FAQ

Initial Consultation

Can I get a free initial consultation?

Yes. Birdsall Law Offices always offers a free initial consultation. Please contact attorney John Birdsall to set up a phone or in-person consultation to discuss your case. We specialize in all criminal matters, including drunk driving, sex crimes, drug crimes, assault & battery, computer crimes, theft, homicide, and more. Whether you’ve just been accused of a crime, are appealing a previous conviction, or challenging a sentence, we’ll put our experience to work to protect you and your reputation and to defend your rights.

Birdsall Law has offices in Milwaukee and Green Bay, Wisconsin, and practices statewide.

What are your hourly fees?

Most cases are taken on a flat-fee basis, which is paid up front as most cases proceed very quickly.
Work is not usually billed on an hourly basis.

What documents should I bring with me to the initial consultation?

    • A copy of the criminal complaint
    • Your bond, which shows conditions that must be followed
    • Any police reports
    • A list of witnesses who may have been present or who may have pertinent information about your case
    • A written draft by you of the events that took place, which will allow us to evaluate for legal issues and will clarify events in your mind (subject to attorney-client privilege and will not be shared)
    • In the case of an appeal, a copy of the Judgment of Conviction, any transcripts from the trial, and everything from your trial attorney’s file

Do you handle Wisconsin DUI, OWI, and other traffic matters?

Yes. A large majority of the cases we handle deal specifically with drunk driving.

When you’ve been charged with drunk driving, there are many instances in which you have a solid defense. We can help you craft that defense and plead your case.

Challenges can be made to breath and blood tests and can include questioning the underlying science and design of the machine used to do the test; the way it was maintained and operated; and even the day or night it was used. Field sobriety tests (walk and turn, finger to nose, etc.) are notoriously inaccurate barometers of intoxication and can be heavily challenged in court.

It is important to remember that 2nd, 3rd and 4th drunk driving offenses carry mandatory jail time, and a 5th offense is a felony which could land you in the Wisconsin State Prison System. Even with these established penalties, it is crucial that an experienced criminal defense lawyer is on your side and available to help you.

Do you handle drug and/or sexual assault cases?

Yes, and we have extensive experience dealing with both types of cases.

Drug cases almost always have an issue regarding an illegal search by police of a person, car, house, or some container. The issue can be whether the search was justified or “reasonable,” and if so, whether the police exceeded the scope of the search. In the event of a wiretap, which most often occurs in larger, federal drug cases, prosecutors must apply for these and they must be authorized by the court. If the government misrepresents its need to do a wiretap, or if it exceeds the scope of the order, anything incriminating may be suppressed as evidence and not be allowed at the trial.

Almost all sexual assault cases involve “other acts,” allegations of similar conduct that occurred prior to the current case, being allowed into evidence by the court. In addition, prior false accusations by the “victim” must be explicitly confronted. Many sexual assault cases are built on lies and/or misidentification that is often aggravated by the conduct of police in handling line-ups and/or witness statements.

Do you handle civil rights or personal injury cases?

No. These areas of law, like criminal defense, are specialized. We can refer you to an experienced lawyer with a track record of winning who will be able to handle your case.

What types of cases do you handle?

We represent people against any type of criminal charge, criminal appeal, post-conviction motion, or drunk driving charge. Below is a list of some of the frequent cases we handle.

        • Drunk Drivingfirst offense, 2nd, 3rd and 4th misdemeanor offenses, and 5th and subsequent felony offenses
        • Drug Crimes – including possession, possession with intent to sell, and conspiracy
        • Sex Crimes including possession of child pornography and sexual assault
        • Homicide including vehicular homicide, negligent homicide and felony murder
        • White collar crimes – including embezzlement and fraud crimes

About Court

I have a preliminary hearing tomorrow. What should I do?

Never, ever try to represent yourself. If you are forced by circumstances to go to court without legal counsel, ask the court for an adjournment so that you can get an attorney. Seek the services of a lawyer who is experienced in criminal law and has a record of success. While no lawyer can ever guarantee a specific outcome (and beware of one who does), an experienced attorney can mount legal defenses and constitutional challenges that you simply would not think of or know to apply. This will give you a much better chance of winning your case.

I was just sentenced and I want to appeal. What is my next step?

If you wish to appeal your case, have your trial attorney file a Notice of Intent to Seek Post-Conviction Relief. This must be done within 20 days of sentencing. Once this has been done, seek the services of an attorney who specializes in criminal law and will be able to analyze the issues that may have a chance at appeal. These issues include illegal searches and seizure, lack of probable cause to stop or arrest, or a coerced confession.

The appellate attorney must order the transcript and file a Motion for Post-Conviction Relief with the trial court, or if the issues have been sufficiently addressed at the trial, file a Notice of Appeal with the Court of Appeals. Be aware that winning appeals is extremely time-consuming and intricate work, and it’s important that an experienced attorney with a proven track record is the one to handle your appeal.

