Litigating the Preliminary Hearing

Litigating the Preliminary Hearing

Recently, I represented a client in Wisconsin. The State charged him with OWI in one county. The court in that county required absolute sobriety of my client as a bond condition. A few months later, law enforcement in another county arrested my client for allegedly consuming alcohol.

I joined the case in time for the Preliminary Hearing. For those who don’t know, Wisconsin guarantees defendants charged with felonies a Preliminary Hearing where the State must prove the existence of probable cause. During cross examination, I asked the officer whether he took a test to measure my clients blood alcohol content. He didn’t. I asked the officer whether he attempted to secure a warrant to compel my client to take a chemical test for the purpose of measuring his blood alcohol content. He didn’t. Finally, I asked the officer whether he knew my client’s blood alcohol content at any time before or after the arrest. He didn’t.

The judge excused the officer from the stand and requested the attorneys approach for a bench conference. Upon reaching the bench, the judge looked at the assistant district attorney and asked something to the effect of, “Are you dismissing this case now or later?”

This leads me to the point of my post: litigating the Preliminary Hearing. Admittedly, my cross-examination questions identified evidentiary issues and not probable cause concerns. However, my strategy to highlight the State’s weak case caused the judge to pressure the assistant district attorney to dismiss.

In my opinion, the job of defense attorneys is to protect the constitutional and statutory rights of people accused of committing crimes. The only way to effectively carry out that duty is to compel the State to meet its burden every step of the way, especially during the Preliminary Hearing.