Most states increase the drunk driving penalties for repeat offenders, reserving the least severe for those who don't have a prior drunk driving record. In Wisconsin, first offenders do not face stiff fines or any jail time and also have a path to getting the criminal charge dismissed. But that is only if there are no aggravating circumstances, like the presence of a child passenger, an elevated blood alcohol concentration level or an accident.
Drunk Driving Charges in Wisconsin
Wisconsin takes drunk driving seriously. In 2019, the state saw 140 deaths and almost 3,000 injuries from alcohol-related vehicle crashes. In the same year, Wisconsin prosecutors convicted some 21,000 drivers for drunken driving offenses. These offenses in Wisconsin are called OWIs, for operating while intoxicated. But, despite the different name, states with DUIs (driving under the influence) or DWIs (driving while intoxicated) describe violations that are very similar, involving driving while under the influence of alcohol or drugs.
Wisconsin law makes it illegal for a person to drive while under the influence of intoxicants, whether alcohol or drugs. The OWI statute also makes it a violation to drive with a blood alcohol concentration over the legal limit (0.08 percent for most drivers, 0.04 percent for commercial drivers) or to drive with any detectable amount of restricted controlled substances in their systems. Any one of these circumstances will support an arrest and prosecution for an OWI.
First Offense OWI Penalties
In Wisconsin, there is a look-back period of 10 years that applies to first and second offenses. That is, the court only looks back to a driver's record for the 10 years prior to the current arrest, the time measured from violation to violation. So, if a driver has one OWI conviction that occurred 15 years prior to the current arrest, they will be prosecuted for a first offense.
Note that this look-back period doesn't apply to third and subsequent offenses. That is, if the driver has two prior OWIs, both dating from more than 10 years before the current arrest, they will be prosecuted for a third offense OWI that carries more serious consequences, including much higher fines and longer jail time.
Both a driver who has never had an OWI on their record and one who has an OWI conviction for a violation more than 10 years before, are treated as first offenders. The scope and range of sanctions is almost identical for each. Assuming that there are no aggravating circumstances, neither of these drivers will get jail time. Instead, the punishment will be a fine of between $150 and $300 and a driver's license suspension of six to nine months.
Wisconsin OWI Surcharge Fine
Everyone convicted of an OWI in the state gets hit with a surcharge of $435. The only difference in sanctions between a "true" first offender and someone who has a prior more than 10 years ago involves a mandated period of sobriety. The driver with the timed-out prior must either drive with an ignition interlock device (IID) for a year or participate in the state's 24/7 sobriety program for one year. The true first offender does not have to do this unless their blood alcohol concentration was 0.15 or above.
Aggravating Circumstances for First OWI
When is a first-conviction OWI not given these light first-offender sanctions? The answer is that the presence of certain aggravating circumstances can lead to more severe OWI punishment for first offenders.
One such aggravating circumstance is when the driver's blood alcohol concentration (BAC) not only exceeds the state limit of 0.08 percent, but exceeds 0.15 percent. As mentioned above, this will mandate completion of a year driving with an IID or a year in the state's 24/7 sobriety program.
Another aggravating circumstance is when, during the OWI stop, the police find that there is a passenger under the age of 16 in the motor vehicle. For first offenders, this increases both the fine and the potential jail time:
- Fine of between $350 and $1,100 plus the surcharge.
- Jail time of between five days and six months.
- Driver's license revocation of between 12 and 18 months in addition to the length of confinement.
Chemical Test Refusal
Wisconsin lawmakers have enacted an implied consent law that imposes penalties for anyone who refuses to take a breath test or chemical test when stopped for an OWI in the state. Chemical testing for alcohol is usually a breathalyzer, but blood tests or urine tests can also be used and are required if drugs are suspected.
Basically the law provides that anyone who drives on state roads consents to taking a chemical test if stopped. Failure to do so results in an immediate license forfeiture of at least one year. It also increases penalties when other aggravating conditions apply.
For example, look at the case of a first-time offender who causes some, but not severe, injuries while driving under the influence. If the offender did not refuse a chemical test, they can be sentenced to an increased fine of between $300 and $2,000 plus the surcharge, 30 days to one year in jail, and a license revocation of up to two years plus the length of confinement. If they refused to take the chemical test, the penalties go up, and the crime is now prosecuted as a felony with a potential fine of $10,000 and a potential prison sentence of up to six years.
Other Felony OWIs
Some OWI violations are always felonies, regardless of the individual's prior driving record and whether or not they refused the chemical testing. Two significant offenses are: when a person's OWI causes serious bodily harm to another individual and when a person's OWI causes another person's death.
Both of these are felonies, the former a Class F and the latter an even more severe felony, Class D. Both carry hefty fines of up to $10,000 for causing great bodily harm and $25,000 for causing death, and both carry long terms in state prison. Causing great bodily harm can result in over 12 years in prison, while killing someone as the result of an OWI event can carry a prison term of up to 25 years for first offenders and 40 years for repeat offenders.
Underage Drivers in Wisconsin
Special drunk driving rules apply to drivers in Wisconsin who are under 21. These drivers are not permitted to buy alcohol or to drink alcohol in Wisconsin. The state has a zero tolerance rule that makes it a violation if a young driver is found to have any detectable amount of alcohol in their system.
First, it should be noted that an under-21 driver found to have a BAC of over the legal limit of 0.08 percent can receive a regular OWI charge. Those with a BAC under 0.08 percent, but over zero percent, face a three-month loss of driving privileges and $200 fine.
Diversion Program for First Offenders
A program is available to some first offenders in Wisconsin that allows a driver to avoid criminal conviction and a jail sentence. This is a diversion program. Drivers who apply and are accepted into the program enter into a deferred prosecution agreement contract with the district attorney's office. It can require the driver to get substance abuse assessment and counseling, complete community service work, pay fines and make restitution. Sobriety checks may also be required.
A driver has one shot at a diversion program, and it is open only to first offenders. A driver who does not complete the program will be sent back to criminal court for sentencing, but a driver who successfully completes the program will have the charges against them dropped.
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.