What should I do if I’m accused of a sex crime in Wisconsin?

If you've ever been pulled over for a OWI / DUI or drunk driving in Wisconsin or have worried about what to do if you are, you've probably wondered what rights you have. The Fourth Amendment to the U.S. Constitution is the foundation of those rights when it comes to police encounters, including OWI or DUI stops in Wisconsin. 

Here's a plain-language breakdown of how it works.

Hiring an attorney right away allows the attorney to begin investigating at the first possible opportunity so that can provide you with the best advice and information and influence the direction of your case. The state often starts building its case from the moment an accusation is made. Your defense should start at the same time.

In the days immediately following an accusation several things can happen:

1. Damaging statements are made. Police are trained in interrogation and Wisconsin law does not require them to be truthful during questioning. Anything you say — even an attempt to explain yourself — can be used against you.

2. Evidence disappears. Witnesses’ memories fade, digital records can be deleted, and surveillance footage gets overwritten. An attorney can help you by acting quickly to identify and preserve evidence that could be critical to your defense.

3. Charges are filed. In some cases, defense attorneys can communicate with prosecutors before formal charges are filed, which may influence what charges are brought or whether charges are filed at all.

The presumption of innocence applies to all criminal charges, including accusations of sex crimes. This means that if your case goes to trial, the prosecution bears the burden of proving every element of the offense beyond a reasonable doubt. You are not required to prove anything.

This is important in sex offenses cases of sexual assault, sexual abuse and rape, where the state’s case often relies on one person’s word against another’s with little or no physical evidence. A skilled defense attorney will hold the prosecution to its burden and ensure that you receive the benefit of the presumption of innocence.

A second prosecution may be allowed under certain circumstances such as when a mistrial is declared that is not caused by the prosecutor; when the case has been appealed and remanded for a new trial; and when the subsequent charge is not the “same offense.”

Whether a subsequent charge is the “same offense” or not is often the source of litigation. Over the last several decades, the definition of “same offense” has become much harder to meet. There are two primary reasons.  

The first is the 1932 U.S. Supreme Court decision in Blockburger v. United States. This case redefined “same offense” from offenses arising from a common set of facts to a strict elements test. Even if two criminal offenses have nearly all the same facts in common, if one additional fact that must be proven on one charge differs from the other, then they are considered separate offenses, and an acquittal or conviction on one does not prevent a second prosecution on the other. There are exceptions to this, such as when one offense is a lesser included of another. For example, you cannot be convicted of both possession of marijuana and delivery of marijuana from the same incident, since you cannot deliver marijuana without possessing it. Lesser included offenses can also be defined by state statute. All homicides are statutorily deemed as lesser included offenses of each other, so you can’t be convicted of more than one homicide charge for the death of one person.  

The second is that at the time of the Blockburger decision, the impact of the new elements tests was much less pronounced because the number of criminal offenses on the books was far less. However, there are now exponentially more crimes. It’s common to see a single incident that used to be charged as a single robbery, for example, now charged as half-a-dozen offenses. Instead of a single robbery count, there may be firearm related charges; battery; endangering safety; false imprisonment; disorderly conduct, and so on. Even if you were acquitted of the robbery, the State may not be prevented from charging you again with some of these other offenses in a subsequent prosecution. A well-known example is the 1994 case of Chris Jacobs, who was acquitted of murdering five members of the Kunz family. After the verdict, the State filed new charges against Jacobs for kidnapping and falsely imprisoning one of the five victims, as there was evidence one of the victims had been moved. Jacob’s double jeopardy argument was rejected because at least one of the facts that had to be proven for kidnapping differed from those for homicide.  

Double jeopardy issues become even more complicated when dealing with on-going offenses such as embezzling, racketeering, and conspiracies.

This is a question that comes up often. In Wisconsin, field sobriety tests are not mandatory. There is no legal penalty in Wisconsin for declining to perform them. That said, refusing to do field sobriety tests may factor into an officer's decision to make an arrest, and it may come up later in legal proceedings.

Officers sometimes use a handheld breathalyzer called a Preliminary Breath Test (PBT) at the roadside. In Wisconsin, the PBT result itself is generally not admissible as evidence of guilt at trial, but it can be used to support probable cause for an arrest. There is no penalty for refusing a PBT, although there can be a penalty for refusing a breath or blood test after police have made an arrest.

If you or someone you care about has been accused of a sex crime in Wisconsin, the single most important step is speaking with an experienced criminal defense attorney as soon as possible. Obtaining experienced legal counsel from the beginning gives you the best possible chance of protecting your future. 

Nelson Defense Group is here to start building your defense. You can reach our office at 715.386.2694.

Written by Aaron Nelson, Attorney at Nelson Defense Group