconsin Circuit Court information database called CCAP, which can be accessed online: http://wcca.wicourts.gov. Most criminal charges are published on CCAP.
Drunk Driving – Criminal Charges
A first offense drunk driving charge is a noncriminal offense. A second through fourth drunk driving offense is a misdemeanor charge, whereas a fifth or subsequent drunk driving charge is a felony.
If you are under investigation, whether or not you have been questioned, you are a suspect. If the police question you, regardless of what they say, you have the right to have your attorney present. If police believe that you possess evidence, they may ask you for access into your home, or they may ask a judge for a search warrant.
During the investigation process, if authorities have gathered enough evidence to convince a judge that a crime was committed and that you committed that crime or were party to its commission, the judge may issue a warrant for your arrest. When the police receive an arrest warrant, they take you into custody, regardless of the charges and regardless of whether you are innocent. The actual charges determine the type and amount of bond allowed, or whether a bond may be set.
Regardless of the crime, contacting your attorney at the first hint that you are under investigation can make all the difference in the outcome. Police without a warrant may also arrest people, (if they have sound reason to believe the individual committed the crime or they witnessed the crime being committed).
The first appearance after you are charged. This makes sure you are on notice of what the charges and maximum possible penalties are. People who appear without a lawyer are advised by the court of their rights to be represented. A bail bond is set by the court.
At this hearing you enter a plea of “guilty” or “not guilty”. Almost always you will plead not guilty and ask to have the opportunity to file motions to challenge the government’s evidence. The hearing is often held at the same time as the Initial Appearance (in misdemeanors) or after the preliminary hearing (in felonies) on a separate date.
This is the process where the government is constitutionally required to disclose to you all of the evidence that they intend to use to show you committed a crime. This can include police reports, medical records, chemical testing results, probation reports, photographs, diagrams, recordings of witness statements and viewing of physical evidence. You only have a right to see (and get copies of) these materials after you send a formal request to the prosecutor to present any and all material they have. They cannot hide evidence and then surprise the defense at trial. This applies to the defense as well. We must provide the prosecution with copies of certain types of evidence which we plan to present at trial.
The purpose of the preliminary hearing is for the judge to determine whether or not there is probable cause that a felony has been committed. Probable cause is a substantially lower burden of proof than at trial. Cases are rarely dismissed at this stage, sometimes the defense can use the preliminary hearing to find holes in the prosecution’s case and to lock in witness testimony. After the preliminary hearing, the District Attorney may add additional charges.
In the plea bargaining process, the defendant may be charged with a lesser charge, or a DA may agree to a lesser punishment for the same charge. Sometimes, the prosecution may decide to drop some counts, or even dismiss some charges outright. You do not have to accept a plea bargain.
Pre-trial motions are one of the most important tools available for criminal defense attorneys. Careful, informed, and thoroughly prepared pretrial motions can force the dismissal of charges, or put sufficient pressure on the prosecutor to change his or her position on the resolution of the case.
If you can’t settle a case through the plea bargaining process, or you are convinced of your innocence, then you have a right to a jury trial. All members of the jury must agree unanimously that you are guilty of each and every element of the offense beyond any reasonable doubt.
If there is no jury, the judge decides everything – both what is relevant and whether the defendant is guilty beyond any reasonable doubt. The defense and prosecution will present their respective arguments to the judge, in the same fashion as they would in the jury trial and during their presentation the judge may interrupt to ask questions, clarify issues or voice his concerns. At the end of the trial, the judge, usually after some deliberation, will issue a final verdict.
If found guilty, the defendant’s actual punishment is determined by the judge at the sentencing hearing. In drunk driving cases, the judge refers to sentencing matrix’s, which offer a range of penalties a defendant should serve. The judge is legally required to consider the severity of the offense, the character of the defendant and the need to protect the public. In felonies, the probation department often prepares a Pre Sentence Report which contains facts about the defendant and its recommendation to the judge on the appropriate sentence. Although the recommendation is not binding on the court, it usually weighs heavily. It is a good idea to respond by preparing a defense/independent/alternative pre-sentence report pointing our all the defendant’s good qualities, focusing on rehabilitative needs and recommending a more lenient sentence. This can often have a significant impact on the judges’ decision. A well presenting sentencing hearing may mean the difference between probation and prison.
