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What Counts as Resisting Arrest?

By Carlos Gamino. Click here for audio version.

If you’re like many people, you’ve heard the term resisting arrest – but what does it mean, and what kinds of actions count under Wisconsin law? This guide explains resisting arrest in Wisconsin, the types of penalties the judge can impose on you if you’re convicted of this charge, and when it’s okay to walk away from a police officer.

What Counts as Resisting Arrest in Wisconsin?

Under Wisconsin law, “whoever knowingly resists or obstructs an officer while such officer is doing any act in an official capacity and with lawful authority is guilty of a Class A misdemeanor.” The law continues to say that if you cause substantial bodily harm or a soft tissue injury to an officer, it becomes a Class H felony. Additionally, it becomes a Class G felony if you cause great bodily harm to an officer.

Using physical force to fight your way out of an arrest is generally accepted as a form of resisting. If you pull your hands away from an officer who’s trying to handcuff you, run away, push a police officer or use any other form of physical resistance (including making your body limp to make things more difficult for the police) to try to avoid being arrested, the state can charge you with this crime.

Related: What you need to know about running from police

Penalties for Resisting Arrest

If you’re convicted of obstructing an officer or resisting arrest, the penalties depend on whether it’s a misdemeanor or felony, based on the circumstances of the crime. The following table outlines the possible penalties for each.

Resisting arrest as a Class A misdemeanorUp to 9 months in jail; fines of up to $10,000
Resisting arrest as a Class H felonyUp to 3 years in prison with 3 years of extended supervision; fines of up to $10,000
Resisting arrest as a Class G felonyUp to 5 years in prison with 5 years of extended supervision; fines of up to $25,000

Can You Fight Resisting Arrest Charges?

It is possible to fight back against resisting arrest charges. In some cases, attorneys are able to prove that the police unnecessarily escalated your situation, that you were defending yourself against excessive force, that you were unaware that the arresting officer was actually a law enforcement officer, or that you did not intend to resist arrest. In rare cases, attorneys can show that the police attempted to charge you with resisting arrest because you were simply arguing or criticizing them.

Related: What to do if you have a warrant out for your arrest in Wisconsin

Do You Need to Talk to an Attorney About Resisting Arrest Charges?

If you’ve been charged with resisting arrest, with or without other charges, we may be able to help you. Call us at 414-383-6700 to schedule your free consultation and get answers to your questions now.

Carlos Gamino

By |2021-11-23T11:54:10-06:00September 27th, 2021|Criminal Law|Comments Off on What Counts as Resisting Arrest?

What if the Police Don’t Read You Your Rights?

By Carlos Gamino

You’ve probably seen people being read their rights on TV – it happens in every crime-related show. “You have the right to remain silent,” the police say to a handcuffed suspect.

But in real life, things don’t always work that way, and the police don’t always read people their rights.

You may be surprised to learn that sometimes, it’s okay for the police to fail to read you your rights – and that they may still be able to use your own words against you in court. This guide explains what happens if the police don’t tell you about your rights.

Related: What is the Miranda warning?

What if the Police Don’t Read You Your Rights?

First things first: You won’t escape punishment for committing a crime if police fail to read you your rights. Now that that’s out of the way, you need to know that police only need to explain your rights when you’re officially in police custody and they want to ask questions that they can use at trial.

Related: Does talking to the police help you in court?

If you’re not in police custody, the police are not required to read you your rights. That means if you’re standing in the street speaking to a police officer, the things you say can (and almost certainly will) be used against you in court. Check out this example:

You and your spouse are involved in a domestic dispute and someone calls the police. The police show up and ask you what happened, and you begin to describe the situation. You don’t intend to say that you threw a lamp that hit your spouse in the head, even though you did so in self-defense.

You ask the police officer if he’s arresting you and he says, “No, but I really just want to figure out what happened here so you don’t have to go to jail.”

You know that the lamp you threw hit your spouse in the head, but you don’t want to admit it. You say, “We were both being physical with each other.” The police officer asks you how you were physical with each other, and you say that your spouse was blocking you from leaving – and then he asks you what happened with the lamp and why your spouse’s head is bleeding.

If you tell the officer that you threw the lamp, there’s a very good chance that the state will use what you said against you in court – even though you’re not under arrest and haven’t been read your rights. If you make the smart choice and say you’d like to speak to an attorney before going any further, the officer may still arrest you and read you your rights – but you haven’t said, “I threw the lamp,” so the state can’t use that statement against you at trial.

Of course, this is a fictional example, but the point is that if you haven’t been arrested and police are talking to you about your potential involvement in a crime, they don’t have to read you your rights. Additionally, the state can use your own words against you in court.

Related: Do you have to talk to the police if they question you?

Do You Need to Talk to an Attorney About Criminal Charges?

