Wisconsin criminal defense attorney in Milwaukee, Wisconsin

Wisconsin criminal terms and defenses - MIlwaukee criminal defense attorney

Your Wisconsin criminal defense attorney at Gamino Law Offices, LLC will explain every part of your case to you. First, if you face prosecution for a crime in Wisconsin, you may want to know why the state charged you they way they did. The prosecutor has options for how to charge your case. For example, sometimes the district attorney accuses someone of personally doing a criminal act. However, other complaints say someone’s involvement in the crime was as a party to the crime. Further, some charges allege an offense was only an attempted crime.

Do allegations that someone personally committed a crime carry similar penalties as offenses charged as a party to a crime? Yes. The penalty for committing a crime alone or as a party to a crime is exactly the same! However, when a complaint alleges an attempted crime in Wisconsin, the potential sentence is generally half of the penalty for the completed criminal act. An attempted crime has a maximum possible punishment half the penalty of the completed offense, whether done alone or as a party to the crime.

Explaining Wisconsin criminal law

Our Wisconsin criminal defense lawyers will discuss anything you need to know about your criminal case in Milwaukee or Wisconsin. We provide our clients with valuable information about important pretrial and trial defenses to get the best outcomes. Your criminal defense attorney will litigate all possible pretrial motions to try to improve your case. We do all we can to limit the evidence available to the prosecution at your trial.

We understand that you probably have many questions if the state charged you with a crime in Milwaukee or Wisconsin. You probably what to know things like: what is going to happen? You may also want to know what to expect in court. Similarly, you may question the legal terms you may hear. Finally, you probably want to know what defenses you have available.

Wisconsin criminal offense definitions and common defenses

When you hire our Wisconsin law firm, a Milwaukee criminal defense attorney will explain what will happen in your case. Your lawyer should tell you everything to expect. You should know what the prosecutor will likely do and what will happen in court. Most importantly, your lawyer should inform you of the best defenses for your case. Your lawyer should give you as much time and attention as necessary and will answer all your questions.

Here is a guide to some of the most common questions our clients have about the terms and defenses used in Wisconsin criminal cases.

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FAQ – Get answers to the following questions. What is:

  • an attempted crime
  • the NGI defense
  • “party to a crime”
  • the difference between a misdemeanor and a felony offense in Wisconsin
  • criminal intent
  • the intoxication defense
  • entrapment
  • criminal recklessness
  • the mistake defense
  • criminal negligence?
  • the defense of privilege?
  • the defense of coercion?
  • a defense of necessity?
  • self defense?
  • defense of a third party?
  • the warrant requirement?
  • a 4th Amendment right?
  • a Miranda right?
  • double jeopardy?
  • expungement?
  • a bench warrant?
  • a deferred prosecution agreement?
What does it mean to “attempt” to commit a crime in Wisconsin?

​The state can charge someone with attempting to commit a crime when the person had intent to perform acts and attain a result, which, if accomplished, would constitute such crime. A person attempts a crime if the actor acts toward the commission of the crime and demonstrates unequivocally, under all the circumstances, the actor formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.  Wisconsin Statutes § 939.32(3).

Generally speaking, the penalty for an attempted crime is half the penalty for a completed crime.  However, the penalty for attempting a class A felony in Wisconsin is a maximum of 60 years imprisonment (40 years in initial confinement and 20 years of extended supervision). Our Wisconsin criminal attorney in Milwaukee can help you if you face prosecution for attempting a crime.

What does “party to a crime” mean in Wisconsin?

Anyone concerned in the commission of a crime is a principal, according to Wisconsin Statute 939.05. The State can charge a principal with, and convicted a principal for, the commission of the crime although the person did not directly commit it. Furthermore, prosecutors may convict a principal even though the State doesn’t convict the person who directly committed the crime or the State convicts that person of some other degree of the crime, or of some other crime based on the same act.

Concerned with the commission of a crime

A person is concerned in the commission of the crime if the person:

  • Directly commits the crime; or
  • Intentionally aids and abets the commission of it; or
  • Is a party to a conspiracy with another to commit it or advises, hires, counsels or otherwise procures another to commit it. A person meeting this standard is also concerned in the commission of any other crime committed in pursuance of the intended crime and which is a natural and probable consequence of the intended crime under the circumstances. 

