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Stand In Defense for War Veterans Charged with DUI OWI

By Andrew Mishlove on March 02, 2012


Let’s Really Honor Our War Veterans. Politicians Are Hypocrites. MADD Should Take a Stand for War Veterans

Politicians and MADD lobbyists pay lip service to patriotism but they refuse to take a stand in defense of war veterans. Let me start out by defining just who it is that I am attacking: politicians and lobbyists. I do not mean every person who is elected to office or who has a government position. I do not mean every person who argues against drunk driving. That would be over-generalizing. I do, however, include all of those legislators, judges, prosecutors and so-called do-gooders who so glibly talk about patriotism but do nothing to defend the war veterans who come into their sphere of authority. This type of hypocrisy is rampant.

Let me outline the problem.

Many war veterans come home with mental and emotional injuries that cause or contribute to legal difficulties. These great Americans volunteered to risk their lives for us; and they have earned extra consideration from the criminal justice system. They are not getting enough of it.

It is a big problem.

War veterans make up a tiny percentage of our population, but they are over-represented among criminal defendants. In my OWI DUI practice, I have represented many war veterans. I make a point of drawing them out about their war experiences and how it might affect their case.

I had a client who was one of the first Marines to go into Iraq. He was among a company of men who discovered a mass grave where Saddam buried his victims. This brave sergeant suffered many physical war injuries. His lungs were damaged from gas released by an IED. His eardrum was shattered from the noise. He had shrapnel in his leg. His coordination was affected as was his balance. I have heard stories like this time and time again. More significant than the obvious physical injuries are the neurological and psychological injuries.

Just as sports leagues are only beginning to recognize the long-term effects of concussion, so is the military. Every time one of these soldiers is near a large explosion (and this sergeant had been near more than a dozen of them) he may suffer a traumatic brain injury (TBI): a concussion. For years, this went unrecognized, undiagnosed and untreated by the military. The effect on the lives of these soldiers is just starting to be understood.

We should also consider the effects of post-traumatic stress disorder. Many of these soldiers were either under fire on a daily basis or, at least, in battle zones on a daily basis. This went on for months at a time. These soldiers never knew who they could trust or when they might be attacked. Every bridge might harbor an insurgent. Every building might hide a sniper. Every road might be mined with an IED. All of these people faced death. All of them saw death and carnage. Many of them suffered dramatic emotional injury as a result. They became addicted to the adrenaline rush of danger. They could not sleep. They became depressed, angry, hostile and withdrawn.

They became addicted to alcohol and drugs.

These people are heroes, not criminals. The alcohol and drug-related behavior that gets them into trouble with the law is the direct result of the sacrifices they voluntarily made in service to America. They need help understanding and treatment. They need to be honored for what they have endured for us, not punished. They have earned this many times over.

Nevertheless, in OWI DUI cases, prosecutors rarely, if ever, are willing to dismiss or reduce a charge for a war veteran. To be sure, there are “veteran’s courts” in the state. Veterans will get a break on sentencing. In OWI DUI cases, however, the worst consequence is often simply having the record and the driver’s license revocation. I have yet to see a prosecutor or a judge that was willing to even discuss these consequences to a veteran. They argue that Wisconsin law does not permit “plea bargaining” and that there is no exception for veterans. Wis. Stats. sec. 967.055 states that an OWI DUI charge may not be reduced or dismissed by the prosecutor, unless it would be in the interest of deterring people from committing drunken driving. This law is interpreted as prohibiting war veterans from being treated with the dignity and honor that they deserve.

I have made it a point to argue that post-traumatic stress disorder and traumatic brain injury related to military service are mental diseases that constitute a complete defense to the charge of OWI DUI. If a soldier cannot control his alcohol use because trauma suffered in war, he should not be convicted of an OWI DUI. In my law firm, we will do these cases for no fee, pro bono publico, when it is appropriate.

I call on prosecutors, judge, legislators and lobbyists to put up or shut up. Give these war veterans the break they truly deserve. Stop paying lip service to patriotism while doing nothing to defend war veterans who are entitled to your help. I call on the legislature to amend Wis. Stats. sec. 967.055, to specifically exempt injured war veterans, allowing them to be diverted into a treatment program rather than prosecuted. Finally, I specifically call on MADD to put up or shut up; either support sensible proposals for our war veterans or stop pretending to support them.

Andrew Mishlove March 1, 2012

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