Wisconsin State Delegates

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DUI Laws

SUMMARY OF THE WISCONSIN IMPAIRED DRIVING STATUTES

Common Acronym(s) used to describe drunk driving: OWI, OMVWI, Operating While Impaired/Intoxicated.

Prohibited Vehicular Activity: “drive or operate.”

  • The term “drive” is defined in Wis. Stat. § 346.63(3)(a), which reads: “Drive” means the exercise of physical control over the speed and direction of a motor vehicle while it is in motion.
  • The term “operate” is defined in Wis. Stat. § 346.63(3)(b), which reads: “‘Operate’” means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.”

Covered Vehicles or Devices:

The term “motor vehicle” is defined under Wis. Stat. § 340.01(35), which reads:

“Motor vehicle” means a vehicle, including a combination of 2 or more vehicles or an articulated vehicle, which is self-propelled, except a vehicle operated exclusively on a rail. “Motor vehicle” includes, without limitation, a commercial motor vehicle or a vehicle which is propelled by electric power obtained from overhead trolley wires but not operated on rails. A snowmobile, an all-terrain vehicle, and a utility terrain vehicle, and an electric personal assistive mobility device shall be considered motor vehicles only for purposes made specifically applicable by statute.

Covered Locations: “Upon a highway or upon premises held open to the public.”

Wis. Stat.§ 346.61 explains that a person can be charged with Operating While Intoxicated if they are driving or operating a motor vehicle on a highway or any premise held out to the public for use of their motor vehicles.  This includes all premises provided by employers to employees  for use of their motor vehicles, and all premises provided to tenants of rental housing in buildings of 4 or more units for use of their motor vehicles, whether such premises are publicly or privately owned.

The OWI statute does not apply to private parking areas at farms or single-family residences.

Operating Under the Influence Offenses:

Wis. Stat.§ 346.63(1)(a), (b)

No person may drive or operate a motor vehicle while:

  • Under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving; or
  • 346.63(1)(am)The person has a detectable amount of a restricted controlled substance in his or her blood.
  • 346.63(1)(b)The person has a prohibited alcohol concentration.

Per Se Prohibited Alcohol Concentration Offense:

  • OWI with an alcohol concentration of .08 or more (per se offense) in first, second, and third offenses, unless presently revoked for a prior OWI offense.
  • Driving, etc. with an alcohol concentration of .02 or more (per se offense) in fourth offenses and higher or when under an IID order stemming from a previous OWI conviction.

Level of Impairment Required:
For OWI alcohol: Impairment to a degree which renders [the operator] incapable of safely driving. State v. Waalen, 130 Wis. 2d 18, 386 N.W.2d 47(1986).

For DUI drugs: Impairment to a degree which renders the person incapable of safely driving or operating with any detectable amount of a prohibited controlled substance. 346.63(1)(a); 346.63(1)(am)

STANDARD OWI PENALTIES

For first conviction: Non-criminal offense with 6-9 month driver’s license revocation; mandatory one year ignition interlock device requirement if BAC ≥ .15, Alcohol and Other Drug Assessment (AODA); Forfeiture of $150 to $300 + $365 OWI surcharge

For first conviction with minor under age of 16 in the vehicle: Misdemeanor criminal offense with jail sentence of 5 days to 6 months; 12-18 month license revocation (extended by length of time in jail); mandatory one year ignition interlock device requirement if BAC  ≥ .15; AODA; Fine of $350 to $1,100 + $365 OWI surcharge

For second conviction having a violation date within 10 years of previous violation: Misdemeanor criminal offense with jail sentence of 5 days to 6 months; 12-18 month license revocation (extended by length of time in jail); 12-18 month ignition interlock requirement (extended by the length of time in jail); AODA; Fine of $350 to $1,100 + $365 OWI surcharge

For second conviction outside 10 year range: If the violation for the second offense occurred more than 10 years since first offense violation date, the same penalties for a first offense civil OWI apply; however, there is a one year mandatory ignition interlock requirement regardless of BAC level; AODA

For third conviction: Misdemeanor offense with jail sentence of 45 days to 1 year; 24-36 month license revocation (extended by length of time in jail); 24-36 month ignition interlock requirement(extended by the length of time in jail); AODA; Fine of $600-$2000, with penalty enhancers up to 4x min/max amounts depending on BAC level + $365 OWI surcharge; AODA

For fourth conviction with violation date more than five years since previous violation: Misdemeanor offense with jail sentence of 60 days to 1 year; 24-36 month license revocation (extended by length of time in jail); 24-36 month ignition interlock requirement (extended by the length of time in jail); AODA; Fine of $600-$2000, with penalty enhancers up to 4x min/max amounts depending on BAC level + $365 OWI surcharge