Note, showing that the person voluntarily changed his or her mind and no longer desired that the commission of the crime constitutes a defense to a party to a crime charge. However, the person must have notified the other parties involved of his or her withdrawal from participating in the offense within a reasonable time before the commission of the crime. In essence, the person had to allow the others also to withdraw.

What is the difference in Wisconsin between a misdemeanor offense and a felony offense?

​According to Wisconsin Statute 939.60, crimes that are punishable by time in the state prison are felonies. All other crimes are misdemeanors. Only sentences of one year carry possible time in the state prison.  Therefore, any crime for which the penalty is one year or more is a felony.  

However, any crime that is punishable by “one year or less” that does not specify a location may result in confinement in prison. Prison could result if the sentence were for 1 year. Therefore, such crime is a felony.  

Any crime that is punishable by less than one year can only result in a jail sentence. Therefore, such crime is a misdemeanor.  In contrast, a crime that is punishable by “one year or less” is  a misdemeanor only if the possible punishment explicitly states the place of confinement would be the county jail.

What does it mean to have criminal intent in Wisconsin?

Wisconsin law describes criminal intent. An element of any crime includes intent where the criminal code uses the term “intentionally,” or the phrases “with intent to” or “with intent that.”  An element of a crime using the verbs “know” or “believe” also includes intent.  

  • To prove an element of knowledge, the State must show that the person believed the specified fact existed.
  • To establish something was done intentionally, the State must show the person possessed “a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result.” In addition, except in some circumstances, knowledge of those facts necessary to make his or her conduct criminal and set forth after the word “intentionally” must be had by the person.
  • For proof of an element that a person did something “with intent to” or “with intent that,” means the state must show the person either had a purpose to do the thing or cause the result specified, or was aware that his or her conduct was practically certain to cause that result.

Note, lack of knowledge that certain conduct constitutes a criminal offense is not a defense.  Additionally, lack of knowledge of someone’s age is not a defense where age is a material element of a crime.  ​

What does “criminal recklessness” mean in Wisconsin?

​What is criminal recklessness? Wisconsin Statute 939.24 defines criminal recklessness, or the terms “reckless” and “recklessly” as used in the criminal statutes. The statute defines recklessness as when someone creates an unreasonable and substantial risk of death or great bodily harm to another human being (or unborn child) and the actor is aware of that risk.

Voluntary intoxication is generally not a defense to liability for criminal recklessness.

What does “criminal negligence” mean in Wisconsin?

Wisconsin Statutes 939.25 defines criminal negligence, or the terms “negligent” or “negligently” as used in the criminal statutes. The definition is “ordinary negligence to a high degree.” This means conduct that a person “should realize creates a substantial and unreasonable risk of death or great bodily harm to another.”

​What are the Wisconsin intoxication defenses?
  • Voluntary intoxication – may be a defense in Wisconsin if it negatives the existence of a state of mind essential to the crime.  This requires showing that the degree of intoxication left the person utterly incapable of forming the requisite intent for the crime charged.
  • Involuntary intoxication –  may constitute a defense if intoxication is involuntarily produced and renders the person incapable of distinguishing between right and wrong in regard to the alleged criminal act at the time the act is committed or if it negatives the existence of the state of mind essential to the crime.

Wisconsin Statute § 939.42.  

What is an example of conduct that isn’t involuntary intoxication?

Addiction, however, doesn’t make intoxication involuntary.  Similarly, not knowing the intoxicating effects of a substance taken voluntarily is not considered involuntary intoxication.  For example, knowledge of the potentially intoxicating side effects of a substance taken involuntarily does not make the intoxication voluntary if the person took the substance involuntarily.  Specifically, this defense requires that the intoxicant have been taken involuntarily. Further, intoxication resulting from compliance with a doctor’s advice is not deemed voluntary as a result of being advised of potential side effects. State v. Gardner, 230 Wis. 2d 32, 601 N.W.2d 670 (Ct. App. 1999).  If intoxication is an issue in your Wisconsin criminal case, contact a skilled Wisconsin criminal defense attorney in Milwaukee to assist you in preparing your defense.  

