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Main Defenses to DUIs and DWIs

DUIs and DWIs can offer severe and expensive penalties, especially if you’re a repeat offender. In Wisconsin, charges can even vary across the state. There are ways to defend you against a DUI or DWI charge; defenses relating to the arrest, affirmative defenses, and common defenses are a few categories of options. Affirmative defenses exist in rare cases, while it’s more common to defend against the officer’s observations. It’s still advised to obtain a criminal defense attorney, as they will have the knowledge and experience of cases similar to yours.

Defenses Related to Arrest

No Probable Cause to Arrest

If the officer did not have a probable cause to stop your vehicle, detain or arrest you specifically for drunk driving, then it’s possible you may keep evidence obtained during arrest from being disclosed at the trial. Probable cause is sufficient reason based upon known facts to believe a crime has been committed. If an officer has probable cause, items related to a crime may be used as evidence.

If you believe you were stopped based upon race and ethnicity, you can challenge the arrest

No Miranda Warnings

If arrested, officers must give you Miranda Warnings as part of the process. If they don’t, or recites them incorrectly, certain evidence may be excluded at the trial.

Introduce Witnesses

Like many cases, you may bring witnesses to court who saw things differently. Witnesses may testify that you did not drink anything before you got in the car, appeared to be sober, or violated a traffic law through other means of distraction, not because you were under the influence.

Valid Explanations for Appearance and Behavior

It is possible to counter the conclusion that you were drunk by offering effective explanations for how you looked or acted. Various reasons could be:

  • Bloodshot eyes caused by allergies, contacts, or no sleep
  • Physical impairments caused you to do poorly on field sobriety tests, or
  • Lack of sleep or medications caused your speech to slur.

Affirmative Defenses to DUI/DWI Charges

As mentioned prior, these types of defenses usually won’t be of use for a majority of DUI or DWI charges. These include:

  • Duress: This is when the defendant drives in order to avoid serious injury or death, usually through force.
  • Entrapment: An officer forces or traps the defendant into driving while intoxicated. You must also prove that if entrapment did not happen, you would not have otherwise driven while under the influence.
  • Mistake of Fact: This defense is when the defendant honestly believes they were not intoxicated; they could otherwise have had a prescription medication wear off.
  • Involuntary Intoxication: This is when the defendant ingested alcohol without their knowledge, as if someone has spiked their beverage.

Common Defenses

Common defenses for DUI and DWIs include possibility of improper administration or inaccurate results of the field sobriety test, portable and standard breathalyzer test, and the blood test. There could have been overruling factors of the breathalyzer test such as indigestion or nausea. Rising blood alcohol concentration is another defense, meaning the BAC was below the legal limit while they were driving, but rose between time of traffic stop and breathalyzer test.


At Hart Law Office, we provide aggressive representation for those accused of criminal charges. We have the knowledge and skill necessary to advocate for reduction or dismissal of your charges. Our criminal defense attorneys take a proactive approach to case management, building a defense strong enough to withstand rigorous cross-examination.

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