Andrew Mishlove, Esq.
Milwaukee, Wisconsin
(414)355-0006, 24 Hours

Table of Contents


Factor One: Did The Police Follow The Rules?
Factor Two: The Story of Your Day
Factor Three: The Driving
Factor Four: Your Behavior
Factor Five: The Chemical Test
Factor Six: You!



For over twenty-two years, I have been privileged to practice criminal law. During that period of time I have worked hard to gain a good reputation, and the respect of prosecutors judges and other lawyers. I have received honors and accolades.

I've won a lot of cases... a lot of drunk driving cases. In this little primer I'll show you my winning strategies

This book is not meant to provide you with legal advice. Nor is it meant to be a do-it-yourself manual on how to handle a drunk driving case. This is a manual for the client, the person charged with drunk driving, not for the person who wants to be his own lawyer.

You will need a lawyer, and this book will help you to choose one.

Finally, this book contains no technical information on drunk driving law or chemical test technology. Drunk driving law and procedure is different in every state. The law and technology of drunk driving prosecution, like everything else around us, is changing very rapidly. This book is an aid to obtaining and understanding good legal advice, but any specific questions must be directed to your lawyer. This little book contains general principles of analysis and defense of the drunk driving case, for the layperson. I hope that you will find it beneficial.

Feel free to contact me for more information, or an online case evaluation. And, please don't drink and drive



America is a land of extreme contradictions: rich and poor, the freest with the most prisoners, and the most committed to liberty with some of the most repressive attitudes.

We certainly live in a very dangerous society. Handguns are one of the leading causes of death among young men.

People are afraid, and politicians prey on that fear. Legislation has been proposed in my state to legalize police highway checkpoints, already legal in forty states. HIGHWAY CHECKPOINTS!! Politicians always look for easy answers; but, they are often unwilling to make hard decisions to protect us.

There is no question but that one of the great sources of danger in our society is the automobile. More Americans are killed each year in car accidents than Americans died in the War in Vietnam. Most fatal accidents involve alcohol. But despite the vast war on drunken drivers, highway safety has not been dramatically improved. Politicians will always take the easy steps of increasing penalties and restricting individual liberty, rather than taking the hard steps of limiting the proliferation and legal immunity of taverns, and funding rehabilitative programs. The society that glorifies alcohol finds it easiest to deal with the damage by imprisoning the drinker. If the present rate of increase continues, within this century the majority of the population of the USA will be in prison.

When the constitutional liberty of a single one of us is trampled in the name of public safety, we all suffer from a loss of freedom. I do not support drinking and driving. It is a reprehensible evil, just as is murder. But I object to the suspension of human rights that has occurred in the name of the unsuccessful war on driving while intoxicated.

In my state, which is festooned with saloons, a simple dram shop law (requiring tavern keepers to accept their responsibility for pushing alcohol on their drunken patrons) would do more than all the jail cells and highway checkpoints combined. But the legislature lacks the spine to stand up to the special interests.

This little handbook on drunk driving is, therefore, intended to be one man's statement in support of the right to be left alone, to be free of unreasonable searches, to a presumption of innocence, to a fair trial, a fair verdict and, yes, if you deserve it, a fair punishment.



If you've been arrested for drunk driving, especially if it's happened more than once, it probably means that you had an alcoholic beverage and then drove a car. That is a terrible error in judgment. Whether or not you believe that you need it, GET HELP!!

I'm insisting on this even if you are innocent of drunken driving. I don't care if you were stone cold sober, its stupid and dangerous to drink and drive. It shows a lack of knowledge and a lack of judgment. You could kill or maim yourself or do the same to someone's son, daughter, mother or father.

Stop and consider the consequences of a drunk driving arrest, which is inconvenient and expensive even if you win the case. Then, consider the price of a taxicab. It's a no-brainer. If God wanted you to drink and drive he wouldn't have invented the taxicab.

