There is no doubt about it, raising a child—whether as a couple, a single parent, or a parent with very limited help—is a lot of work and can be difficult in the best of circumstances, let alone if you are facing criminal charges. Criminal charges can have far reaching consequences on many fronts, including whether or not you will be sentenced to a period of incarceration. We have many clients who state “but I can’t go to jail! What about my kids?” This is a real problem that many people face. A period of incarceration, no matter how brief, can be expensive, and in some cases, effect whether or not an individual will be able to maintain custody of their children.

It might be hard to hear, but having part of sole responsibility for raising your child is not something that will prevent you from being sentenced to jail or prison. The argument that you can’t afford it, or there is no one to watch your child/children, does not negate the fact that you committed a crime, and will be sentenced for it.

Be Realistic & Know Your Options

When a person is sentenced it is based on a several factors, and a judge can take your domestic or family situation into consideration when you are sentenced. There are a few different possible outcomes other than incarceration, however those depend on your criminal history, what charges you are being sentenced on, and case specific facts.

The first thing we will consider is the charges that you are currently facing, which correlates to the sentence you are likely to receive. For a minor charge, such as a low level misdemeanor, you may be able to avoid jail time. Being charged with a mid-to-high level felony, however, means you may be sentenced to prison time, and generally speaking it means you are less likely to receive a sentence that does not involve incarceration. Some charges carry a mandatory minimum. For example a five-year mandatory minimum would mean that a judge cannot sentence you to anything less than five years in prison. Obviously, if you are facing a severe charge, or a charge with a mandatory minimum, we need to be realistic in our expectations.

The next thing we can consider is your criminal history. An individual who has a clean record, or minimal criminal history, who is charged with a more serious crime may be able to minimize or even avoid incarceration altogether. This is in no way a guarantee, but it is part of a set of facts that can be used to your advantage in negotiations with the prosecutor and argued in your favor during your sentencing. One of the last things to consider is what your situation is overall. An individual who is a stay at home parent is in a different situation than a single parent. The availability of family and friends to help take care of the child/children is another factor that can be considered.

Making An Argument

A defense attorney can base part of their argument at sentencing on these factors. For lower level offenses, and offenses committed by first time offenders, detailing the situation can help to persuade a judge to be more lenient or consider other options aside from incarceration. What are the other options that a judge can sentence you to? Probation, GPS monitoring, Huber, amongst other things are possibilities. GPS monitoring or Huber both can take place during a jail sentence. Huber can allow you to have hours allotted for child care during the day, and thus you would be released for certain periods to help care for your child/children, but would have to return at specific times. GPS monitoring is essentially house arrest: you would be unable to leave your home expect for work, picking children up from school, pre-scheduled appointments, etc.

When everything is said and done, having children is not a valid reason to prevent someone from being incarcerated on criminal charges. When a situation like this does occur, however, it can sometimes be the deciding factor if a judge is on the fence. If you or someone that you know are currently facing criminal charges in Madison, Dane County, or elsewhere in Wisconsin, call our office for a free consolation.

When someone is charged with an OWI offense, one of the first obstacles is determining how many prior OWI-type offenses that individual has. While this may seem like task fit for a Sesame Street character, piecing together the complicated definitions of what constitutes a prior “offense” with the applicable time limits can often feel like advanced algebra. We at Nicholson & Gansner hope to offer some clarity on OWI “counting” to ensure that, if you are cited for operating a motor vehicle while intoxicated, your penalties are not increased for a prior offense that shouldn’t be held against you.

The first step in this process is trying to determine what type of prior “offenses” can be used to increase the penalties for a subsequent OWI. Aside form the obvious—a prior OWI conviction—a number of other infractions can be counted against you. Specifically, prior convictions or license suspensions for refusing to take a required test for intoxication, or administrative license suspensions or revocations from a different state that were the result of allegations of drunk or drugged driving are all “countable” offenses under Wisconsin law. Thus, in certain circumstances, if your license was administratively suspended based on preliminary test results indicating you were operating a motor vehicle with a prohibited amount of alcohol in your system, even if you weren’t ultimately convicted of the charge, the suspension could still count as a previous offense against you.

Once you determine the number of previous countable offenses, you must look at the period of time between those offenses. If you are being charged with a second offense, the previous offense must have occurred within the past 10 years. If the previous offense occurred more than 10 years before the date of the current offense, then the offense should be charged and prosecuted as an OWI—first offense, even though it is your second lifetime offense.