If you’ve been accused of a crime, our team may be able to help you. Call us at 414-383-6700 now to schedule your free consultation. We can answer your questions and help you decide the best course of action in your case.

Carlos Gamino

By |2021-07-17T08:48:32-05:00August 30th, 2021|Criminal Law|Comments Off on What if the Police Don’t Read You Your Rights?

When Can Police Search Your Body?

By Attorney Carlos Gamino

Sometimes the police are allowed to search your car, your bag, your home and even your body – but when is that okay? Do the police need a warrant to frisk you or search your body? Are some police searches illegal? Here’s what you need to know.

Related: What to do if police knock on your door

When Can Police Search Your Body?

The Fourth Amendment to the U.S. Constitution protects you against unreasonable searches and seizures – but not against reasonable searches. Police officers can briefly detain you if they suspect you’re guilty of criminal activity, and if they think that you’re armed and dangerous, they can frisk you. Frisking is patting down your outer clothing to look for weapons, and if police can identify something illegal that you have on your person (such as a bag of pills or drug paraphernalia), they can take it from you.

If the police officially arrest you, they’re allowed to fully search you. They can even go through your pockets to look for anything you’re not supposed to have, as well as through your personal effects that are within your reach (such as your wallet, backpack, purse or planner).

Related: Your rights if you’re stopped by police

Do Police Need a Warrant to Search You?

Usually police do need a warrant to search you or your property – but the exceptions are:

  • Stop and frisk pat-downs
  • Searches of your person and personal effects after an arrest
  • When something illegal is in the officer’s plain view
  • When you consent to a search
  • During emergencies, such as to prevent the destruction of evidence or to protect people
  • When police have probable cause, which means they have reason to believe you’re engaged in (or were engaged in) the commission of a crime or that there’s evidence of a crime on your person or in your area

Do You Need to Talk to a Criminal Defense Attorney in Wisconsin?

If you’ve been searched and charged with a crime as a result, we may be able to help you. Call our office at 414-383-6700 to schedule a free consultation – we’re here to answer your questions, explore your options and explain the possible outcomes of your case.

Attorney Carlos Gamino

By |2021-07-17T08:59:10-05:00August 16th, 2021|Criminal Law|Comments Off on When Can Police Search Your Body?

Can Police Search Your Trunk?

By Attorney Carlos Gamino

In many cases, the police can legally search the trunk of your car – but it’s not always legal for them to do so. This guide explains when police can search your trunk, as well as what you should do during and after a search.

Can the Police Search Your Trunk in Wisconsin?

The Fourth Amendment to the U.S. Constitution protects you from illegal searches and seizure. That means the police can’t stop you for no reason, demand that you open your car’s trunk and dig around for contraband or evidence that connects you to a crime. However, there are some circumstances that make it okay – and legal – for officers of the law to search the trunk of your car.

When is it Okay for Police to Search Your Trunk?

Often, police don’t need a warrant to search the trunk of a car. If they have probable cause (a good reason) to believe that there’s something illegal in your trunk, or that you’ve committed a crime (or are about to commit a crime) and they arrest you, they may be lawfully allowed to search it. Generally, anything that’s within your reach when you’re arrested is fair game for police to search – and technically, your trunk may be considered within your reach.

However, police aren’t allowed to search your trunk during a routine traffic stop without probable cause. Thanks to the Supreme Court ruling in the case Knowles v. Iowa, a routine traffic stop (even if it results in a ticket) isn’t enough to give a police officer reason to believe that there’s something illegal in your trunk. That means if you’re pulled over for rolling through a stop sign, going 5 miles per hour over the speed limit or failing to signal a turn, the police don’t automatically have reason to believe you’re committing a crime.

Did Police Find Something Illegal in Your Trunk?

If the police searched your trunk and found something illegal, and now you’re facing criminal charges in Wisconsin, we may be able to help you. (We can help you with traffic violations, too.) Call our office at 414-383-6700 now to schedule your free consultation. We can answer your questions and create a strategy that gets you the best possible outcome.

Attorney Carlos Gamino

By |2021-08-08T14:01:03-05:00August 4th, 2021|Criminal Law|Comments Off on Can Police Search Your Trunk?

What to Do if Your Child is Charged With Underage Drinking

What if Your Child is Arrested for Underage Drinking - Carlos Gamino

By Carlos Gamino

As a Milwaukee lawyer who’s also a parent, I understand what it’s like to worry about your children. If your child is arrested for underage drinking in Wisconsin, especially in Milwaukee or Waukesha, here’s what you need to know.

What to Do if Your Child is Arrested for Underage Drinking

First things first: Get in touch with an attorney who can work within the legal system on behalf of your child. Your attorney will figure out what really happened, including what led up to the incident, and build a defense that gets your child the best possible outcome.

