Drunk Driving:  OWI Basics

In every state, it is illegal for a driver to operate a motorized vehicle, whether it is a car, truck, motorcycle, boat, or commercial vehicle, while impaired by the effects of alcohol or drugs. In Wisconsin, a drunk driving offense is referred to as 'OWI' charges, which stands for 'Operating While Intoxicated'.

A person may be charged with an OWI if they are driving a motorized vehicle and their ability to safely operate the vehicle is impaired by the effects of alcohol, illegal drugs, prescribed medications such as painkillers, or even over-the-counter medications such as antihistamines; or if the driver is intoxicated at a level above established OWI standards, such as the prohibited blood-alcohol concentration (BAC) levels, which in Wisconsin is .08 for a first, second, or third offense and .02 for a fourth and higher offense or for those subject to ignition interlock device (IID) orders.

Field Sobriety and Chemical Tests for OWI

If a law enforcement officer stops a vehicle and suspects that the driver may be intoxicated, the officer may conduct a series of "field sobriety" tests on the driver, and may ask for his or her consent to some form of chemical test for intoxication.

Field sobriety tests usually involve a police officer asking a driver to perform a number of tasks that assess any impairment of the person's physical or cognitive ability. Examples of field sobriety tests include having the driver walk a straight line, heel to toe; having the person stand on one leg for up to 30 seconds; and the officer's use of the "horizontal gaze nystagmus" (eye and penlight) test.

OWI chemical tests can be conducted by using an Intoximeter (breath test machine) that measures a driver's blood-alcohol concentration (BAC), or at a hospital, where urine and blood tests may be performed.

WISCONSIN OWI LAWS

Refusing a Chemical Test: "Implied Consent" Laws

Wisconsin has "implied consent" laws that require vehicle drivers to submit to some form of chemical test, such as breath, blood, or urine testing, if suspected of OWI. State legislators make these laws based on the logic that driving is a privilege and by accepting that privilege drivers effectively give their consent to OWI testing if it is reasonable to believe that the driver is under the influence of alcohol or drugs.

Implied content laws also establish penalties if a driver refuses to submit to testing; these penalties may include mandatory revocation of a driver's license, for a minimum of 1 year up to 3 years. Often, license sanctions for test refusal are more harsh than those imposed after OWI test failure.

Wisconsin "Per Se" Laws

Wisconsin law provides that any driver with a blood-alcohol concentration level about .08 is 'per se intoxicated', which means that if a driver has a BAC of .08, it is deemed that the driver is intoxicated and no additional proof of driving impairment is necessary for the officer to arrest and charge the driver with OWI.

A driver may be arrested for OWI without proof of 'per se intoxication' when other evidence of impaired driving is shown. For example, if a driver has a .06 BAC level, but was swerving or driving in an otherwise inappropriate manner and other evidence, such as slurred speech and inattention during questions were evident, an officer may arrest the driver on an OWI charge.

Wisconsin "Zero Tolerance" Laws

Wisconsin also provides a 'zero tolerance' law, which allows an officer to charge a person under the legal drinking age of 21 years with an OWI if the person was operating a vehicle and had any trace of alcohol in their system (BAC = 0.0).

The Penalties for OWI Conviction

First Conviction: In addition to facing a high monetary forfeiture and other associated court costs, your driving privileges will be revoked for 6 to 9 months following your first OWI conviction in Wisconsin. You will also be required to attend a mandatory alcohol education program and an alcohol treatment program. Additionally, your insurance company may increase your rates to an unmanageable level or you may lose coverage.

First Conviction (with minor passenger):  A first offense OWI conviction where a person under age 16 was present in the vehicle is a criminal offense, and the penalties are similar to those for a second offense conviction: a minimum of 5 days to 6 months in jail, $350-$1,100 in fines plus associated court costs.

Second Conviction: A second OWI conviction results in driving privileges being revoked for 12 to 18 months, a minimum of 5 days to 6 months in jail, $350–$1,100 in fines plus associated court costs, vehicle immobilization with an ignition interlock device (IID) for 12 to 18 months, and mandatory alcohol treatment.

Third Conviction: A third OWI conviction results in driving privileges being revoked for 2 to 3 years, 45 days to 1 year in jail, $600–$2,000 in fines, vehicle immobilization with an ignition interlock device (IID) for 12 to 36 months, and mandatory alcohol treatment.

Fourth Conviction (five years or more since last conviction): A fourth OWI conviction results in driving privileges being revoked for 2 to 3 years, 60 days to 1 year in jail, $600–$2,000 in fines, vehicle immobiliation with an ignition interlock device (IID) for 12 to 36 months, and mandatory alcohol treatment.

Fourth Conviction (less than five years since last conviction), Fifth Conviction, or Sixth Conviction: These are Class H felonies in Wisconsin. They result in a 2 to 3 year license revocation, 6 months to 3 years in jail, and $600–$10,000 in fines.  A maximum of 3 years of extended supervision is possible.

Seventh Conviction, Eighth Conviction, or Ninth Conviction: These are Class G felonies in Wisconsin.  They result in 3-5 years in prison, with a maximum of 5 years of extended supervision, and up to $25,000.00 in fines.

Tenth Conviction: This and subsequent OWI convictions are Class F felonies.  They result in 4-7.5 years in prison, with a maximum of 5 years of extended supervision, and up to $25,000.00 in fines.  

OWI Causing Injury: An OWI conviction resulting in an injury is punishable by $300-$2,000 in fines, 30 days to 1 year of imprisonment (up to 6 years for those with a prior OWI conviction).

Criminal Penalties in Wisconsin

Wisconsin law provides criminal penalties, including fines, jail time, license revocation, and sometimes probation, for an OWI conviction. If convicted, the state prescribes minimum penalties for first and subsequent offenses, which vary according to the circumstances that can be proven, such as:

• The driver's history of OWI violations and convictions;
• If a commercial vehicle was being used at the time of the OWI;
• Whether the OWI violation occurred while there was a child in the vehicle;
• Whether the OWI violation occurred simultaneously with another dangerous moving violation, such as reckless driving;
• If the OWI violation involved a car accident;
• If another person was injured or killed; and
• Whether the driver was under the legal drinking age at the time of the OWI violation.

Driving Privilege Penalties

In addition to criminal penalties, Wisconsin law also provides for administrative sanctions. An OWI arrest or conviction may have a very negative impact on driving privileges with the possibility of an immediate suspension by the department of motor vehicles; the same could apply to any person refusing to submit to chemical tests.

The driver's vehicle may also be confiscated or impounded, and the OWI offender will likely incur significant costs. This loss of driving privileges can occur even before an OWI conviction.

As with criminal penalties, the impact of an OWI arrest or conviction on driving privileges will vary according to the driver's history of OWI violations and the severity of the offense.

Getting an Attorney's Help

The legal system is complex and, while you have the constitutional right to represent yourself, it is likely you have never set foot in a courtroom to face prosecution if this is your first OWI offense. If this is a second or third offense, then you already know the crucial reasons and tremendous advantages of having a highly experienced OWI defense attorney.

Unlike a civil proceeding, in which money or property may be at stake, people charged with an OWI in Wisconsin are charged with a crime, facing the possibility of jail time and driver's license revocation. A person charged with a crime requires expert skills of a highly skilled and extensively experienced criminal defense attorney.

Attorney Stephen E. Mays practices in all areas of criminal and traffic defense throughout the entire State of Wisconsin. If you have been charged with drunk driving (DUI, OWI, or DWI), call drunk driving defense attorney Stephen E. Mays today for a free case review.