However, if you have two or more qualifying offenses, then the timing between the offenses does not matter. This is because, by state statute, for third and subsequent offenses, the number of priors is determined by counting the total number of lifetime prior offenses. The difference between the 10-year look-back period used for second offenses and the lifetime look-back period for third and subsequent offenses can lead to the bizarre results, such as an individual being convicted of two first offenses, and then a third offense, without ever being convicted of a second offense.

A final area where the time between previous offenses becomes important is in determining whether a fourth offense is charged as a felony or as a misdemeanor. By statute, if you have committed an offense within 5 years prior to the day of the current offense, then you can be charged with committing a felony fourth offense OWI, which is a class H felony. However, if you have not had a previous offense within 5 years of the new offense, then you will simply be charged with a misdemeanor fourth offense.

Ultimately, if you are charged with a second or subsequent OWI-offense, it is important to make sure that you are being prosecuted for the proper offense number. Given the complexity outlined above, make sure to contact an attorney who is experienced in handling OWI litigation if you find yourself charged with an OWI-related offense to make sure you are not facing penalties that are more severe than they should be.

Visiting a Loved One Who Is In Custody

Incarceration is always something that is difficult no matter how short or long the time is. It isn’t just hard on the person who is doing the time; it is also hard on the friends and family of that individual. Many questions that we get from clients, and the family and friends of our clients, relate to jail and prison visitation. Here is some general information about the process.

Jail

Jail is less stringent than prison, but there are still many rules that apply, especially when it comes to visitation. Different facilities have different rules, so it is best to contact the facility well before you want to visit in order to clarify and understand the procedures. That said, here are some general practices that tend to hold true.

You can not simply show up to a jail and visit an inmate. In most facilities, an inmate is required to fill out visitor forms, which will have to be approved, before someone can come and visit. This process will check to see if the inmate is allowed to have contact with you. If you have a restraining order, a no-contact order, or there are rules in place that would prevent contact when that person is on the street, you will likely be denied visitation access. Once you have been approved, there are certain hours that you will be allowed to visit. These hours vary by facility, but typically there are hours available during the morning, afternoon, and early evening. In larger facilities, what times and days may be set by an inmates name, to prevent overcrowding.

When you show up to the jail to visit an inmate, it is best to arrive early. You may have to go wait in line, or go through security checks, which can eat into the time you are allowed to see the inmate. What you wear is also going to be subject to inspection. Simply showing up to visit an inmate gives consent to search of your person and belongings, do not bring any contraband with you. Revealing clothing is generally not permitted, and is a valid reason in most jails to deny a scheduled visit. Another common issue that people are turned away for is gang, club, or set colors or insignia. This can include anything from street affiliations to formal organizations such as motorcycle clubs.

Finally, it is important to remember that when you are having a visit with an inmate, whether it is on the phone, through a video chat, or in person, your visit is being recorded. We advise that you do not talk about specific details of their cases, as any and all things said during those visits can be used against an inmate in their current case as well as lead to future charging in other cases.

Prison

Visiting an inmate in prison can be an intimidating process. Often times you are required to enter into the facility, and continue deeper into it, which can be overwhelming to those not acclimated to the process. As with visiting an inmate in jail, you are not able to simply show up to a prison to see an inmate; you will generally need to fill out a visitor form ahead of time and receive approval to visit an inmate. The duration and times that an inmate can have visitors is generally more specific and strict than a jail facility, and thus you should coordinate a visit in advance to make sure that you are able to see the inmate.

The process of visitation in a prison is much more intensive than in jail. There is almost always a mandatory security check, which means going through metal detectors, searches of your belongings, and pat-down checks. Again, do not bring any contraband with you for these visits as not only would you likely be turned away, but you also could face criminal charges of your own for brining them onto the premises. Women should know that often times bras with underwire are not allowed into the facility, and this may trigger additional scrutiny in physical pat-downs. As mentioned above in the jail section, all interaction with an inmate is recorded, and you should refrain from discussing peculiars of the inmate’s case, especially as these conversations can lead to additional criminal charges, or effect the chances of an appeal.

If you have questions about visiting a loved one in custody, contact our office to discuss it.