What is considered a mistake in Wisconsin

​A mistake is a defense to a crime if it is an honest error, whether of fact or of law other than criminal law, and if it negatives the existence of a state of mind essential to the crime. This is according to Wisconsin statute 939.43.

​Lack of knowledge or mistake about whether certain conduct is a crime is not a defense. Additionally, lack of knowledge or mistake about the age of a minor is not a defense where age is a material element of a crime. 

What is the Wisconsin privilege defense?

​If someone’s behavior is privileged, even though it is otherwise criminal conduct, privilege is a defense.  There are privileges for the following conduct:

  • necessary or coerced – conduct as defined by those specific defense;
  • self defense – or in defense of another person(s) or property;
  • duty of public office – done in good faith and in fulfillment of those duties;
  • parental privilege –  when the conduct constitutes reasonable discipline of a child and a person responsible for the child’s welfare does the the conduct.  Reasonable discipline does not include force intended to cause, or that creates, an unreasonable risk, great bodily harm or death.

​Other privileges exist that may apply to specific cases.  Do you believe your conduct was privileged? Talk to a knowledgeable Wisconsin criminal defense attorney immediately to determine if a privilege applies to the criminal conduct of which you stand accused. Your criminal lawyer will enforce your rights if your conduct was privileged in Wisconsin.

What is the Wisconsin coercion defense?

​According to Wisconsin Statute 939.46, coercion is generally an available defense if the criminal conduct was a result of a threat by a person other than a co-conspirator that caused the person committing the crime reasonably to believe that his or her criminal act was the only means of preventing imminent death or great bodily harm to himself, herself, or another.  

What is the Wisconsin necessity defense?

​According to Wisconsin Statute 939.47, necessity is generally an available defense if the criminal conduct was the result of pressure of natural physical forces which caused the person reasonably to believe that his or her criminal act was the only means of preventing imminent public disaster, or imminent death or great bodily harm to the person or another.

What is the Wisconsin NGI defense?

A plea of “not guilty by reason of mental disease or defect” starts an insanity defense in Wisconsin. Wisconsin law, states “a person is not responsible for the criminal conduct if, at the time of such conduct as a result of mental disease or defect the person lacked substantial capacity either to appreciate the wrongfulness of his or her conduct or conform his or her conduct to the requirements of the law.”  However, excluding criminal responsibility does not mean that there may not be a consequence after a finding of not guilty by reason of insanity.  

In Wisconsin, if a Court finds someone NGI, that person may be committed for mental health treatment. This means a Court may place the person in an institution to receive mental health treatment.  A finding of not guilty by reason of mental disease or defect does not provide a free pass for the conduct involved and can seriously hamper future rights.  It is important to talk with an experienced Milwaukee, WI criminal defense lawyer if mental responsibility is an issue in your case.  

What constitutes self-defense in Wisconsin?

​The Wisconsin self-defense privilege is codified in § 939.48 of the Wisconsin Statutes.  It says:  “A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by [the] other person.”

  • The person may only use the degree of force reasonably necessary to prevent or stop the interference. 
  • The person may not intentionally use force intended or likely to cause death or great bodily harm unless the person reasonably believes such force is necessary to prevent imminent death or great bodily harm to himself or herself.
  • Someone who engages in unlawful behavior likely to provoke others to attack him or her generally may not claim self defense. That is, unless the attack that ensues reasonably causes the person to believe that he or she is in imminent danger of death or great bodily harm.

If you face charges of a crime in Wisconsin and you believe you acted in self defense, contact a Milwaukee, Wisconsin criminal defense lawyer right away. The sooner you hire an attorney, the sooner we can investigate your self-defense privilege against criminal charges in Milwaukee, Wisconsin.

What constitutes defense of a third party in Wisconsin?

Under Wisconsin law, a person is privileged to use force to defend another person from real or apparent unlawful interference by someone else. You can defend someone else under the same conditions and by the same means as apply to the use of force in self defense.  

  • The person must reasonably believe that the 3rd person would be privileged to act in self-defense.
  • The person must reasonably believe that their intervention is necessary for the protection of the 3rd person.

Wisconsin Statutes ​§ 939.48(3).