About Federal Court

What is a Grand Jury?

A grand jury is a jury of up to 23 people, rather than just the 12 you think of in a trial. The grand jury meets in secret in a room with only a prosecutor, a witness, and a court reporter (someone who types every word that is said). There is no judge and no defense lawyer. Even the witness cannot have a lawyer in the room. It is a one-sided event.

The grand jury does not decide whether a person is guilty. It decides only to charge him using the lower standard that he is probably guilty. The grand jurors do that by majority vote; they do not all have to agree. A grand jury just OKs an “indictment,” which is the word for a written charge against someone given out by a grand jury. Next, there is a full trial on the indictment, if the defendant wants one. The government must prove the defendant guilty beyond a reasonable doubt to get a guilty verdict.

The defense cannot offer any proof to the grand jury. We cannot testify. The grand jury is one-sided and favors the prosecutor. Under federal law, the grand jurors, court reporter, and prosecutor are not allowed to say what went on in the grand jury room. Before the trial we get a copy of what grand jury witnesses said, if those witnesses will testify for the government at trial.

The word “grand” jury just means large. It is a French word. And at 23 people, a grand jury is larger than a trial jury of 12 (which also is called a “petit,” or small, jury. More French).

What are Sentencing Guidelines?

They are the rules that judges follow on federal sentences. If you are found guilty, the Sentencing Guidelines mostly will decide your sentence. So they really are not “guidelines” at all, but rules. There is a thick book that lists all the guidelines. You and your lawyers will look at it, more than once. The judge has to follow the book.

For starters, the guidelines give an “offense level” and a “criminal history category.” Offence levels are in points. The fewer points, the lower the sentence. Criminal history categories are in roman numerals, 1 through 6; again, the lower the better.

Offense level goes down the page and criminal history goes across the top of the page to make a chart or graph. Then you see where the offense level crosses the criminal history category, and there is the “guideline range.” It is in months: for example, one of the many ranges is “78 -97.” That means 78 months at the low end to 8 years, 1 month at the high end. This is just one example.

If the judge for some reason were sentencing his own sister, he would have to give her a sentence in that range. There are upward and downward departures, but those have special reasons and are rare.

The law that created the Sentencing Guidelines also ended parole in federal prison. So now a person serves his actual sentence, minus only 1 day off for every 7 days in after the first year (as “good time,” if the person behaves).

The Sentencing Guidelines are bad and good. They give prosecutors even more control, and the judges less, because the crimes the prosecutor chooses will heavily control the Sentencing Guidelines that apply.

But they also allow a person to plan a little more if he is found guilty. This is why. Under the crime itself, it might look like the sentence could be anywhere from 0 to 20 years in prison, for example. Before the Sentencing Guidelines, a person did not have any idea what his sentence might be in that huge range. Now, the guidelines let us narrow it down a bit. That allows you to plan for best and worst cases. You can better answer questions like how long will my girlfriend or wife have to stick around while I am gone? Will I definitely see my daughter graduate from high school, if not from 8th grade? Do I have enough saved to keep my house or car?

Congress and President Reagan put the Sentencing Guidelines in mostly to try to make sure that the same federal crimes get about the same sentences, no matter where in America they are. The Sentencing Guidelines have not worked so well in that way or at least they have been mixed. If you or your friends and family are interested, we can give you more information about groups that work to improve or get rid of the guidelines and other federal sentencing laws.

What is a "Career Offender"?

A “career offender” refers to one of the Sentencing Guidelines. Someone who was at least 18 when they committed a crime of violence or drug crime, and has at least two additional felony convictions for a crime of violence or a drug crime, is designated a “career offender.” That means a much longer sentence, sometimes up to 30 years to life (all without parole). It is like “three strikes, you’re out” laws.

Should I cooperate with the Government?

This may be the hardest decision any person accused of a federal crime has to make. In some ways, it is harder than deciding to plead guilty, because cooperating usually means pleading guilty and helping to convict other people who may be friends or even family members.

Some people who cooperate and become government witnesses can reduce their punishment that way. If you committed a crime, you know the government can prove you did, and you feel very badly about what you did, you may want to cooperate and reduce your sentence. But keep this in mind: You will have to tell the absolute truth to the police, federal prosecutors, and maybe a jury – even when it hurts people you may love or care about.

In rare cases, cooperation also can be dangerous. Think of the words we use for people who commit a crime, but then turn government witness: rat; snitch; turncoat; stool pigeon; informer. These are bad words because many people view cooperating with the government as a dirty choice. It is a dirty choice if someone falsely blames others for his own crime, or stretches the truth to cut his own sentence. That is one reason why it is so important to tell the absolute truth if you cooperate with the government.

