Wisconsin OWI/DUI Lawyers

You Are OWI (Operating While Intoxicated) in Wisconsin if your blood alcohol content (BAC) is .08% or greater, if this is your first offense.

You probably received two tickets: One of these is the OWI ticket for operating a motor vehicle while under the influence of an intoxicant. The second is the PAC (prohibited alcohol concentration) ticket for operating a motor vehicle with a prohibited alcohol concentration. Penalties for both are identical.

You have ten work days from the date the tickets were issued to request an Administrative hearing, or you license will be automatically suspended.

Are You Really A First Offender?

To qualify as a first offender, you must have had no OWI or related violation for the last ten years in any state.

First Offender Penalties

Jail

None. An OWI/PAC first offense is considered an ordinance violation. It is not criminal and jail is not a penalty.

Fines / Fees

No less than $150.00 and no more than $300.00. Court costs increase the range from roughly $650.00 to $900.00.

Wisconsin Driver’s License Suspension

Revocation of driving privileges of no less than six months and no more than nine months.

Wisconsin Occupation Driver’s License

You are eligible immediately for an occupational operator’s license. If you are a first offender with no suspensions or revocations within the 12 months immediately prior to your application, you will probably get the occupational license.

An occupational operator’s license entitles you to drive to and from work, school, alcohol assessment and counseling, and sometimes other tasks. However, you are allowed no more than 60 designated driving hours per week and no more than 12 designated hours per day. You can apply for an occupational license at the Motor Vehicle Department.

Education

Traffic Safety School: tuition ranges from $90 to $250.

Alcohol Evaluation / Treatment

Alcohol assessment and counseling is mandatory. You will pay assessment and counseling fees. The assessment is standard, but the counseling is tailored to each person. You must pay all fees and complete the counseling program to end your driving suspension.

Commercial Driver

If you have a commercial license, and were operating a commercial vehicle, you became OWI if your blood alcohol content (BAC) was .04% or higher.

Under 21
You are OWI if you drive with any alcohol at all in your system. You will be arrested for any BAC of .02% or greater, and will be subject to penalties similar to those of any adult first offender.

Test Refusal
Requested breath and blood tests are mandatory. If you refuse, your license will be suspended for one year, and you must wait 30 days before applying for an occupational license.

If you refuse to provide the breath, blood or urine sample requested, the officer may threaten to hold you down and may actually hold you down in order to take a blood sample, according to court rulings.

Auto Insurance
You insurance will probably go up significantly, and your insurance carrier may drop you, forcing you to find a carrier that offer less coverage for more money. The rates for other family members, and perhaps even for your employer, may also increase.

Even Greater OWI Penalties
Even greater penalties are applicable if your OWI involved an accident, injury, or death, or if you had a minor 16 or under in the vehicle.

What is Wisconsin’s OWI’s law?

The term drunk driving is a bit of a misnomer in that the law encompasses more than just driving while drunk. In fact, a person need not be drunk at all, at least as far as that term is generally understood to mean as falling down drunk. Rather, the law prohibits a person from driving or operating a motor vehicle while under the influence of alcohol, a controlled substance, or a combination of alcohol and a controlled substance, or any other drug which makes a person less capable of safely driving.

Operating Under the Influence of an Intoxicant or Other Drug (OWI)
In this respect, the law does not specifically prohibit driving “drunk”; but more accurately prohibits driving under the influence, which is commonly referred to as “OWI” for operating while impaired or operating while intoxicated. Note that it is not necessary for an officer to actually see a person driving to being able to stop him or her for OWI. It is enough that a person has either turned on the ignition or has left the motor running while the vehicle is in the park position. In fact, the statutory definition of operation is “the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.” Further, the fact that a vehicle may be immobile due to engine problems or being stuck on a mound of dirt with the wheels spinning does not preclude an officer from arresting the driver for OWI.

The Legal Limit
The law also prohibits driving or operating with a prohibited alcohol concentration (PAC), commonly referred to as the a€?legal limit.a€ Effective September 30, 2003, Wisconsin’s legal limit is .08 for first, second, and third offense OWI. The legal limit will remain .02 on fourth and subsequent offenses. An .02 level is the functional equivalent of a€?absolute sobriety.a€ This essentially means that on a fourth offense, a person weighing less than 190 pounds, cannot legally drive after having one a€?drink.a€ A drink is equivalent to a 12-ounce bottle of beer, a 5-ounce glass of wine, or 1.5 ounces (a standard shot) of 80-proof liquor.

Counting OWI Offenses

All OWI offenses (this includes out of state convictions) since January 1, 1989, will count as follows:

If a person has two or more OWI violations after January 1, 1989, they will stay on the driver record permanently. However, if a person has one OWI violation within 10 years, then a subsequent OWI offense outside the 10-year period will be considered a first.