The Term “Domestic”

Domestic violence. The phrase conjures up strong images for most people. The term, commonly abbreviated to DV, has become prevalent in the media. In Wisconsin, we have a fairly specific, but quite broad, definition of domestic, and it encompasses any two people who reside together, including roommates, parents, siblings, spouses and domestic partners. Domestic disturbances here also trigger mandatory arrest laws, which require police to remove one party from the home at the time of initial police contact. This is done with the hope that it will prevent the situation from escalating, to help encourage reporting of DV, as well as provide resources to victims. Having an offense carry the of the term “domestic” with it has far reaching legal implications. While domestic violence is frequently a topic in the community, terms like “domestic enhancer” and “domestic incident” have received less attention, and when they arise in many people’s cases, they are unsure of the meaning— both in definition, and what consequences they may have on the results of a case.

A “Domestic Incident”

A domestic incident can cover a wide variety of situations, as well as lead to a wide variety of charges, including battery, disorderly conduct, intimidation of a victim, and many more. In it’s most basic sense, a domestic incident is an occurrence between two or more individuals who are either in a relationship together, or who reside together. In the eyes of the law, domestic violence can occur between two roommates, just as easy as it can between a boyfriend and girlfriend. Because of this, the term domestic incident would cover any individuals who are living or staying together, whether that be in a house, or an apartment. “Domestic Incident” has evolved from its original days, when the term was used to specifically describe an act of violence committed by one person in the relationship against another. In the same way the terminology has advanced to include different types of relationships, it also has advanced in terms of conduct. Obviously an act of violence would still fall under this category, but also included could be acts of theft, prevention from calling the police, or even screaming matches between two individuals. With few exceptions, the term domestic incident now refers to almost any type of confrontation between two people who are living together.

Domestic Enhancers

When someone is charged with a crime, there is a possibility that that crime will also have an enhancer with it. An enhancer serves to denote certain types of crimes, and also can increase the maximum sentence, or conditions of a charge. For example, someone that commits a robbery of a gas station with a pistol, will typically have a charge of robbery with a weapon enhancer. Similarly, charges such as battery or disorderly conduct, can have domestic enhancers added to them. The enhancers can increase the amount of exposure one may have at sentencing, but in some cases serve to denote a particular set of circumstances. For example, a disorderly conduct is a type of catch-all charge in Wisconsin. It has a vague definition, which essentially boils down to something like inappropriate behavior in public or private. Because a conviction of a charge does not denote the factual circumstances, there is no indication if it was urinating in an alley or screaming at an officer, an enhancer often serves as an indicator of the type of defense. If someone has multiple Disorderly Conducts, but two have domestic enhancers, this would serve to demonstrate a person may have frequent domestic related issues.

What Does This Mean For Me?

Domestic crimes or enhancers can affect your life. In some circumstances you may face a stigma, being categorized as a person who commits acts of violence, when you simply had an argument get to loud. A common concern is that a domestic enhancer on a misdemeanor can cause the offender to lose his or her right to possess a firearm. Fortunately, there are ways to attempt to minimize these consequences, including having criminal complaints reissued to remove a domestic enhancer and/or to negotiate a plea to charges that do not include domestic elements. If you or someone you know is facing domestic charges, or charges with domestic enhancers, contact a Wisconsin Criminal Defense Attorney (preferably at our office) for a free consultation

Adrian Peterson’s recent indictment for child abuse has sparked national controversy regarding the use of physical discipline, and has raised the legitimate question of when—if ever—physical discipline is appropriate? The opinions have been pouring in from far and wide, ranging from Sean Hannity’s defense of using a belt for spanking, to Chris Carter’s impassioned plea against any form of physical discipline. Just as there appears to be no clear-cut line between discipline and child abuse in the court of public opinion, there is no clear distinction between the two in the court of law.

It is a felony under Wisconsin law for anyone to cause bodily harm to a child through either intentional or reckless conduct. However, in spite of this general rule, a person responsible for a child’s welfare has the privilege to reasonably discipline a child, which could in certain instances involve acts of physical discipline. Specifically, “reasonable discipline may involve only such force as a reasonable person believes is necessary. It is never reasonable discipline to use force which is intended to cause great bodily harm or death or creates an unreasonable risk of great bodily harm or death.”

While this helps to focus the inquiry, it doesn’t answer the fundamental question: what sort of discipline is “reasonable?” Is spanking a child with a bare hand reasonable? What about with a belt? Or a switch? Is it the form of discipline that makes it unreasonable, or does it become unreasonable when it begins to leave bruises or marks?