The other reason why you must tell the absolute truth if you cooperate is that the government gets to back out of your deal and use your words against you if you lie. Then you are in a worse position than had you just gone to trial.

Talk with your lawyer many times and think very hard before deciding to cooperate with the government (or deciding not to). If you begin to cooperate, remember: there is no turning back. You must tell the whole truth and hope for the best.

What should I know about conspiracy?

Many federal criminal cases include a conspiracy charge. A conspiracy is an agreement between two or more people to commit a crime. The crime itself does not have to happen for the conspiracy to be illegal.

Federal prosecutors like conspiracy because they can prove it with the word of witnesses alone, including with hearsay. Sometimes the prosecutors use telephone records, receipts, and things like that to help. They also can put many smaller players into a conspiracy charge. Those people face the same penalty as the big players.

Most importantly, prosecutors do not always need things to show the jury as evidence when they charge conspiracy. For example, in a drug conspiracy, the prosecutors do not need any drugs to show. The word of witnesses alone, even witnesses who were involved in the crime themselves, is enough.

Conspiracy charges are very hard to defend, but not always impossible. You always should take a conspiracy charge very seriously. Your lawyer will, with good reason.

What do I do as a witness?

If you testify at all, you tell the truth. Period.

But you do not always have to testify. The Fifth Amendment to the United States Constitution allows you not to incriminate yourself, which means you do not have to say anything to the government (including to a judge, prosecutor, law enforcement officer, grand jury, or jury) that could help them to prove you committed a crime. This applies to witnesses – in fact, to everyone.

The only way someone can be forced to testify, if he might be helping the government prosecute him by talking, is if he is given immunity. Very generally, that means the person’s words cannot be used against him by the government.

But there are different types of immunity, some not as good as others. the differences between them are confusing. NO ONE SHOULD TRY TO GET IMMUNITY WITHOUT A GOOD CRIMINAL DEFENSE LAWYER.

The police and law enforcement agents NEVER can give you immunity! Only prosecutors and judges can.

Unless your lawyer tells you that you have immunity, and explains to you why and how,assume you do NOT have it. Almost always, there will be a piece of paper saying in writing what kind of immunity you have. Again, if you do not have the piece of paper, or do not hear a judge say it, you do not have immunity.

If you have to appear in the grand jury without immunity, and your lawyer advises you not to testify, say the following in response to each question after your name and address:

On advice of my lawyer, I rely on the Fifth Amendment and will not answer.

About Police, Questioning, Searches, and Arrests

I or a loved one was just arrested. What should I do?

If you or someone close to you has been arrested, there are immediate steps that you should take:

Find out what charge is being brought against you, and get a copy of the criminal complaint. You can get this from the court file at the clerk’s office since these are public documents. This will give you a brief summary of the charges against you and who the witnesses are.

Find out when your next court date is and, if possible, which judge will be presiding over your case.

Ask if the charge is for a misdemeanor or a felony. A felony will require you to be held in police custody until you appear in court, while a misdemeanor usually allows for immediate bond.

Seek legal help immediately, taking care to find an attorney who is experienced in criminal law.

Do not speak to anyone except your attorney, as everything you say can and will be used against you. This includes cellmates, lovers, friends, parents, siblings, and neighbors. By talking with anyone besides your lawyer, you risk turning them into potential witnesses, which will complicate the case.

The police are at my door right now and want to question me. Should I talk?

No. Most cases that end up being charged criminally are the result of interrogations such as this. It’s almost always a bad idea to talk to police until after you know what they’re looking for, even if you believe you’re not in trouble or that you’ve done nothing wrong.

It’s vital to seek the help of a lawyer who specializes in criminal law and understands police tactics. When interrogating you, the police will often lie about evidence, pressure you, threaten you with arrest, assure you that all will be easier if you simply confess, or even tell you that you will “feel better after you confess.”

Keep in mind that anything you say may be used to incriminate you. Seemingly harmless statements such as “I may have hit the guy” and “I had a beer a few hours ago” may turn into “the suspect admitted to hitting the victim” and “the suspect had been drinking.”

Especially if you are nervous, tired, scared, or under the influence, it is best to exercise your Fifth Amendment right to silence until you’ve consulted a lawyer.

The police are at my door right now and they want to search the house. Should I allow them inside?

No. Instead, demand a warrant. This requires that the police go to a judge and show probable cause that evidence of a crime is in the house, and they must be able to detail what that evidence is. If you consent to a search without a warrant, you will lose your right to challenge the search in court. Warrants can only be issued using “reliable” information. If the search is illegal, you can bring a motion to suppress as evidence anything that was taken, meaning it will not be allowed at your trial. Even if you think you have nothing to hide, you have nothing to gain by consenting.