Like every one of its sister states, Wisconsin makes it a crime to drive while under the influence of alcohol or drugs. Its statutory scheme isn't completely novel, since it shares the prohibition of driving while impaired and driving with an over-the-limit blood alcohol concentration. But there are some provisions and penalties that differ from other state's laws. Anyone driving in Wisconsin should obtain a complete overview of the drunk driving and drugged driving offenses and the sanctions they risk if they violate the OWI law.
Wisconsin's OWI Law
Some states call their drunk driving laws "driving under the influence," and violations are referred to as DUIs. Others use "driving while intoxicated," or DWI. Wisconsin's law prohibiting drunk or drugged driving is referred to as the OWI law, since it is titled "operating while intoxicated."
That doesn't mean that the law is wildly different from DUI or DWI laws across the country. In fact, many of these laws are markedly similar to each other in basic ways. All of them outlaw driving with faculties impaired by alcohol or drugs.
All of them set a legal limit for drinking and driving based not on how many drinks a person imbibes, but on blood alcohol concentration (BAC) levels. And many of them make it illegal for a person to drive while using any amount of a controlled substance that could impair their driving. Wisconsin's OWI law does all three.
Wisconsin's OWI Prohibitions
Wisconsin's drunk driving laws make it an OWI to operate a vehicle while:
- The driver has a BAC above the legal limit, also known as a per se DUI.
- The driver is under the influence of any intoxicant or any controlled substance that makes the individual too impaired to drive as safely as they normally would.
- The driver has any detectable amount of certain restricted controlled substances, such as opioids or methamphetamine, in their system.
These elements are not unique; many states enact similar laws. But since each state has different definitions and sanctions, it is well worth a Wisconsin driver's time to read up on the state's drunk driving laws.
"Per Se" DUIs in Wisconsin
After some heavy-handed nudging by the federal government (involving eligibility for federal transportation funding), all states have changed their drunk driving laws to include per se DUIs. Wisconsin, like most states, sets the BAC legal limit for regular drivers at 0.08 percent and the limit for commercial drivers at 0.04 percent. If a driver already has three OWI convictions, their BAC legal limit drops to 0.02 percent so, if they are picked up for suspected drunk driving and test at 0.02 percent, they are guilty of an OWI.
These are called per se OWI offenses because per se means "in and of itself." Evidence that a driver tested at or above a BAC of 0.08 percent in a breath test or chemical test is sufficient proof, in and of itself, that they violated Wisconsin's OWI laws. No field sobriety tests or other evidence of intoxicant impairment is required.
Note that driving in Wisconsin with these BAC levels constitutes a violation of the OWI statute regardless of whether the person is actually impaired. Since each person's system is different, the volume of alcohol required to reach the legal BAC limit will vary. Gender, weight and type of alcohol all play roles in BAC levels, as do factors like what food a driver ate before or while drinking, as well as whether they are accustomed to regular drinking. While some websites provide estimates of what a BAC reading would be after a given number of drinks, it is not a good idea to put too much reliance on this type of information.
Determining Blood Alcohol Concentration
Most of us have seen a breathalyzer machine, either at a traffic stop or in films or videos. This is a device that police ask drivers to blow into for a breath test. The machine determines from a driver's deep breaths how much alcohol is in the person's system. In Wisconsin, the breathalyzer is the primary chemical test used to determine blood alcohol content, although urine or blood tests are also permitted.
Why would a driver consent to take a breath test? Well, a driver who was certain that they were not drunk might not mind at all, but anyone near the borderline of intoxication might hesitate. To prevent this, Wisconsin has enacted implied consent laws that provide that anyone who takes advantage of the privilege of driving on Wisconsin roads is deemed to have consented to take a chemical test if stopped for drunk driving. There are administrative penalties for refusing to take a chemical test, including losing the right to drive immediately and automatically for a year.
Per Se Drug OWI
What about a per se violation for use of drugs? Since there are so many types of drugs out there that affect a person's driving ability, most states do not set a legal OWI limit for drugs. In fact, many states do not have any kind of legal limit for drugs in a person's system. Some tackle this challenge by making it a violation for a driver to have even a trace of certain controlled substances in their system while operating a vehicle.
This is what Wisconsin's OWI law provides. If a chemical test shows that there is any amount of a restricted controlled substance in the driver's system, it is automatically a violation of the OWI law. The penalties are the same as for an alcohol-based OWI. Per se drug violations are most frequently determined by blood testing.
