NEW WISCONSIN DRUNK DRIVING PENALTIES

The penalties for driving under the influence of an intoxicant and driving with a prohibited alcohol concentration were made harsher effective July 1, 2010.  Here is a summary of the changes that apply to violations that occur on or after July 1, 2010.

A fourth offense Operating While Intoxicated (OWI) is a felony if it occurs within five years of an earlier offense.

Ignition interlocks devices (IIDs) are required for repeat offenders, all refusals and first-time offenders at or above a 0.15 blood alcohol level.  IIDs are required for every vehicle owned by or registered to the offender, unless the vehicle is specifically exempted by the court.

IIDs must be ordered for a minimum of one year.  For operating privilege, restriction begins when offender is issued an occupational license or reinstates operating privilege (cannot "wait out" IID anymore).

First offense OWI is a misdemeanor if a child under 16 is in the vehicle.

During the IID order, the Prohibitive Alcohol Concentration (PAC) is 0.02.

Wisconsin OWI Sentencing Guidelines

The State of Wisconsin is divided into ten judicial districts.  Each judicial district adopts advisory guidelines for OWI cases in that district.  This guideline procedure was held constitutional in State v. Jorgensen, 2003 WI 105, 264 Wis.2d 157, 667 N.W.2d 318.  The guidelines are not mandatory in each case.  Some judges follow the guidelines rigorously, other are more flexible.  A link to the various guidelines for each district are set forth below:

District 1 OWI Guidelines (Milwaukee County)

District 2 OWI Guidelines (Kenosha, Racine and Walworth Counties)

District 3 OWI Guidelines (Jefferson, Ozaukee, Washington and Waukesha Counties)

District 4 OWI Guidelines (Calumet, Fond du Lac, Manitowoc, Sheboygan and Winnebago Counties)

District 5 OWI Guidelines Before July 1, 2010 (Dane, Green, Lafayette and Rock Counties)

District 5 OWI Guidelines After July 1, 2010 (Dane, Green, Lafayette and Rock Counties)

District 6 OWI Guidelines Before July 1, 2010 (Adams, Clark, Columbia, Dodge, Green Lake, Juneau, Marquette, Portage, Sauk, Waushara, and Wood Counties)

District 6 OWI Guidelines After July 1, 2010 (Adams, Clark, Columbia, Dodge, Green Lake, Juneau, Marquette, Portage, Sauk, Waushara, and Wood Counties)

District 7 OWI Guidelines (Buffalo, Crawford, Grant, Iowa, Jackson, La Crosse, Monroe, Pepin, Pierce, Richland, Trempealeau and Vernon Counties)

District 8 OWI Guidelines Before July 1, 2010 (Brown, Door, Kewaunee, Marinette, Oconto, Outagamie and Waupaca)

District 8 OWI Guidelines After July 1, 2010 (Brown, Door, Kewaunee, Marinette, Oconto, Outagamie and Waupaca)

District 9 OWI Guidelines Before July 1, 2010 (Florence, Forest, Iron, Langlade, Lincoln, Marathon, Menominee, Oneida, Price, Shawano, Taylor and Vilas)

District 9 OWI Guidelines After July 1, 2010 (Florence, Forest, Iron, Langlade, Lincoln, Marathon, Menominee, Oneida, Price, Shawano, Taylor and Vilas)

District 9 OWI Guidelines - Municipal

District 10 OWI Guidelines Before July 1 2010 (Ashland, Barron, Bayfield, Burnett, Chippewa, Douglas, Dunn, Eau Claire, Polk, Rusk, St. Croix, Sawyer and Washburn Counties)

District 10 OWI Guidelines After July 1 2010 (Ashland, Barron, Bayfield, Burnett, Chippewa, Douglas, Dunn, Eau Claire, Polk, Rusk, St. Croix, Sawyer and Washburn Counties)

Frequently Asked Questions

Do I have to have a blood/breath alcohol content of .08% or more to be charged with drunk driving?

No.  In Wisconsin, what most people call "drunk driving" actually consists of two separate charges, operating while intoxicated (OWI) and operating with a prohibited alcohol concentration (PAC). To be convicted of OWI, the prosecutor must prove that you operated a motor vehicle on a public highway or other prohibited place while "under the influence" of alcohol, drugs or both. A driver is considered "under the influence" when his or her ability to operate a vehicle is "impaired" by alcohol, drugs, or both. Impairment, however, does not necessarily depend on a BAC of .08% or greater. For example, someone who has a relatively low tolerance for alcohol may suffer impairment with a BAC of .07%.

It is important to remember that the question of impairment depends to a large extent on opinion evidence. The police officer may hold the opinion that your speech is slurred or that your balance is unsteady. And, based on this opinion, the officer may conclude that you are "impaired." You or another witness may hold the opinion that your speech is not slurred, nor your balance unsteady. Remember, the police officer’s opinion is just that, an opinion. The jury makes the final decision about whether there is enough evidence to conclude that you were impaired.

The second "drunk driving" offense in Wisconsin, operating with a prohibited alcohol concentration (PAC), depends entirely on the amount of alcohol in your system (or restricted controlled susbtance) at the time you operated a motor vehicle on a public highway or other prohibited place.

Most police departments test your alcohol content by a breath or blood test. These tests, however, are not perfect. Machines malfunction, officers sometimes fail to correctly administer the test, and external factors may skew the test results. Also, the alcohol tests only claim to measure your breath or blood alcohol concentration at the time of the test. But, alcohol in your system is always changing. The alcohol concentration in your system at the time of the test is not necessarily the same as it was at the time you were driving. You cannot be convicted of a PAC offense unless the prosecutor can prove that you had a prohibited alcohol concentration or restricted controlled substance in your system at the time you operated a motor vehicle in a prohibited place.