For fourth conviction having a violation date within five years of previous violation: Felony offense with a minimum 6 month jail sentence to a maximum 6 year prison sentence; 24-36 month driver’s license revocation (extended by the length of time imprisoned); 24-36 month ignition interlock requirement (extended by the length of time imprisoned); Fine of $600-$10,000, with penalty enhancers up to 4x min/max amounts depending on BAC level + $365 OWI surcharge; AODA

For fifth or sixth conviction: Felony offense with a minimum 6 month jail sentence to a maximum 6 year prison sentence (bifurcated into 3 years initial confinement/3 years extended supervision); 24-36 month driver’s license revocation (extended by the length of time imprisoned); 24-36 month ignition interlock requirement (extended by the length of time imprisoned); Fine of $600-$10,000, with penalty enhancers up to 4x min/max amounts depending on BAC level + $365 OWI surcharge; AODA

For seventh, eighth or ninth conviction: Felony offense with a minimum 3 year, maximum 10 year prison sentence; 24-36 month driver’s license revocation (extended by the length of time imprisoned); 24-36 month ignition interlock requirement (extended by the length of time imprisoned);. Fine of up to $25,000 + $365 OWI surcharge; AODA

PENALTIES FOR OWI CAUSING INJURY, GREAT BODILY HARM, OR HOMICIDE BY OWI:

For First offense OWI causing injury conviction: Misdemeanor offense with 30 days to 1 year jail, 1-2 year driver’s license revocation (extended by length of time imprisoned); If BAC  ≥ .15, 1-2 year ignition interlock device requirement (extended by length of time in jail); $300-$2,000 fine + $365 OWI surcharge; AODA

For second or higher OWI causing injury conviction: Felony offense with maximum 6 year prison sentence; 2 year driver’s license revocation (extended by length of time imprisoned); 1-2 year ignition interlock device requirement (extended by length of time imprisoned); Maximum fine of $10,000 + $365 OWI surcharge; AODA

OWI causing Great Bodily Harm conviction: Felony offense with maximum 12.5 year prison sentence; 2 year driver’s license revocation (extended by length of time imprisoned); 1-2 year ignition interlock device requirement (extended by length of time imprisoned); Maximum fine of $25,000 + $365 OWI surcharge; AODO

Homicide While OWI: Felony offense with maximum prison sentence of 25 years if first offense; if one or more prior OWI-related offenses, maximum penalty of 40 year prison sentence; 5 year driver’s license revocation (extended by length of time imprisoned); 1-2 year ignition interlock device requirement (extended by length of time in prison); maximum fine of $100,000 plus $365 OWI surcharge; AODA

 

IMPLIED CONSENT (REFUSAL) PENALTIES

For first offense Chemical Test Refusal: Non-criminal offense with a one year driver’s license revocation; one year ignition interlock device requirement; can apply for an occupation license 30 days after revocation period commences.

For second offense Chemical Test Refusal: If no prior OWI offenses within past 10 years, non-criminal offense with a  one year driver’s license revocation; one year ignition interlock device requirement; can apply for an occupational license 30 days after revocation period commences.

For second offense Chemical Test Refusal within 10 years of previous OWI offense: Non-criminal offense with a two year driver’s license revocation; 1-2 year ignition interlock device requirement; can apply for an occupational license 90 days after revocation commences.

For a third offense Chemical Test Refusal: Non-criminal offense with a 3 year driver’s license revocation; 1-3 year ignition interlock device requirement; can apply for an occupational license after 120 days.

 

OCCUAPATIONAL LICENSE WAITING PERIODS:

If two or more offenses within a five year period, there is an automatic one (1) year waiting period for an occupational license.

If three or more offenses within a five year period, person is consider a Habitual Traffic Offender and may not be eligible for an occupational license for the entire length of their OWI or Refusal-related revocation. They have one opportunity to petition the court in the jurisdiction in which they drive to grant them an occupational license.

For First offense OWI conviction: No waiting period for an Occupational License; Can apply immediately upon being revoked provided person has obtained SR22 insurance and installed IID if necessary.

For Second-tenth offense OWI convictions: 45 day waiting period for an occupational license; can apply 45 days after revocation commences provided person has obtained SR22 insurance and installed IID.

For first offense OWI causing injury conviction: 60 day waiting period for an occupational license; can apply 60 days after revocation commences provided person has obtained SR22 insurance and installed IID if necessary.