OWI Based on Impairment
Compare a per se violation with an OWI based on impairment, and it's easy to see why prosecutors prefer the former. With a per se violation, the state simply has to show that the police properly stopped the driver on suspicion of OWI, administered the test and received a BAC result over the legal OWI limit.
For an OWI conviction based on driving under the influence of alcohol or drugs, the prosecutor must show strong enough evidence to prove beyond a reasonable doubt that the driver had used either alcohol or drugs and that the substance impaired their faculties to such an extent that they were no longer capable of driving safely. This may not be very difficult to prove in some circumstances, such as if the driver was falling down drunk or driving the wrong way on a freeway, but in other situations, proof may be harder to come by.
OWI Penalties Based on Priors
Not everyone convicted of an OWI in Wisconsin will be given the same range of penalties. Penalties increase if the driver has had prior drunk or drugged driving convictions. The look-back period in Wisconsin is 10 years, but it doesn't apply to third-time or subsequent offenders.
If a person has had no prior OWI convictions for the past 10 years, they are given the least severe penalties, those applicable to a first-time OWI offender. If they have been twice convicted of OWI in the past decade, a higher range of jail time, fines and other sanctions apply. For a third offense, the 10-year limit does not apply. Anyone who has had two or more prior OWI convictions in their lifetime is treated as a third offender.
Penalties for OWI Offenses
The principal penalties for an OWI offense include jail time, fines and driver's license suspension. In addition, every person convicted of an OWI in Wisconsin must get a substance abuse evaluation. This will be used to create a driver safety plan for the individual that includes substance abuse treatment, OWI education and regular sobriety testing.
The criminal offense penalty most people fear from drunk driving is a jail sentence, and that is entirely possible in Wisconsin, depending on the driver's record. A first offense OWI is considered a civil offense rather than a misdemeanor and does not incur jail time , but a driver convicted of a second offense within 10 years will be given between five days and six months. A person with a third offense will be sentenced to between 45 days and one year. Second and third offenses are considered misdemeanors. A fourth OWI conviction is a felony, punishable by prison time of 60 days to six years, while a fifth OWI conviction puts the driver in prison for one to 10 years.
What about fines? A first offender will get a fine between $150 and $300, plus an OWI surcharge of $435. A driver with a prior OWI offense in the past 10 years will get a higher fine, between $350 and $1,100, plus the surcharge. A third offender will be fined $600 to $2,000, while a fourth offender can get a $600 to $10,000 fine, plus the surcharge. For a fifth offense, the fine can go as high as $25,000.
Driver's License Suspensions and Requirements for IIDs
Loss of driving privileges applies to every level of offense. A first-time offender loses their driver's license for six to nine months, and a second-time offender (within 10 years) loses driving privileges for between 12 to 18 months, plus time spent in jail. Subsequent offenders face a driver's license revocation for two to three years in addition to a jail sentence.
Wisconsin laws also require installation of an ignition interlock device (IID) on all vehicles owned by a driver convicted of a second or subsequent OWI. These devices are attached to the car. The driver must blow into the breathalyzer-like device before their motor vehicle will start, proving that they do not have alcohol in their system.
Wisconsin OWI Penalties Based on Circumstances
A driver stopped for an OWI can also incur greater penalties than those given to regular first, second or third offenders. For example, if a driver's test result was a BAC of between 0.17 and 0.199 percent, they face doubled fines. With a BAC between 0.20 and 0.249 percent, the fines are tripled, and are quadrupled for those with an even higher BAC level.
In addition, anyone stopped for an OWI offense and convicted of OWI will face double penalties if there was a passenger under 16 in the vehicle. We're not just talking double fines here. The fines, the jail time and the driver's license revocation period all will be doubled.
Underage OWI Drivers
Drivers under 21 years of age are required by law to maintain absolute sobriety. It is illegal for them to buy or consume alcohol in Wisconsin. For these drivers, operating a motor vehicle with any amount of alcohol in their system is illegal, so if their BAC test shows a level of 0.02 percent, they are guilty of violating the OWI statute.
Punishment for minors does not include jail time unless the BAC is at 0.08 percent or higher. Rather, violation of the Wisconsin underage drinking law leads to a $200 fine and loss of driving privileges for three months. Note that any other violation of the underage drinking law can also result in a suspended driver's license, even if drinking is not involved. For example, trying to buy liquor with a false identity card will result in a 90-day driver's license suspension, with increasing suspensions for subsequent offenses.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.