You also need to take an honest look in the mirror and ask yourself whether you have a drinking problem. Whether or not you have a drinking problem, you need to get help with your understanding of the problem of alcoholism. Go to A.A. meetings. You may or may not be an alcoholic, but everyone can benefit from the advice and insights available at a twelve-step group.

So, even if you don't believe that you need it, get help! Use this challenge as an opportunity to improve your life.


If you've been arrested for drunk driving, don't even think about proceeding without a lawyer. A person who represents himself or herself in court has a fool for a client.

You need a good lawyer, even if you're guilty.



Finally, the help of a good lawyer is critical in limiting the damage that an OWI case can have on your family, your life and your livelihood. A good lawyer will direct you to the help and counseling that you may need to rebuild and restore your life after the damage of alcohol and an OWI case. Of course a good lawyer can minimize the penalties such as jail and revocation.

There are various different kinds of lawyers out there, and you will need to know how to choose. In general, you will find the following:

Public defenders,
Discount lawyers,
General practitioners
Expensive criminal and owi lawyers
Extremely expensive criminal and owi lawyers
Avoid the discount lawyer. You will get only what you pay for, and that won't be much. Discount lawyers make their money by a handling high volume of cases or by maintaining unreasonably low office overhead (no secretary, etc). These lawyers are not skilled in analyzing and defending cases. Rather, they are skilled in quickly disposing of cases by guilty plea, to maintain their profit margin. Be skeptical of any lawyer who charges a retainer less than $1500.00 on a first offense, and $2000.00 on a second offense. Often, if it is a first offense, such a lawyer will do nothing more than preside over a guilty plea, something that you can do yourself. If you want to fight your case, make sure that you get a lawyer that has a proven record of winning drunk driving cases.




It is wise to choose a reasonably priced drunk driving defense specialist (still expensive compared to a general practitioner). Look for a lawyer that focuses on drunk driving cases, not a lawyer that handles all types of criminal cases. These lawyers will not handle non-litigation matters, such as wills, probate, real estate, incorporation, etc. These lawyers ought to have extensive experience in OWI law, and understand the special complexities of a drunk driving case. In fact, these lawyers will usually be far more experienced in OWI cases than the ultra-high priced pre-eminent criminal lawyers. These lawyers may charge retainers in the $5000.00 to $7500. 00 range, depending on the severity of the offense, with additional fees for trial. These lawyers should also be active and recognized in local and national criminal defense organizations such as their state bar and NACDL. Again, get a lawyer who has extensive experience in the trial by jury of drunk driving cases.

If you are going to fight your case, always get a lawyer who uses the latest courtroom technology. Digital photos, digital videos and PowerPoint presentations are a powerful winning courtroom technique.

It is very wise to get a lawyer who is active in the National College for DUI Defense.

Get the best lawyer you can afford, not the cheapest one you can find. If you can't afford a qualified lawyer, a public defender is a far better choice than a discount lawyer or a general practitioner.

You should be able to schedule a free initial consultation, where the lawyer should spend between one-half hour and one hour with you discussing your case. The discussion should include a recitation by you and brief analysis by the lawyer of the following issues (although not necessarily stated in this order or format): Or you may start with the kind of online case evaluation offered at my website.



Most people, including some lawyers who should know better, believe that if you are stopped for drunk driving and fail a breath or blood test, that you don't have a chance to win. Certainly, drunk driving cases are difficult to win. In my twenty-two years as a trial lawyer I have fought and won many of them (and lost a few, too), including cases with very high blood or breath test results. Winning a drunk driving case requires a careful investigation of all of the facts, not just the facts that the police have reported. In order to analyze a case, I have developed what I call The Six Key Factors in a drunk driving case. These are the factors that I consider in fighting a drunk driving case in the only way that a drunk driving case can be effectively fought: the jury trial.