If the national conversation surrounding this matter tells us anything, it is that there is no universal definition of “reasonable,” when it comes to discipline. Instead, each case is dependent on the facts specific to that case, including the age of the child, the reason for the discipline, and the method and manner in which it was implemented. Ultimately, a jury will make a determination of whether or not the conduct in question was “reasonable discipline,” or instead crossed the line to child abuse. Because of the uncertain nature of these types of charges, in the unfortunate event that you are concerned you may face allegations of child abuse, it is important that you contact an experienced criminal defense attorney immediately.

When a person is charged with one or more felonies in Wisconsin, he is entitled by statute to a proceeding called a preliminary hearing or preliminary examination (often referred to as a “prelim”). People often ask us what happens at a preliminary hearing or what the purpose of a preliminary hearing is.

When Does It Happen?

A prelim takes place early on in a felony case. If a defendant is in custody, he has a right to have the hearing within ten days of his initial appearance, which is typically the very first appearance a defendant has in front of a judge. If a defendant is out of custody, he has a right to have it within 20 days of the initial appearance. A defendant can “waive time limits,” meaning give up his right to have the preliminary hearing within ten or twenty days. It is most common for defendants in custody not to waive time limits, while it is most common for those released from jail to waive time limits

What Is It?

A preliminary hearing is not a “mini trial.” Its purpose is not to determine guilt or innocence.

Its purpose is to determine whether or not a felony case will be allowed to proceed on towards trial. In order for that to happen, the government must show a rather small amount of evidence in support of at least one of the charges. Specifically, the government must demonstrate to a judge’s satisfaction that there is probable cause to believe that a felony has been committed by the defendant. Put slightly differently, the government must show that a felony was probably committed and that the defendant probably committed it. If the government can produce a witness who can identify the defendant as the person who the witness testifies engaged in conduct that constitutes a felony, and testifies that the conduct took place in the county where the prelim is being held, the government will almost certainly meet its burden. If the government meets its burden at the prelim, the case is “bound over” for trial.

How Does It Work?

The rather low burden of probable cause was made even easier for the government to meet in 2011, when the state legislature changed the law regarding the rules of evidence at prelims. At trial, hearsay is generally not admissible. Before 2011, hearsay was also generally inadmissible at prelim. But with the change in law, hearsay is admissible at prelim, and a court may base its finding of probable cause entirely or in part on hearsay.

What does that mean? In practical terms, it means that the government no longer has to call the victim of the alleged crime to testify at prelim. It also means that the government can often meet its burden and get the case bound over for trial solely by calling a law enforcement offer to testify. The officer is allowed to testify about what the victim told police (which is hearsay) or about what evidence was collected by the police (which, if it was not collected specifically by the testifying officer would also be hearsay). And the court can find probable cause and bind the case over entirely on hearsay testimony by the police officer or detective. The prosecutor can also submit the criminal complaint (the charging document that outlines the initial charges against a defendant), the contents of which are hearsay, as an exhibit.

What Can My Lawyer And I Do At Prelim?

A defense attorney is able to cross examine the officer. But cross examining a witness about hearsay—about things other people said happened rather than what the officer observed him-or-herself, about evidence somebody else collected—is often fruitless. The officer is simply going to repeat what someone else said or did; the officer doesn’t know any more or any less than what he or she was told by someone else.

Defendants have a right to call witnesses of their own at prelim, but in most cases this is not done. In theory, a defendant could testify at his or her own prelim, but this is never done. Why? Because, under Wisconsin law, credibility is not to be considered by the court at the preliminary hearing. If witnesses give differing accounts of what happened, the State is entitled to the benefit of competing accounts or inferences. If a witness for the State says the defendant committed a felony, and a witness for the defense says the defendant did not commit a felony, the judge is required to rule in favor of the State and bind the case over for trial. Determining which witness was telling the truth, or providing the more accurate account, would require making a credibility determination. Credibility is very much at issue once you get to trial, but not at a preliminary hearing.

The reasoning behind this is, again, because the purpose of a preliminary hearing is only to determine if there is some reason to believe that a felony was committed, some reason to believe that a specific person committed it, and that the State has charged that person. It is essentially to ensure that the State does not just snatch people off the street and hold them in jail without any reason at all. Whether the evidence and testimony produced at preliminary hearing is strong is a question for another day.

What Happens Next?

After the preliminary hearing, after a defendant is bound over for trial, a defendant is entitled to an arraignment. At the arraignment, the State files a document called an information. Like the criminal complaint, the information contains the charges in the case, but unlike the criminal complaint it does not contain any factual or probable cause portion. The State is entitled to add or subtract or modify the charges from the complaint to the information. At the arraignment, the court will ensure that the defendant is aware of what the formal charges are, and the defendant will enter a not-guilty plea. The court will then set the case for further proceedings.