Once a person gets a third OWI-related offense, the two priors will count. In other words, a person could have two first offenses, but could never have three first offenses. The third is always a third, regardless of when the two priors occurred provided they were after January 1, 1989.

Effective September 30, 2003, if a person is convicted of a first offense OWI with an alcohol concentration of .08 or more but less than .10, the Wisconsin Department of Transportation is required to purge the offense from its records. Otherwise, all OWI-related records are to be kept permanently.

Vehicle Sanctions

Seizure and Forfeiture:

On a third and subsequent OWI-related conviction, a judge may order seizure of the vehicle used in the offense and owned by the person who committed the offense. The seized vehicle will be subject to forfeiture proceedings.

On a third and subsequent OWI-related conviction, a person who owns a vehicle that is subject to seizure must surrender the title to the vehicle involved in the offense to the clerk of courts to be stamped “Per section 346.65(6) of the Wisconsin statutes, ownership of this motor vehicle may not be transferred without prior court approval.” The title will be stamped and returned to the owner. Failure to surrender a certificate of title is subject to a $500 fine.

Ignition Interlock Devices:

Ignition Interlock Devices (IIDs) can be ordered as a license restriction on second and subsequent offenses or for a refusal of a chemical test under the implied consent law. Unlike vehicle seizure, IIDs are tied to a person’s operating privilege rather than to a particular vehicle.

An IID is a device that is installed in a vehicle as part of the starting mechanism, which requires the driver to provide a breath sample by blowing into the device. If the sample is above a set alcohol concentration level, the device will not allow the vehicle to start.

IIDs can be ordered for any length of time from one year to the maximum available revocation period for the offense. For example, on a fourth offense OWI, a court could order a two-year revocation and a three-year IID restriction. This would require the driver to have an IID even after he or she is finished with the occupational license period.

IIDs are installed at the defendant’s expense. It is a violation of the IID license restriction for a driver to have another person blow into the device or to operate any vehicle without an IID.

Immobilization

Immobilization is any device or mechanism that keeps the vehicle immobilized. For example, the “Club” could be installed on the steering wheel or the vehicle could be towed to an impound lot.

Immobilization may be ordered on second and subsequent OWI offenses for a period of one year to the maximum license revocation period allowed.

Defendants pay the cost of immobilization.

The Division of Motor Vehicles notes on its records that a vehicle is subject to immobilization as well as when it is actually immobilized.

Immobilization is restricted to the vehicle used in the OWI offense.

Fines and Penalties

First offense OWI is a forfeiture violation subject to a fine of $150 to $300, plus an OWI surcharge of $355, and license revocation from 6 to 9 months, except first offense OWI with an AC of .08 or more, but less than .10, there is no surcharge or other additional fees.

For example, first offense with an AC of .09 = $250 base deposit; whereas a first offense with an AC of .10 = $784 ($250 base deposit, $25 court cost, $60 penalty assessment, $10 jail assessment, $7 crime lab fee, $9 justice information fee, $68 court support services fee, $355 driver improvement surcharge).

Second offense has a fine range of $350 to $1,100 plus the $355 surcharge, jail from 5 days to 6 months, and license revocation from 12 to 18 months.

Third offense has a fine range of $600 to $2000, plus the $355 surcharge, jail from 30 days to 1 year, and license revocation from 2 to 3 years.

Fines for third and subsequent OWI offenses are increased according to the prohibited alcohol concentration as follows:

.17 – .199 = double fine ($1,200 – $4,000)

.20 – .249 = triple fine ($1,800 – $6,000)

.25 and above = quadruple fine ($2,400 – $8,000)

Fourth offense has a fine range of $600 to $2,000, plus the $355 surcharge, jail from 60 days to 1 year, and license revocation from 2-3 years.

Fifth and subsequent OWI is a felony offense. There is a mandatory minimum fine of $600 but not more than $2,000, plus the $355 surcharge, imprisonment of not less than 6 months or more than 5 years, and a license revocation of 2 to 3 years.

Fines, jail time, and revocation/suspension periods are all doubled for a person convicted of OWI when a person under age 16 is in the vehicle at the time of the offense.

All OWI offenses carry six demerit points, except chemical test refusals.

Occupational Licenses

On a first OWI offense, a person is immediately eligible to apply for an occupational license. There is no waiting period. On a second offense, there is a 60-day waiting period; and on third and subsequent OWI offenses, there is a 90-day waiting period.

An Application/Petition and Order for Occupational Operator License must be submitted to a Division of Motor Vehicles (DMV) service center, where it is processed and then forwarded to the DMV Compliance and Restoration Section for review. There is a $40 application fee and the person must file proof of future financial responsibility, usually in the form of an SR-22, or submit proof of insurance.

What if you are stopped for OWI?

