What is Wisconsin's drunk driving 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 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 that makes a person less capable of driving safely.
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 be able to stop a person 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.
Prohibited Alcohol Concentration
The law also prohibits driving or operating with a prohibited alcohol concentration (PAC), commonly referred to as the "legal limit." As of Sept. 30, 2003, Wisconsin's legal limit is 0.08 for first, second, and third offense OWI. In fact, all 50 states and the District of Columbia have established 0.08 as the proscribed alcohol concentration for operating a motor vehicle. In Wisconsin, the legal limit on fourth and subsequent offenses is 0.02. An 0.02 level is the functional equivalent of "absolute sobriety." This essentially means that on a fourth offense, a person weighing less than 190 pounds cannot legally drive after having one "drink." 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.
Restricted Controlled Substances
2003 Wisconsin Act 97 created an additional offense; namely, driving or operating a motor vehicle with a detectable amount of a restricted controlled substance in a person's blood. "Restricted Controlled Substance" means any of the following: - a schedule I controlled substance other than tetrahydrocannabinol (THC),
- a controlled substance analog,
- cocaine or any of its metabolites (e.g., cocaethylene, benzoylecgonine),
- methamphetamine,
- delta-9-tetrahydrocannabinol.
Schedule I Controlled Substances include: - synthetic opiates
- substances derived from opium (e.g., heroin, morphine)
- hallucinogenic substances (e.g., LSD, mescaline, psilocybin)
- depressants (e.g., GHB, methaqualone)
- stimulants (e.g., methcathinone)
The law prohibits a detectable amount of delta-9-tetrahydrocannabinol, the primary active ingredient in marijuana. The law does not include the marijuana metabolites that can remain in a person's system for days or weeks; namely, 11-hydroxy-delta-9-THC and 11-nor-delta-9-THC-9-carboxylic acid. The law does not prohibit a detectable amount of other scheduled prescription drugs; for example, Schedule II, hydrocodone, oxycodone; Schedule III, pentobarbital, ketamine; Schedule IV, clonazepam, lorazepam. Finally, the law provides the following Affirmative Defense : If the person can prove he or she has a valid prescription for methamphetamine or one of its metabolic precursors, gamma-hydroxybutryic acid or delta-9-THC.
Applicability of the OWI Laws
The OWI laws are applicable to these locations:
- all highways
- all premises held out to the public for use of their motor vehicles, e.g., parking lots
- all premises provided by employers to employees for the use of their motor vehicles
- all premises provided to tenants of rental housing in buildings of four or more units for the use of their motor vehicles, whether publicly or privately owned and whether or not a fee is charged for use
- does NOT include private parking areas at farms or single-family residences
Counting OWI Offenses
All OWI offenses (including out-of-state convictions) since Jan. 1, 1989, will count as follows:
- If a person has two or more OWI violations after Jan. 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 offense.
- 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 Jan. 1, 1989.
- If a person is convicted of a first offense OWI with an alcohol concentration of 0.08 or more but less than 0.10, the Wisconsin Department of Transportation is required to purge the offense from its records after 10 years if the person does not commit another OWI offense within the same 10-year period. Otherwise, all OWI-related records are to be kept permanently.
Two-in-Five Year Offenders
Any driver who gets two OWI offenses in any five-year period is subject to:
- Mandatory one-year waiting period to be eligible for an occupational license
- All vehicles for which the offender's name appears on the title or registration shall be equipped with an ignition interlock device (IID) unless the vehicles are ordered immobilized or seized.
Vehicle Sanctions
1) 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.
2) 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.
3) 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 records that a vehicle is subject to immobilization and when the vehicle 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 $365, and license revocation from six to nine months, except for first offense OWI with an AC of 0.08 or more, but less than 0.10, there is no surcharge or other additional fees.
- For example, first offense with an AC of 0.09 = $250 base deposit; whereas a first offense with an AC of 0.10 = $784 ($250 base deposit, $25 court cost, $60 penalty assessment, $10 jail assessment, $17 jail surcharge/crime lab drug surcharge, $77 justice information system surcharge/court support services surcharge [not applicable in municipal court] and $365 driver improvement surcharge).