There are obviously a lot of rules associated with a preliminary hearing. If you have been charged with a felony, you are entitled to have an attorney and you absolutely need one. Your attorney can discuss with you the benefits to having a prelim and the potential benefits of waiving your right to a prelim.

Truth in Sentencing

nickgansner —  August 27, 2014 — Leave a comment

Sentencing can be one of the more confusing aspects of a criminal case, especially because sentencing looks much different today than it did in the past. Today we have bifurcated prison sentences, meaning sentences that are divided into two parts: initial confinement and extended supervision. Some charges have mandatory minimums. If you are convicted of one of these charges, there is a statutory minimum time period for which you must be incarcerated. That means that no matter the circumstances, a judge would not be able to sentence you to a lower amount of time in prison than the minimum. The current sentencing system in Wisconsin was enacted in 1998 with the passage of Act 238. Act 238 enacted a new sentencing structure known as truth in sentencing.

What Is It?

Truth in sentencing is a sentencing system that has eliminated parole. Prior to 1998 in Wisconsin, a prison inmate could become eligible for parole, which would lead to a parole hearing, during which an inmate could argue to be released early from prison. This meant that someone who received a ten year sentence may have been able to be released from prison after only a few years, although they would then be out on parole for the remainder of their sentence and still under supervision. While there was not necessarily a guaranteed amount of time you would have to serve, many people could receive parole after having completed fifty percent of their sentence. Truth in sentencing is referred to as “time earned, time served” because if you receive a sentence you will have to serve the full amount of time of the initial confinement portion of your sentence in prison. For example, if you are sentenced to ten years initial confinement, you should expect to remain in custody for the entire time. Under truth in sentencing, all prison sentences must be bifurcated. Thus, a prison sentence might be a total of fifteen years, bifurcated as ten years of initial confinement and five years of extended supervision. Extended supervision is similar to parole inasmuch as an inmate is released from prison, is returned to the community, but is supervised by an agent of the Department of Corrections for the duration of the period of extended supervision.

Is There Any Way To Get Out Early?

Under truth in sentencing there are very few ways possibilities for early release. Prison inmates can petition for a sentence adjustment after serving either 75% or 85% of their sentence, depending on what they were convicted of. There are a few grounds on which an inmate can petition for a sentence adjustment, but the most common is probably positive behavior and progress in treatment while incarcerated. Not having any conduct violations, making progress in rehabilitation programs (like alcohol or drug treatment, for example), and progress in educational or vocational programs while in prison can form the basis for a petition for sentence adjustment. If a court grants a petition for sentence modification and releases an inmate early, the amount of time the initial confinement portion of the sentence is reduced is then added on to the extended supervision portion of the sentence. So, using the example above, a person sentenced to a total of fifteen years, bifurcated as ten years initial confinement and five years of extended supervision would probably be eligible to petition for a sentence adjustment after serving eight and a half years of the ten year sentence (depending on what level felony or felonies he was convicted of). If the court granted a sentence modification and released the person one year early, that extra year would be added on to the five year term of extended supervision, meaning the person would serve six years on extended supervision.

A person sentenced to prison may also be eligible for the substance abuse program or the challenge incarceration program. Both programs seek to address substance abuse issues. To be eligible for either of these programs, the sentencing judge must make a finding at the time of sentencing that a defendant is eligible. A defendant is not eligible if he has been convicted of any crime under chapter 940 of the Wisconsin statutes, or of many crimes in chapter 948. For either program, the Department of Corrections must determine that the inmate has a substance abuse problem. For the challenge incarceration program, the inmate must be under 40 years old. If an inmate volunteers for either of these programs, is eligible, is selected, and completes the program, the remainder of the inmate’s initial confinement portion is converted to extended supervision, such that the total length of the bifurcated sentence is unchanged.

Modifying a Sentence

We receive a large number of calls from individuals who are incarcerated who would like to modify their sentences. In some cases they would like a reduced number of years while others would like to become eligible for programs while in custody. Unfortunately, it is both difficult and extremely unlikely to have a sentenced modified down the road. Because of this, it is important to have an aggressive, and hard working attorney handle your case initially, as they are more likely to be able to secure you a more beneficial sentence. If you are currently awaiting sentencing, or are facing criminal charges, call our office for a consultation and let us show you what we can do for you.