These factors cover the actual facts, not just the facts in the police reports. When a policeman makes a drunk driving (or any) arrest, he is required to fill out various reports detailing his observations. In drunk driving cases these forms may be fill-in-the-blank, or they may be in the form of a narrative. In almost all cases, the officers focus a few facts and ignore the rest. For example, they may note that you stumbled in the walk and turn test, but they will fail to mention that you had no other difficulties in your balance. So, winning a drunk driving case requires a careful review of The Six Factors.


Factor One: Did The Police Follow The Rules?

Whether or not you are guilty may be one of the least important factors in your case. That's because of the exclusionary rule, a rule of law designed to protect the most important and precious of our civil liberties: the right to be free from unreasonable stops, seizure, search and arrest. In a free society the police must operate under strict rules that prevent them from stopping and arresting you without a proper legal basis. Too often, the police act on a mere hunch or suspicion, without adequate evidence. When that happens, the evidence they get as a result of their unlawful behavior may not be used in court, even if it shows that you are guilty.

So, the first thing a good lawyer will do is a careful analysis of all of the facts that went into the police officer's decision to stop, question, test and arrest you. A good lawyer will always take any opportunity to challenge the legality of the police decision to pull you over, make you do field sobriety tests, make you take a preliminary breath test, arrest you or make you take a chemical test. Do not assume that just because you "flunked" a blood or breath test, that the test result can be used against you; because, a good lawyer may be able to keep it out.

Just as the defense of a drunk driving case requires a lawyer who is specially trained and experienced, so does the investigation and arrest of a drunk driving suspect. Many police, but certainly not all police, have received this special training, and are certified in "DWI Investigation and Standardized Field Sobriety Testing." Often the police officer that arrested you has not been trained or certified. What's worse, even with a trained and certified officer, the investigation and field sobriety testing are often done wrong.

A good DUI defense lawyer will know far, far more about DUI investigation and field sobriety testing than even a certified police officer. The police officer's manuals are readily available, and every good DUI lawyer will have them on his bookshelf and have them virtually memorized.

The police have rules and procedures that they are supposed to follow. An experienced and trained lawyer will know these procedures better than the police. If the police make a mistake (which they often do) your lawyer should see it.


Factor Two: The Story of Your Day-The Theme of Your Case

Obviously, whether or not you are intoxicated depends on whether or not you have consumed an excessive amount of alcohol. Therefore, the story of your day is very important, because it includes your alcohol consumption. The details are important because the truth often lies in the smallest fact.

What did you eat? Where did you go? Where were you coming from? Who were you with? And yes, what did you have to drink? This information is necessary to determine whether you were intoxicated, whether there are witnesses to support you or whether the chemical test result may be flawed.

For example, I once had a client who was arrested coming from his wife's wake. He had crossed the centerline slightly while driving on a curve in a two-lane country road, and was stopped. The police report contained the usual recitations: bloodshot eyes, slurred speech, poor balance, etc. The story of my client's day became critical. He had been to the cemetery, and then to a memorial reception for his late wife. He had eaten and drunk wine at the reception with his friends and relatives. These people were available to testify that at no time did he appear to be intoxicated during the entire day and evening. They were able to corroborate his moderate alcohol consumption, food intake and sobriety. My client not only became credible, but he became human and sympathetic. Too often, decent people are portrayed in the courtroom as anti-social monsters, and a humanizing touch can be very helpful to level the playing field. Obviously, if you were at a drunken biker's party, you may not want to advertise those facts. But, even if you were socializing at a tavern, the people you were with, including the bartender, can be important witnesses.

Chemical tests of breath and blood can be flawed and unreliable. So if possible, it is important to locate any credible witnesses to document your actual alcohol consumption. Be aware that this may be possible using charge card records, as well.

Likewise, alcohol hits harder on an empty stomach. So if possible, it is important to document what you had to eat.

The prosecutor will have a simple two-word theme for why you should be found guilty: drunken driving. The sheer simplicity of these two words is very powerful. Your lawyer should use the story of your day to develop a simple, powerful theme of your case. Every case is different so no one theme will fit all cases; but a good lawyer will develop your theme. It might be "Bad Cop," or "Honestly Mistaken Cop," or "Rush To Judgment."