- Second offense is a misdemeanor offense with a fine range of $350 to $1,100 plus the $365 surcharge, jail from five days to six months, and mandatory license revocation from 12 to 18 months.
- Third offense has a fine range of $600 to $2,000, plus the $365 surcharge, 30-day mandatory jail sentence up to one year, and mandatory license revocation of two to three years.
- Fines for third and subsequent OWI offenses are increased according to the prohibited alcohol concentration as follows:
- 0.17 - 0.199 = double fine ($1,200 - $4,000)
- 0.20 - 0.249 = triple fine ($1,800 - $6,000)
- 0.25 and above = quadruple fine ($2,400 - $8,000)
- Fourth offense has a fine range of $600 to $2,000, plus the $365 surcharge, 60-day mandatory jail sentence up to one year, and license revocation from two to three years.
- Felony Classifications for Fifth and Subsequent Convictions
- Class H felony: 5th or 6th Offense:
- Fine not to exceed $10,000, imprisonment not to exceed 6 years or both
- Class G felony: 7th, 8th or 9th Offense:
- Fine not to exceed $25,000, imprisonment not to exceed 10 years or both
- Class F felony: 10th and Subsequent Offenses:
- Fine not to exceed $25,000, imprisonment not to exceed 12 years & 6 months or both
2007 Wisconsin Act 111, effective April 2, 2008. 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 Traffic 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, e.g., broken taillight, burned out headlight. It is not necessary for an officer to observe erratic or bizarre driving to make a stop. In fact, a stop can be based on a cell phone tip placed by an anonymous caller reporting a possible drunk driver. The National Highway Traffic Safety Administration (NHTSA) compiled a list of the driving behaviors identified by officers as cues that a driver is probably operating with an alcohol concentration above 0.08. They are as follows: Problems Maintaining Proper Lane Position - Weaving
- Weaving across lane lines
- Straddling a lane line
- Swerving
- Turning with a wide radius
- Drifting
- Almost striking a vehicle or other object
Speed and Braking Problems - Stopping too far, too short, or too jerky
- Accelerating or decelerating for no apparent reason
- Varying speed
- Slow speed (10+ mph under the limit)
Vigilance Problems - Driving in opposing lanes or wrong way on one-way
- Slow response to traffic signals
- Slow or failure to respond to officer's signals
- Stopping in lane for no apparent reason
- Driving without headlights on at night
- Failure to signal or signal inconsistent with action
Judgment Problems - Following too closely
- Improper or unsafe lane change
- Illegal or improper turn (too fast, jerky, sharp, etc.)
- Driving on other than the designated roadway
- Stopping inappropriately in response to officer
- Inappropriate or unusual behavior (throwing, arguing, etc.)
- Appearing to be impaired
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. A complete list of such observations is summarized below: Post Stop Clues - Difficulty with motor vehicle controls
- Difficulty exiting the vehicle
- Fumbling with driver's license or registration
- Repeating questions or comments
- Swaying, unsteady, or balance problems
- Leaning on the vehicle or other object
- Slurred speech
- Slow to respond to officer or officer must repeat
- Provides incorrect information, changes answers
- Odor of alcoholic beverage from the driver
(NHTSA, The Visual Detection of DWI Motorists , DOT HS 808 677. See also http://www.nhtsa.dot.gov) If the officer has reason to believe that the person has been driving under the influence of alcohol or drugs, the officer will likely ask the person to get out of the vehicle and perform a series of field sobriety tests. Standardized Field Sobriety Tests (SFSTs): The three standardized field sobriety tests are the: 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 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 upon 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 0.04, or 3) or the person is released 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 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." 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 request an alternative test that the agency must provide free of charge. Further, the person is also entitled to an additional 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 where the person takes the chemical test and is subsequently convicted, there will be a six to nine 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 "due to a physical disability or disease unrelated to the use of alcohol, controlled substances, controlled substance analogs or other drugs." 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 offenses and above are felony offenses. Fines for subsequent offenses range from $350 to $10,000. A felony conviction subjects the person to imprisonment from six months to six years. Misdemeanor OWI sentences are served in the county jail and will range from five days to one 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
- $3,000 to $7,000 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.
Or visit our Web site, at www.law.wisc.edu/rcid/.
Last updated: September 2008 |
