Kuehn and Flitcroft

​​Criminal, divorce and family law attorneys

Drunk Driving

Overview of Drunk Driving In Wisconsin


In order to be proven guilty of drunk driving, the State or Municipality would need to prove that you either : Operated a motor vehicle on a public highway while under the influence of an intoxicant or operated a motor vehicle on a public highway with a prohibited alcohol concentration (.08 or higher) or with a restricted controlled substance in your blood stream (without a valid prescription). Each of the elements of OUI/OWI/DWI is important, as the State must prove each of them in order to obtain a conviction. The elements are further discussed as follows:

Operation of a Motor Vehicle

​In order to be considered operating, you need to physically manipulate the controls that would cause the car to go into motion or, in other words, the ability to move the car, or other motorized vehicle, by causing it to go into motion.  Often this is an issue that needs to be aggressively litigated because the State must prove every element.

Public Highway

A public highway is not restricted to the interstate or county highway, but is defined as any thoroughfare that is open to the public.  Examples include parking lots, frozen lakes, private roads available for use for more than one family, as well as the average street.  What is not considered public is your private driveway or a roadway on solely owned property. 

Under the Influence of an Intoxicant

​This is when a person has less than a steady hand to safely operate a motor vehicle.  In order to accomplish this Standardized Field Sobriety Tests are administered, as well as a Portable Breath Test , and ultimately either a breathalyzer or blood sample. Often this is the most contested issue in the case and one open to a lot of litigation.

Prohibited Alcohol Concentration ("PAC")

​In many cases the State does not need to prove that one is under the influence of an intoxicant if their blood/alcohol content ("BAC") is higher then .08 (.02 in some circumstances). This is because as a matter of public policy the legislature has decided that anything over a .08 BAC is just too high. The good news is the State's expert can NEVER testify as to what a client's BAC was at the time he/she was driving because the tests are often given over an hour later, and alcohol may have been absorbed into the person's system prior to that happening, artificially raising the BAC.  An experienced attorney and the right expert can help present this defense, and we are just those lawyers.

Restricted Controlled Substance

​Much like the PAC, the Legislature has determined that specific metabolites (how a drug breaks down in the human body) in a person's blood will expose them to liability under our drunk driving laws.  It is important to know which metabolites are in your blood before the State can prosecute a person.  For example, marijuana breaks down into over 100 different metabolites.   In Wisconsin it is Delta-9-THC that the State needs to prove is in your blood.

Felony DUI/OUI/OWI Charges

Beginning July 1, 2010, anyone charged in a five-year period with a fourth drunk driving, under Wis. Stat 346.63,  may be charged with felony OUI (operating under the influence). If your number of prior convictions is less than four, it is a misdemeanor.  Any OUI offense that has resulted in a significant injury or death will also be charged as a felony. OUI/ OWI/DUI causing injury or death is a felony charge that could result in a significant period of imprisonment. If you are facing felony drunk driving charges in Wisconsin, do not put your freedom in jeopardy by retaining the wrong attorney.If you are facing felony OUI/ OWI/DUI charges, your freedom is at stake. A felony drunk driving conviction could lead to a significant period of incarceration in Prison, probation, court ordered alcohol treatment, driver's license revocation, and other adverse penalties.

​Protect your rights by retaining an experienced OWI/OUI/DUI defense lawyer at Kuehn & Flitcroft. Any drunk driving charge is a serious matter, but an OUI/OWI/DUI causing injury or death is a felony charge that could result in a significant period of imprisonment. You need an experienced criminal defense attorney who knows the way around the courtroom, who knows how prosecutors think, and who knows the courts response to these cases. In southeastern Wisconsin, you can find the experienced, effective, and creative representation you require at Kuehn & Flitcroft.

Protect Your Rights

If retained to handle your case, we will ask key questions of the prosecution, and actively investigate your claims involving the following issues:

Did the police have cause to stop your vehicle?
Did the police properly administer your Breathalyzer test?
Did the police properly conduct the standardized field sobriety tests?
Did the police conduct non-standard field sobriety tests?
Did the officer read you your Miranda rights? 
Did the officer violate your constitutional rights?


​The lawyers at Kuehn & Flitcroft will carefully dissect the prosecution's case to build a strong defense on your behalf. We look at every case as if it set for trial, to guarantee that we do the best job for you, our client.