Sometimes it might be best to make your theme a picture. I recently won a case (.17 breath test) using the theme, "The Officer Only Saw What He Expected To See." I presented this them with a picture, shown to the jury using a computer-generated PowerPoint Slide.


Factor Three: The Driving

Police will usually try to report in detail on the driving violations that led to the initial stop of your vehicle. The prosecutor will argue that these violations are evidence of the impaired judgment and coordination of intoxication. Of course, that it often not the case. The police will often stop cars for slight or invalid cause.

Why were you stopped? What was it about your driving or car that drew the attention of the police? Was it a burnt out license plate light? Was it speeding, three miles per hour over the limit? Or, was it severe unsafe lane deviations? Was there an accident? Many times, people are arrested for drunk driving, when the initial stop was due to some factor unrelated to alcohol consumption. Often times a stop occurs on some pretext, which has nothing to do with impaired driving. Unfortunately, it is undeniably true that racial minorities are stopped far more often on such pretexts (Emerge magazine has called this DWB, or driving while black). It can also be said that an old rusty car is a far more likely target of an unreasonable stop (this might be called DWB, or driving while broke).

It is also undeniably true that police watch restaurants and taverns, and stop people leaving those establishments, especially around or after midnight.

Some driving may, at first blush, appear to be erratic, when in fact it is not. For example, police like to stop people for weaving within the lane. What does that mean? As long as you stay in your lane, you are not weaving, right? Another, similar pretext is for an unduly wide exit to a turn. In many situations, however, a wide exit from a turn is the only proper or safe maneuver, even if it crosses traffic lanes.

Every person who drives a car knows that most people drive about five miles per hour over the speed limit. Low level speeding, or a similar traffic violation, may give the police the right to stop you, but it is definitely not evidence of intoxication.

Similarly, if you were in an accident, was it your fault? It is critical to show that whatever driving errors you made were not the result of alcohol-related impairment.


Factor Four: Your Behavior

Observation, and the lack of observation, of your behavior are crucial. This includes your behavior from the moment you are stopped and first observed by the police, to the moment when the observations stop, usually when you leave the police station.

Police are trained to observe. Yet in most drunk driving cases, their observations are limited to your driving and the field sobriety tests. To properly analyze a drunk driving case, all of your behavior should be considered, from the first moment you were stopped.

The field sobriety tests, to put it bluntly, are unfair. A very high percentage of stone-cold sober people cannot successfully perform the field sobriety tests. Many trained police officers, when asked to demonstrate the tests in front of a jury, will fail (or cheat, e.g. keep their eyes open on the finger-to-nose test). Jurors who attempt to do these tests during deliberation will often fail. So, it is important to consider all of your behavior, not just you field sobriety tests.

I will mention the most common field sobriety tests, but only in passing. These are the one leg stand, walk-the-line, finger-to-nose and eye test (horizontal gaze nystagmus test). The United States Department of Transportation, National Highway Traffic and Safety Administration publishes various manuals on how these tests should be performed, as do many state and local police departments. Nevertheless, it is common for the police to depart from proper test format, or to grade on irrelevant factors. For example, a subject will be told to recite the alphabet clearly, with no mention made of speed of recitation, but will be marked as failing if the recitation is slow. Another example would be to fail a subject who sways when performing the finger-to-nose test, even though the fingertip is touched correctly to the nose. These tests are usually performed under the worst of circumstances: in poor lighting, uneven pavement, poor weather, in improper clothing, etc. Further, a subject may be arrested for failing a single field sobriety test, after having passed a series of previous tests. A skilled lawyer will be able to show the unfairness of the field sobriety tests and direct the jury's attention to all of the defendant's behavior consistent with sobriety.