Stay calm, too. Underage drinking isn’t the end of the world for your child. If your child hasn’t been in any trouble with the law before, your attorney may be able to argue that his or her spotless record is enough to indicate that your child isn’t a “wayward” teen or a troublemaker. While there’s no way to guarantee how a judge will rule, it’s helpful to know that many minors are cited for underage drinking and that’s the end of it.

Underage Drinking in Wisconsin: What You Need to Know

Possession and consumption of alcohol by a minor – someone under the age of 21 – is illegal in Wisconsin except in certain circumstances. The exceptions include when the minor is with a parent or a spouse.

Criminal charges can arise when the minor uses a fake ID to purchase alcohol, though, just as they can when the child drinks and drives.

Penalties for underage drinking can include the loss of driving privileges (even if the minor didn’t drive while intoxicated), fines, and court-ordered supervision. The penalties can be more severe, depending on your child’s circumstances. However, you may find it helpful to know that the Department of Transportation does not disclose information about a juvenile’s underage alcohol conviction to anyone but the court, district attorney, prosecutor, law enforcement agency, the minor, and his or her parents or guardians.

Penalties are different for juveniles, who are children under the age of 17, and what the law defines as underage minors (those who are between the ages of 17 and 20).

Do You Need to Talk to an Attorney About Your Child’s Underage Drinking Charges?

You may find it helpful to talk to a Milwaukee attorney who understands what you – and your child – are up against. If your child has been accused of underage drinking, OWI, or any other alcohol-related offense, we may be able to help.

Call us at 414-383-6700 to let us know what’s going on during your free case review. We’ll start developing a strategy that helps your child deal with this issue and gives you the peace of mind you need right now.

Carlos Gamino

By |2021-07-25T13:10:38-05:00November 24th, 2019|Juvenile Law|Comments Off on What to Do if Your Child is Charged With Underage Drinking

5 Things to Do if You’re Arrested in Waukesha

What to Do if You're Arrested in Waukesha - Waukesha Arrest Lawyer

By Carlos Gamino

If you’re arrested in Waukesha, you may or may not be guilty of a crime—but either way, it’s a scary experience.

So what can you do to make things easier on yourself?

What to Do if You’re Arrested in Waukesha

Remember that when you’re arrested, you still have rights. You have quite a few rights, in fact, and one of them is the right not to incriminate yourself.

The first thing you should do if you’re arrested in Waukesha is tell police that you want to talk to your attorney. Police may try to encourage you to talk to them (that’s their job), but you don’t have to; once you ask to talk to your lawyer, they shouldn’t try to question you further—and you shouldn’t volunteer any information until your lawyer gets there.

The police will “book” you, which means taking you to the police station or jail and taking your fingerprints. They’ll also take a photo, and they’ll send you to a holding cell. You’ll wait there until you’re taken to a judge or until you post bail.

You have the right to talk to your lawyer before you’re taken to the judge, and you can have your lawyer go with you to your first hearing. In some cases, you may bail yourself out of jail without seeing a judge first.

At your arraignment—the next hearing you’ll get if you’re actually charged with a crime—the judge will formally tell you what crime you’ve been charged with (whether it’s arson, prostitution, or any other type of crime) and you may have the opportunity to say whether or not you’re guilty of the charges. Again, it’s a good idea to have an attorney with you at this hearing. Your lawyer can speak for you and preserve your rights… and a good lawyer will already be formulating a plan to get you the best possible outcome.

Has Your Loved One Been Arrested?

If you’re reading this because your loved one has been arrested in Waukesha, call us right away at 414-383-6700; you can also contact us online for a free consultation. We answer the phones at all hours, and we may be able to help preserve your loved one’s rights if he or she is in police custody.

Carlos Gamino

By |2021-07-25T15:29:02-05:00November 23rd, 2019|Criminal Law|Comments Off on 5 Things to Do if You’re Arrested in Waukesha

Can I Face Arrest if I Didn’t Commit a Crime?

Why was I arrested if I didn't commit a crime - Gamino Law Offices, LLC

Sometimes bad things happen to good people. Whether you’re in the wrong place at the wrong time or you’re somehow associated with friends or family members who have committed a crime, you could be arrested even though you’ve done nothing wrong. Without an experienced Milwaukee criminal defense lawyer by your side, you could be convicted of a crime that you didn’t commit and subjected to criminal penalties.

Why Was I Arrested if I Didn’t Commit a Crime?

People often ask us why they’ve been arrested when they’re innocent of any wrongdoing. While nobody can predict what police will do, there are a handful of reasons that you could be arrested without committing a crime.

  • A prosecutor may think that he or she has enough evidence to implicate you in a crime, you can be arrested.
  • You may not be aware that what you did was a crime, or you may have unknowingly committed one (such as harboring someone who was wanted by police, for example).
  • Police may be trying to control a dangerous situation and may think you’re involved; if that happens, you may be arrested.