For second offense OWI causing injury conviction: 60 day waiting period.

For OWI causing Great bodily harm: 120 day waiting period.

For Homicide by OWI: 120 day waiting period.

Chemical Test Refusals: See above “Implied Consent (Refusal) Penalties” Section.

MISCELLANEOUS IMPORTANT PROVISIONS

OWI-related convictions prior to 1989 are not counted unless conviction was for Homicide by OWI.

Persons convicted of three or more OWI-related offenses are subject to a prohibited alcohol concentration (PAC) of 0.02 for the rest of their lives while driving in the State of Wisconsin.

Persons under an IID order stemming from a first offense conviction are subject to a .02 PAC while driving on an occupational license.

Persons convicted of second or higher offenses are subject to an absolute sobriety requirement while driving on an occupational license.

STATUTORY PRESUMPTIONS:

Measurable BAC of more than .04 but less than .08 = Relevant evidence on the issue of being under the influence of an intoxicant, but no prima facie effect.

BAC of .08 percent or more or BrAC of .08 or more grams of alcohol per 210 liters of breath = Prima facie evidence person under the influence of an intoxicant and of an alcohol concentration of .08 or more.

Administrative Per Se Law: Immediate license seizure and 6-month license suspension if BAC is .08% or more for first, second, and third offenses, .02% or more for fourth and subsequent offenses, any amount of prohibited controlled substance. Immediate eligibility for an occupational license provided person obtains SR22 insurance. This is an administrative suspension that is initiated by the Wisconsin Department of Transportation.  If the appropriate documents are filed and the necessary time limits are met, a person who has been suspended may ask the court to stay its suspension until a judicial review hearing is scheduled.  Under the statutes, this hearing must be held at the time of trial.

CHEMICAL TEST LAWS

Implied Consent:

Any person who is on duty time with respect to a commercial motor vehicle or drives or operates a motor vehicle upon the public highways of this state, or in those areas or premises open to the public, is 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.  Any such tests shall be administered upon the request of a law enforcement officer. See Wis. Stat. § 343.305(2)

 

Three Hour Rule:

Evidence of the amount of alcohol in the person’s blood at the time in question, as shown by chemical analysis of a sample of the person’s blood or urine or evidence of the amount of alcohol in the person’s breath, is admissible on the issue of whether he or she had an alcohol concentration in the range specified if the sample was taken within 3 hours after the event to be proved.  See Wis. Stat. § 885.235 (1m).

 

Blood Drawing Statute:

Blood may be withdrawn from the person arrested for a violation of this section only by a physician, registered nurse, medical technologist, physician assistant, phlebotomist, or other medical professional who is authorized to draw blood, or person acting under the direction of a physician.  See Wis. Stat. § 343.305(5)(b). Note that at the time this information was edited (5/6/2014), a change to the language in t   his section is pending under the current legislation.

 

Independent Test Statute:

The person who submits to the test is permitted, upon his or her request, the alternative test provided by the agency (blood, breath or urine), or, at his or her own expense, reasonable opportunity to have any qualified person of his or her own choosing administer a chemical test. If the person has not been requested to provide a sample for a test, the person may request a breath test to be administered by the agency or, at his or her own expense, reasonable opportunity to have any qualified person administer any a breath, blood or urine test. The failure or inability of a person to obtain a test at his or her own expense does not preclude the admission of evidence of the results of the original test administered by law enforcement. If a person requests the agency to administer a breath test and if the agency is unable to perform that test, the person may request the agency to perform a test that it is able to perform. The agency shall comply with a request made in accordance with the law. Wis. Stat. § 343.305(5)(a)

 

Plea Bargaining Statute:

In Wisconsin, plea negotiations surrounding Operating While Intoxicated charges are limited. If a prosecutor seeks to dismiss or amend an OWI or refusal charge, the prosecutor shall apply to the court. The application shall state the reasons for the proposed amendment or dismissal. The court may approve the application only if the court finds that the proposed amendment or dismissal is consistent with the public’s interest in deterring the operation of motor vehicles by persons who are under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, controlled substance and controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving, in deterring the operation of motor vehicles by persons with a detectable amount of a restricted controlled substance in his or her blood, or in deterring the operation of commercial motor vehicles by persons with an alcohol concentration of 0.04 or more. The court may not approve an application to amend the vehicle classification from a commercial motor vehicle to a noncommercial motor vehicle unless there is evidence in the record that the motor vehicle being operated by the defendant at the time of his or her arrest was not a commercial motor vehicle. Wis. Stat. § 967.055(2)(a).

 

 
http://www.dot.state.wi.us/