The other standard observations that are made in virtually all drunk driving cases are bloodshot eyes, slurred speech and odor of alcohol. Again, a skilled lawyer understands how to show a jury that these observations are often fabricated, exaggerated, inconclusive and taken out of context. Bloodshot eyes, for example, may be due to contact lenses, cigarette fumes, fatigue or may be the subject's normal appearance. The police have usually no prior experience with a subject or a subject's voice, so the subject's normal tone or accent (especially in the Milwaukee or Chicago area) may sound slurred. Similarly, the odor of alcohol may indicate recent alcohol consumption, but cannot indicate the amount consumed.

It is necessary to show the jury the entire picture of your behavior, not just the police observations which are taken out of context.

Did you pull over promptly, safely and in a controlled manner when the police activated their lights and siren? Were you able to produce your driver's license without fumbling? Were you able to get out of your car without difficulty? Were you able to walk to the area where the field sobriety tests were performed without difficulty? What were the weather and lighting conditions? What were you wearing? What was the state of the pavement? Were you able to communicate your name, etc. to the officer without stumbling on your words? Were you able to get in and out of the squad car without difficulty? Were you able to walk into the police station without stumbling?

Most of the time, police reports are silent on all observations except for the field sobriety tests. Since police are trained to write all relevant facts in their reports, their credibility will be subject to devastating challenge if they add facts to their testimony, which is not in their reports. So, if the reports are silent, it is safe to say that none of your behavior except for the (unfair) field sobriety tests evidenced any intoxication.


Factor Five: The Chemical Test

This little primer is not intended to be a manual of how to handle a drunk driving case, much less a manual on the technology and pitfalls of breath and blood tests. The technology has improved dramatically in the last few years. But like all technology, it is only as good as the people who operate it.

There are various types of breath tests in operation in the USA, including:

The Breathalyzer 900 and 900A,

The Intoxilyzer 5000, and later models,

The Intoximeter EC/IR (used in Wisconsin),

The Datamaster,

The Alcotest.

The Draeger.

The most famous of these, the Breathalyzer, is largely obsolete.

These machines are subject to error if not properly operated. One of the most common errors is mouth alcohol contamination (sometimes called belch contamination, giving rise to the term, belch defense ). These machines are designed to test the air in a subject's lungs. However, before the air can be tested, it must pass through the subject's mouth. And who knows what is in the subject's mouth? If the subject belched before the test, which can be a silent process, the mouth may contain relatively undiluted alcohol from the stomach. Hence the breath sample will be contaminated and the machine will give a false high reading. These machines are designed to detect mouth alcohol contamination: but the detection devices are fallible, and the manufacturers warn police to not rely on the machine to detect mouth alcohol contamination.

Rather, the police are supposed to perform a twenty-minute observation of the subject prior to the test, to certify that the subject did not smoke, drink, belch, etc. prior to the test. Needless to say, these observations periods are often very lax, if they occur at all.

In sometime people, for example those who suffer from GERD (gastro-esophageal reflux disease) the breath may be contaminated with stomach alcohol even if there is no belch. Dentures may also cause mouth alcohol contamination.

A skilled attorney can often demonstrate the failure of the police to perform a proper observation period, by making the police testify as to the exact timing all the completion of their various tasks, including the police reports, setting up the breath test machine, communications with other officers, etc.

That is just one example of the many different kinds of errors to which breath, blood and urine testing are subject. The important thing is to realize that these tests are flawed and fallible. If you believe you were sober, but failed the test, there is a strong possibility that the test was false. Detailed analysis and study of the testing process are a necessity in each individual case.


Factor Six: You.

Since you've been charges with drunk driving, you must be an antisocial, sloppy, mean, nasty drunkard, right?

That's what the prosecution wants the jury to believe. And, from a practical point of view, that's what they will believe unless you negate that impression by showing them that you are a nice, decent person. You must let them know that you are not a monster, you are a human being.