The Stop

An officer need not suspect that a driver is operating under the influence to make an initial stop. It is enough if the person has violated a traffic law or has an equipment violation. It is not necessary for an officer to observe erratic or bizarre driving to make a stop. Improper driving is not an element of the OWI offense. Rather, two basic elements are required for an OWI conviction: (1) The defendant was driving or operating a motor vehicle; and (2) the defendant was under the influence of an intoxicant at the time. Therefore, what the officer observes after he or she encounters the driver will provide further evidence of possible impairment. For example, the officer may notice a strong odor of intoxicants about the driver, that the person has bloodshot or glassy eyes, that the person fumbles for his or her license, that the person’s speech is slurred or thick tongued, and that the person has a disheveled appearance. If the officer has reason to believe that the person may have been driving under the influence of alcohol or drugs, he or she will likely ask the person to get out of the vehicle and perform a series of field sobriety tests.

Standardized Field Sobriety Tests

The field sobriety tests will probably consist of a battery of three standardized tests: 1) walk and turn; 2) one-leg stand; and 3) Horizontal Gaze Nystagmus (HGN) or the “eye test,” which looks for pronounced jerkiness in the eyes induced by alcohol and other drugs. The combined three sobriety tests measure a person’s ability to perform various tasks requiring divided attention skills similar to those required in the driving task. If an officer identifies specific and objective indicators of impairment, the person will be placed under arrest. The officer will then request the person to submit to a chemical test of his or her blood, breath, or urine to determine the presence and quantity of alcohol or other drugs. Depending on which test is administered, the person will either be taken to the local police station or hospital. And depending on whether the agency making the arrest is city, county, or state will determine whether the vehicle is towed and impounded or simply moved off the street. The car keys will be returned when the person is released under one of the following circumstances: 1) after 12 hours have elapsed from the time of arrest; 2) a chemical test shows the person has an alcohol concentration of less than .04; or 3) to his or her attorney, spouse, relative, or other responsible adult at any time after the arrest.

What is Wisconsin’s Implied Consent Law?

The Implied Consent Law means that any motorist on Wisconsin’s highways has “deemed to have given consent to one or more tests of his or her breath, blood or urine, for the purpose of determining the presence or quantity in his or her blood or breath, of alcohol, controlled substances, controlled substance analogs or other drugs, or any combination of alcohol, controlled substances, controlled substance analogs and other drugs, when requested to do so by a law enforcement officer.”

To invoke the Implied Consent Law, an officer must read the Informing the Accused form to the person arrested for OWI. The arresting law enforcement agency must be prepared to administer two of the three chemical tests at its own expense. One of the two tests will be designated as its “primary” test. This will either be the Intoximeter EC/IR breath test or a blood test taken at a nearby hospital. If a person submits to the agency’s primary test, he or she is entitled to an “alternative test” that the agency must provide free of charge. Further, the person is also entitled to a test administered by a qualified person of that person’s choice at his or her own expense. However, a person is not entitled to either the alternative test or the test of choice if he or she does not submit to the agency’s primary test first.

Do you have to take a chemical test?

No. But a refusal on a first OWI offense will result in a one-year license revocation and a 30-day waiting period for an occupational license. In contrast, on a first OWI offense when the person takes the chemical test and is subsequently convicted, there will be a 6 to 9 month license suspension and no waiting period for an occupational license. Further, a chemical test refusal counts as an offense for purposes of determining how many prior offenses a person has. The only valid legal reason for a refusal is if the person is physically unable to submit to the test a€?due to a physical disability or disease unrelated to the use of alcohol, controlled substances, controlled substance analogs or other drugs.a€ That determination will need to be made by a judge at a separate refusal hearing.

What does an OWI conviction cost?

A lot. In Wisconsin, a first OWI is a civil offense with no jail time, subject to a forfeiture of $150 to $300, and a $355 surcharge. Subsequent offenses, second through fourth are criminal misdemeanor offenses, while fifth and above are felony offenses. Fines range from $350 to $10,000. A felony conviction is subject to imprisonment from 6 months to 6 years. Misdemeanor OWI sentences are served in the county jail and will range from 5 days to 1 year. In addition to the forfeiture or fine, an OWI conviction will include the following expenses*:

• $50 towing fee;
• $10 to $15/day vehicle impoundment/storage costs;
• $355 driver improvement surcharge, collected to help fund assessment, treatment, and driver improvement classes;
• $150 to $200 alcohol assessment fee;
• $40 occupational license application fee;
• $50 license reinstatement fee;
• $10 new driver’s license fee (only if renewing a suspended license; if reinstating a revoked license, must pay $50);
• $2,500 additional annual insurance premium costs;
• $2,500 to $5,000 in attorney fees.
• * Note: These are all approximate amounts and may vary depending on the jurisdiction in which a person is arrested or resides.

For more information, contact:
Resource Center on Impaired Driving
University of Wisconsin Law School
(608) 265-3411 or (800) 862-1048

Call 24/7 (800) 852-8005

Wisconsin DUI Attorneys