Do I need to "drive" a moving vehicle to be charged with drunk driving?

No.  Wisconsin law prohibits "operating" a motor vehicle while intoxicated or with a prohibited alcohol concentration. "Operate" generally means to manipulate any of the controls necessary to put the vehicle in motion. So, turning the key in the ignition, even if the car does not move, amounts to operation under Wisconsin’s drunk driving law. However, the question of operation gets tricky, especially if a witness did not observe the vehicle in motion or observe you manipulate the vehicle’s controls. If you have any question about whether your conduct amounts to "operation" as defined by the law, contact Madison drunk driving attorney Robert T. Ruth.

Can I get charged with drunk driving in a parking lot?

Yes, however, only in certain parking lots. If you were stopped for drunk driving in any area other than on a public road, you should contact Madison DUI defense attorney to review your situation to determine if you were stopped in a prohibited area.

Can the police stop my car for any reason?

No.  In most cases, to stop your car, the police either need a warrant, or they must have a reasonable suspicion that you committed or are in the process of committing a criminal or traffic offense. And, in most cases, if they don’t have a warrant or reasonable suspicion, any evidence that was obtained as a result of the illegal stop cannot be used against you. So, even if you were operating under the influence, if the stop of your vehicle was illegal, your case may be dismissed.

Since every case depends on unique facts, it is impractical to list all of the possible reasons why the stop of a vehicle may be illegal. However, if you were charged with drunk driving after the police stopped your vehicle, you should contact Madison DWI defense attorney Robert T. Ruth to investigate your specific situation.

Can the police require a breath or blood test for any reason?

No.  Under the implied consent law, to demand a breath or blood test, a police officer must have probable cause to believe that you violated one or more driving related offenses and must have arrested you for that offense. In some cases, the police may also force a breath or blood test if they have probable cause to believe that there is evidence of a crime in your blood or breath. However, the area of compelling breath or blood tests is complicated and fact specific. If you submitted to a breath or blood test, or refused to do so, you should contact Madison drunk driving defense attorney to discuss your specific situation.

If I was previously convicted of drunk driving, will a new offense for drunk driving count as a second offense?

Not necessarily. Beginning January 1, 1999, a second offense is generally defined as any offense that occurs within 10 years of a previous offense. The 10 years is calculated from the date that the offenses occurred, not the dates of conviction. No offense that occurred before January 1, 1988 counts as a prior offense.

Additionally, some unconstitutionally obtained convictions do not count as prior drunk driving offenses. So, before you accept a previous OWI conviction as a prior offense, you should have the specific facts of the previous conviction reviewed by a qualified WI DWI attorney.

Do I need a DUI attorney, DWI attorney, OWI attorney or drunk driving attorney?

Drunk driving is known by many names.  In Wisconsin, the official name is operating under influence of intoxicant or other drug.  This is commonly abbreviated OWI and PAC.  The PAC stands for prohibited alcohol concentration.  Some individuals refer to the offense as driving while intoxicated or driving while impaired, abbreviated DWI.  Others refer to it as driving under the influence, or DUI.    Do not get hung up on these names, whether you think need an Madison OWI lawyer, a Madison DWI lawyer a Madison DUI lawyer or a Madison drunk driving lawyer, contact Madison attorney Robert T. Ruth. 

Penalties in Wisconsin

There are many intricacies to Wisconsin’s drunk driving penalty structure. So, in any particular case, you should contact a qualified defense attorney to advise you of the possible penalties in your case. Also, the penalties for drunk driving regularly change. The information provided below sets forth a basic outline of the drunk driving penalty structure for individuals 21 years of age or older.

First Offense

    • Forfeiture of $150-300, plus costs and assessments
   • 6-9 month license suspension
   • Mandatory alcohol assessment/driver safety plan
   • Six points assessed against driver’s license
   • Major traffic offense counted against driver’s license
   • Court may order restitution
    • Minimum 1 year ignition interlock device if the BAC was .15 or higher

Second Offense

    • Forfeiture of $350-$1,100, plus costs and assessments
   • Imprisonment for not less than 5 days nor more than 6 months
   • 12-18 month license revocation
   • 60-day to 12 month waiting period to obtain occupational license
   • Mandatory alcohol assessment/driver safety plan
   • Six points assessed against driver’s license
   • Major traffic offense counted against license
    • Court may order restitution

Third Offense

    • Forfeiture of $600-$2,000, plus costs and assessments
   • Imprisonment for not less than 30 days nor more than 1 year
   • 24-36 month license revocation
   • 90-day to 12 month waiting period to obtain occupational license
   • Mandatory alcohol assessment/driver safety plan
   • Six points assessed against driver’s license
   • Major traffic offense counted against license
   • Seizure and forfeiture of vehicle or ignition interlock device
   • Court may order restitution

Fourth Offense

• Forfeiture of $600-$2,000, plus costs and assessments
• Imprisonment for not less than 60 days nor more than 1 year
• 24-36 month license revocation

• 90-day to 12 month waiting period to obtain occupational license
• Mandatory alcohol assessment/driver safety plan
• Six points assessed against driver’s license
• Major traffic offense counted against license
• Mandatory seizure and forfeiture of vehicle

• Fourth offense is a felony if the last violation occurred within 5 years.

Fifth or Sixth Offense

• Forfeiture of $600-$10,000, plus costs and assessments
• Imprisonment for not less than 6 months nor more than 6 years
• 24-36 month license revocation
• 90-day to 12 month waiting period to obtain occupational license
• Mandatory alcohol assessment/driver safety plan
• Six points assessed against driver’s license
• Major traffic offense counted against license