What is the entrapment defense in Wisconsin?

When a law enforcement officer used improper methods to induce someone to commit an offense they were not otherwise disposed to commit, the person may pursue the defense of entrapment. If a Wisconsin law enforcement or police officer in Milwaukee entrapped you, contact our criminal lawyers in Milwaukee, Wisconsin.  We have litigated entrapment defenses for clients charged with serious drug offenses in the Milwaukee area. We can obtain successful results for our clients using an entrapment defense.  

Don’t the police need a warrant to arrest me or to search me?

The 4th Amendment to the Constitution indicates police should have a warrant before searching or arresting anyone. Police should have a search warrant before they conduct a search and an arrest warrant before they make an arrest. The warrant required applies unless the police officer has alternative grounds to lawfully perform a search or arrest. However, strong constitutional protection exist against unreasonable searches and seizures. Therefore, the State holds the burden to convince the judge that law enforcement conducted any warrantless search or seizure in accordance with the law.  Absent sufficient proof of a valid exception to the warrant requirement, warrantless searches and seizures are PER SE unreasonable.

What does it mean that a warrantless search or seizure is per se unreasonable? It means a Court may suppress evidence police obtained during an illegal search . The state generally cannot use suppressed evidence against you in your trial.  The Milwaukee criminal defense lawyers at Gamino Law Offices, LLC have vast experience litigating motions to suppress evidence. When police conduct warrantless searches or seizures, we seek to suppression of the evidence. We can also seek evidence suppression if police exceeded the scope of a warrant or illegally obtained the warrant. If police searched or seized you in Milwaukee or Wisconsin, call our aggressive criminal attorney to defend you.

What protection do I have against illegal police searches or seizures?

If police illegally stop, seize or arrest you we can ask the court to suppress anything they found. Similarly, if police illegally search you or your belongings we can ask the court to suppress what they found. That means the state can’t use any evidence discovered during the illegal search, stop, or arrest to prosecute you.  If the police did not have a warrant when they searched your belongings or your home, call Gamino Law Offices!  Our criminal defense lawyers in Milwaukee can protect you from prosecution as a result of illegal police behavior.  

What are my 5th amendment rights?

A police officer probably “read you your rights” if police arrested you. It probably sounded like this:  “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to be speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.”​  These statements constitute the standard Miranda warning used by law enforcement.  

What a Miranda warning means is that the police cannot make you talk to them.  You do not have to say anything.  Remember, the prosecutor will use anything you say against you.   You have the right to have a lawyer.  Also, you have a right to talk to a lawyer before you talk to the police.  Further, you have a right to have your Milwaukee, Wisconsin criminal defense attorney with you if you decide to talk to the police.  Tell the police you want your lawyer before you agree to say anything.

Police want to talk with me, should I talk to the police?

A knowledgeable Wisconsin criminal defense attorney can help you if the police want to question you. If law enforcement arrested you anywhere in Milwaukee, Waukesha, or Wisconsin we can help.  Do not say anything until you have spoken to your Milwaukee criminal defense lawyer!  

The Wisconsin criminal defense lawyers at Gamino Law Offices, LLC in Milwaukee and Waukesha are familiar with police questioning techniques.  Law enforcement mislead you in their questioning and in the information they provide to try to elicit cooperation.  Talking to law enforcement without a lawyer’s advice or without your lawyer present may hurt your defense. You could waive your rights and say something they will use against you at trial in your case.  We will protect you from unknowingly, unintelligently or involuntarily waiving your right to remain silent. Call our criminal defense lawyers in Milwaukee before you agree to speak with the police.  We will guard your rights!  If you already spoke police we can try to get your statement suppressed. We may be able to suppress your statement if you waived your rights and spoke to the police unknowingly, unintelligently or involuntarily. 

When should the judge throw my case out for double jeopardy?