Every probation violation will not automatically result in revocation. Probation, parole and extended supervision are similar in that all are “conditional” freedom and a probationee (or parolee) is allowed to live at home (or some other residence) so long as she or she does not violate the conditions of that probation, parole or extended supervision. Conditions of probation include rules imposed by the Wisconsin Circuit Court and special rules added by the probation or parole officer. If the conditions are violated, probation (or parole) or extended supervision are subject to revocation.
Cause For Revocation
Any violation of the condition set by the Wisconsin Circuit Court or the probation or parole officer can be cause for revocation
On Hold Without Bail
A probationee can be placed on “hold”. If a probationee is accused of violating the conditions of probation, the probation officer can place the probationee on “hold” (in jail without bail). While the probationee is on hold, the probation officer conducts an “investigation” into the alleged violation.
Legal Requirements of Revocation
Once probation is ordered, certain rules must legally be followed. First – “Alternatives to revocation” must be considered before revocation is pursued. The probation officer must prove two facts at a revocation hearing.
1) Alternatives to revocation were considered
2) Which alternatives to revocation were considered
Second – Probation cannot be revoked without a hearing unless the hearing is waived.
A revocation hearing is not a proceeding under the jurisdiction of the Wisconsin Circuit Courts, but rather, an administrative proceeding initiated by the Department of Health & Human Services, Bureau of Community Corrections. Corrections, and presided over by the Division of Hearings and Appeals and an Administrative Law Judge (ALJ). The burden of proof at a criminal trial is “beyond a reasonable doubt”; however, the burden of proof at a revocation hearing is “preponderance of the evidence” which means that the Administrative Law Judge must be at 51% sure that probation should be revoked.
There are many “alternatives to revocation” that a criminal defense attorney can raise, such as treatment by a sociologist or psychiatrist, counseling, medical treatments or group therapy at in patient and out patient treatment centers.
What can you do to help me with a Wisconsin criminal charge?
There are 3 basic avenues that any defense attorney must pursue to protect his client.
1. Try to get the charges to go away entirely, and get the case dismissed
2. Fight and try to win the case at trial
3. Negotiate for minimum sentence, one that will remove the risk of the most serious penalties if found guilty.
These different defense methods are not mutually exclusive, a good attorney may be pursuing all 3 outcomes at the same time to give the client the most and best options.
Option 1 involves analyzing the case and all the evidence to find a mistake the police may have made in the course of their investigation, and contesting probable cause at an initial appearance or preliminary hearing in the case of a felony.
Option 2 involves fighting the case all the way, and trying to convince a judge or jury that you are not guilty of one or more elements of the crime.
Option 3 is when you look for a reasonable plea for your client to accept. This involves more than simply being a tough and effective negotiator with the prosecutor, but also helping your client lay the groundwork for making a strong case for leniency. This can involve helping the client get drug treatment in a drug case, or working out creative solutions for restitution. Anything you can do to make the case that the defendant is working to turn his life around can be a huge help in getting a minimal sentence. And anytime an attorney can take the risk of a jail sentence off the table or minimize the same, that is a deal worth considering.
What is AODA?
It stands for Alcohol and Other Drug Abuse. The Wisconsin Association on Alcohol and Other Drug Abuse (WAAODA) is a helpful resource on drug and alcohol addition issues.
As a defense tactic, it often makes sense to enroll yourself in a treatment program, such as a drug possession case or a domestic violence case where alcohol was a factor. You may be required to undergo substance abuse treatment as a condition of a plea or after sentencing.
Danz Law Office represents cases in a range of legal matters, including:
Danz Law Office, LLC
108 West Court Street
Elkhorn, WI 53121
Drunk Driving, Criminal,Family Law
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