It’s important to note that police can arrest you if they believe that you’re doing (or have done) something illegal.

If You’re Arrested but Innocent

It’s always important to find a Milwaukee lawyer who can help protect your rights. Remember: you don’t have to answer any questions without a lawyer by your side. You can simply say that you want to speak to an attorney – and in many cases, that’s the best choice. While you may feel like you’re helping investigators, or that simply stating your case to them will help them understand that you’re innocent, it’s almost always best to wait for an attorney’s guidance.

By |2021-08-08T12:50:38-05:00November 16th, 2019|Criminal Law|Comments Off on Can I Face Arrest if I Didn’t Commit a Crime?

Help! My Child Was Arrested!

My Child Was Arrested - Carlos Gamino

By Carlos Gamino

It’s not uncommon for good kids to find themselves in trouble with the law – even Bill Gates was arrested as a teenager – but if it’s your child, it’s a different story. So what should you do if your child is arrested? Here’s what you need to know.

Help! My Child Was Arrested!

The bottom line is that kids don’t have the emotional or mental maturity to make rational decisions, which can get them into scrapes with the law. Maybe your child was only in the wrong place at the wrong time, or maybe he or she was with the wrong group of friends. No matter why your child was arrested, you have to remember:

  • The police are not on your side. They’re not on anybody’s side – their job is to respond to complaints and create reports on what they see and hear.
  • Cooperation and respect go a long way with the police. Make sure you (and your child) know that if you talk to the police – which you shouldn’t do without consulting a lawyer – you must be respectful and polite at all times. Additionally, make sure your children know that they need to tell police to call you if they’re detained.
  • Your parental rights don’t take precedence over law enforcement’s rights. In many cases, you cannot simply pick up your child from the police station and call it a day.
  • You shouldn’t try to negotiate with the police. Find out if your child is being investigated for committing a crime, if police will tell you, and contact an attorney. Never tell your child to “come clean” to police or to speak to them without consulting an attorney first. In many cases, kids just want to end the process – it’s scary and confusing for kids, too – and they may say something they shouldn’t. This is true whether or not your child is guilty!

Was Your Child Arrested?

If your child was arrested in Milwaukee or elsewhere in Wisconsin, we may be able to help. Tell your child not to say anything to police until an attorney has arrived – because while it’s unfortunate, it’s true that the police might coerce your child into giving a confession. Call us right away at 414-383-6700 and we’ll give you the case-specific advice you need.

Carlos Gamino

By |2021-08-08T13:07:54-05:00November 16th, 2019|Criminal Law, Juvenile Law|Comments Off on Help! My Child Was Arrested!

Do You Have to Talk to Police if They Question You?

Do You Have to Talk to Police - Carlos Gamino

By Carlos Gamino

It might surprise you to know that you don’t have to talk to police – your right to remain silent is pretty much absolute. In many cases, talking to the police, even if you’re innocent, is the worst thing you can do. Here’s what you need to know.

Do You Have to Talk to Police?

When the police approach you and start asking you questions, you don’t have to answer them. Remember, though, that police do have the right to temporarily question people without arresting them. Under Wisconsin law, when a police officer identifies him- or herself as a law enforcement officer, he or she can stop you on suspicion that you’re committing, about to commit, or have recently committed a crime. The officer has the right to demand your name and address, as well as an explanation of your conduct – but you don’t have to provide any of that information.

However, if you choose not to provide any of that information, you may make the officer suspicious. It may appear as if you’re hiding something.

You can ask the officer if you’re free to leave. If he or she says yes, you can walk away – but you definitely have to do so calmly and slowly while keeping your hands in sight. You should be respectful at all times for your own safety.

If the officer says you’re not free to go, it means he or she believes there is a reasonable suspicion about you. (And again, sometimes refusing to say who you are or what you’re doing in the area can make the police officer suspect that you’re hiding something.) When an officer has a reasonable suspicion, he or she can pat you down or frisk you to search you. You should never physically resist a police officer; instead, say out loud (but politely) that you do not consent to a search.

Keep in mind that police are trained to keep suspects talking while they’re searching them. You can simply say, “I don’t want to talk.”

If the police end up arresting you, you still don’t have to talk to them. You can simply let them know that you won’t be answering any questions until you’ve had the chance to talk to your attorney.

Were You Arrested in Wisconsin?

If you’ve been arrested, remember that it’s better to say nothing at all – even if you’re completely innocent. Never, ever confess to the police, no matter what they promise you; they have no authority to make things easier on you or get a judge to pass a lighter sentence, regardless of what they say.

Instead of talking to police, you have every right to talk to a lawyer. Call us at 414-383-6700 if you’ve been arrested for any reason – we may be able to help you.

Carlos Gamino

By |2021-08-08T13:11:02-05:00November 16th, 2019|Criminal Law|Comments Off on Do You Have to Talk to Police if They Question You?

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