The constitution forbids the state from prosecuting you for the same offense twice. This means a prohibition exists to stop the State from prosecuting you again if the trier of fact acquitted you in a prior case. Similarly, the state can only convict you once for the same crime.  Further, the State cannot prosecute you for a dismissed charge dismissed in a plea agreement. If you entered a plea agreement agreeing to conviction for one charge and have another charge dismissed then you can’t be prosecuted for it again.  However, if you’re convicted but the case later gets thrown out, sometimes you can be retried for that offense. Generally, that situation is not considered double jeopardy.  If you believe the state is violating your double jeopardy rights, call a lawyer right away. Contact a Wisconsin criminal defense lawyer in Milwaukee immediately to guard your double jeopardy rights, our attorney will fight for you.

Can my case be expunged?
Juvenile offenses
  • ​A juvenile found to be delinquent may have their record expunged.  If you were previously found delinquent and are now age 17, we can petition the court to expunge the court’s record of your juvenile adjudication. The court may expunge you record if you have satisfactorily complied with the conditions of your dispositional order and you will benefit from, and society will not be harmed by, the expungement. Our Milwaukee, Wisconsin criminal defense attorney can help you seek expungement and clear your name.
Adult offenses
  • If you were under the age of 25 at the time you committed a crime, and the crime you were convicted of had a maximum penalty of 6 years imprisonment or less (nothing more serious than a class H felony), the court may order at the time of sentencing that the record be expunged upon successful completion of the sentence if the court determines the person will benefit and society will not be harmed by this disposition.  Importantly, you should find a knowledgeable attorney who reserves your right to request expungement when you are sentenced.  If you are under age 25 and facing misdemeanor charges or class H or I felony charges, or an unclassified crime with a penalty of 6 years or less, contact us. We are thorough Wisconsin criminal defense attorneys who will protect your right to have your court record expunged.  Expunged convictions cannot be counted against you in determining prior convictions if you are ever in any trouble again!  Expungement of your court record, unfortunately, does not require law enforcement or the prosecutor to purge their files nor does it require those agencies to destroy records of your arrest.
DNA records
  • Our Milwaukee criminal defense lawyers know to request expungement of your DNA analysis included in the Wisconsin DNA bank.  If your criminal conviction or adjudication has been reversed, set aside or vacated we can have all records and identifiable information in the data bank pertaining to you purged, and all samples of your DNA destroyed.
What happens if there is a bench warrant out for me?

If a warrant for your arrest exists, you risk arrest at any time and taken to jail.  We understand sometimes people forget about a court date or fear stops them from attending.  Rest assured, when an experienced criminal defense lawyer in Wisconsin stands by your side, and you come to court when you are supposed to, we do everything in our power to ensure that you walk out with us.

What if I miss court? 

If you miss court for any reason when you were required to attend, the judge may order a warrant for your arrest. Sometimes courts also call a bench warrant a “capias” for your arrest.  Similarly, judges will issue a warrant if they believe you have violated the terms of your bail.  Whatever the reason, if there is a warrant for your arrest, you want to contact a Milwaukee criminal defense lawyer to help you turn yourself in and resolve the warrant as soon as possible.  

Judges look more favorably on people who voluntarily turn themselves in to the court if a bench warrant for their arrest exists. This holds true, whether the warrant resulted from missing court or violating the terms of bail, compared to someone returned to court on a warrant after absconding.  Our lawyers can help you return to court and put your case back on track with a skilled criminal defense team.

Can I get a deferred prosecution agreement in Wisconsin?

Deferred prosecution agreements are available in many Wisconsin criminal cases.  If you face charges for a crime and the district attorney agrees, you may obtain a deferred prosecution agreement. This is the case for charges in Milwaukee, Waukesha or anywhere in Wisconsin.  

Normally there will be a number of conditions that you must comply with or programs you must complete. For example, the State may require you to demonstrate compliance with the conditions or programs or file periodic reports during the term of the deferred prosecution agreement.  However, if you successfully complete the deferred prosecution agreement it results in dismissal of your case with prejudice. A dismissal with prejudice means the charge may never be recharged.  We have a Milwaukee, Wisconsin criminal defense attorney with skilled negotiation tactics who have successfully resolved cases with deferred prosecution agreements in Wisconsin.  We would like to help you.

In conclusion, contact us for more information about a state or federal Milwaukee, Wisconsin criminal defense attorney we have a lawyer for you. Our Milwaukee criminal defense attorneys look forward to serving you!  Also visit our informative Wisconsin criminal lawyer resources page.