For the most part, we choose the image that we convey to the world. Our clothes, hairstyle, speech patterns, gait, etc., reveal the choices we have made in cultural identification. We may be artistic individualists, and choose to appear that way, with tattoos, body piercing, iconoclastic hairstyles, etc. But, when we choose to appear as radical individuals, we also choose to send a message of an attitude of negativity toward the straight world, and we symbolically identify with the drug culture, even if we don't use drugs. There is certainly nothing wrong with this; but we must be aware that the jury who will judge us will also judge the message we convey by our appearance. If we send a message of rejection of straight society, we send a message of rejection of the average juror.

When you ask a juror to give you a fair and impartial verdict, have the courtesy and respect to appear before them appearing to be a person who takes the occasion seriously, and is respectful of the jury and the trial process. Be yourself. but be respectful and let it show.

How? This is done primarily your appearance. Your must present yourself as neat, clean, hardworking, nice, honest person. If the jury likes you, they will give you the benefit of the doubt; but if the jury dislikes you, they will simply find you guilty. Juries are intelligent; they have a way of being able to smell deception. I'm not saying that you should flimflam them with a false image. But you should show them the respect they deserve. Have enough respect for their time and their authority to dress neatly.

Remember my client, the nice hardworking guy, coming from his wife's wake? The jury gave him the benefit of the doubt.

Another example of a great client was the only woman in our state to own an automobile body shop. She was a no smooth and slick type of lady; she was just a working-class woman who had made herself a success in a man's world by her simple hard work. The jury believed her even though she had a breath test result of .17 (which was explained by organic solvent contamination of her blood through long-term exposure to industrial chemicals and paint).

One more example is the pretty young wife well into her eighth month of pregnancy. Or, one last example is the eighty-three year retiree, who spent his days taking care of his invalid seventy-nine year-old wife. The prosecutor had a difficult time explaining the field sobriety testing procedure for a gentleman who used a walker to get to the witness stand.

You don't need to be a special case like these examples in order to be successful. Remember to show the jury the respect they deserve. Dress appropriately. Speak clearly, and honestly. Be yourself and be the kind of person that ordinary average people will want to believe.

I am a firm believer in the truth. In order to win you will probably have to testify. You will have to look the jurors in the eye and swear to them that you are innocent. If you are lying, they will see it. But, if you are honest your words will ring true, and they will see that, too.

If you and your lawyer adequately prepare and carefully consider the Six Key Factors of a drunk driving case, you will have a fighting chance.



The fact of the matter is that most people who are charged with drunk driving wind up being convicted. Most simply plead guilty in some sort of plea bargain. Some are convicted after a trial. Therefore, in any case, it is important to take a two-pronged approach. Both prongs must be worked at from the beginning. The first prong is consideration of the Six Key Factors, so that you can win the case. The second prong is preparing for sentencing, in case you lose or plea bargain.

Let's face it; you could very well be guilty. That doesn't make you an evil person. It means that you made a mistake. Learn from your mistake!.

If you are an innocent person who is convicted despite your best efforts, don't be bitter and angry. Use this as an opportunity to learn and grow as a person. Your life will be better and all of our loved ones will be safer.

How do you learn from a drunk driving case? This brings us back to the beginning. It's easy. Get Help! Learn about alcohol abuse, attend A.A. meetings. Get counseling for your personal problems. Get an assessment to determine whether you have and alcohol problem and follow through with treatment recommendations.

Make this an experience that turns you into a better person, not just a person with a conviction.

Do it before the sentencing hearing. Do it before the trial. Do it right from the beginning of the case. Everyone who appears before a judge at a sentencing hearing (except, perhaps Mahatma Gandhi) says that he is going to change, that he will do the things necessary to become rehabilitated. That is not good enough.

Be the rare person who goes into the sentencing hearing saying that I have already done and will continue to do the things necessary for my rehabilitation. You will definitely be treated more fairly if you do. But more importantly, you will have taken a tragic difficult event in your life and turned it into a source of change for the better.

Good luck. Don't drink and drive; that's why God invented taxicabs.

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The Andrew Mishlove Law Offices
9001 North 76th Street, Suite 306
Milwaukee, Wisconsin 53223
Phone: (414) 355-0006


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