In Wisconsin, it’s important to know that it is not necessary for an officer to actually see a person driving to being able to stop him or her for an OWI or DUI. It’s enough that a person has either turned on the ignition or has left the motor vehicle running while the vehicle is in the park position. 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 and DUI. If you have been arrested in Wisconsin it’s important for you to contact a skilled attorney right away to protect your rights.
Wisconsin drunk driving law (DUI / OWI) 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 which makes a person less capable of safely driving.
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 DUI or 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 being able to stop him or her for OWI or DUI. 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.” 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 / DUI.
The Legal Limit
The law also prohibits driving or operating with a prohibited alcohol concentration (PAC), commonly referred to as the “legal limit.” Wisconsin’s legal limit is .08 for first OWI, second OWI, and third offense OWI. The legal limit will remain .02 on fourth and subsequent OWI offenses.
Counting OWI / DUI Offenses
All OWI / DUI offenses (this includes out of state convictions) since January 1, 1989, will count as follows:
- If a person has two or more OWI / DUI violations after January 1, 1989, they will stay on the driver record permanently. However, if a person has one OWI / DUI violation within 10 years, then a subsequent OWI / DUI offense outside the 10-year period will be considered a first.
- Once a person gets a third OWI / DUI – 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 January 1, 1989.
- Effective September 30, 2003, if a person is convicted of a first offense OWI / DUI with an alcohol concentration of .08 or more but less than .10, the Wisconsin Department of Transportation is required to purge the offense from its records. Otherwise, all OWI / DUI – related records are to be kept permanently.
Wisconsin Vehicle Sanctions
Seizure and Forfeiture:
- On a third and subsequent OWI / DUI – related conviction in Wisconsin, a judge may order the 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 / DUI – 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.
Wisconsin Ignition Interlock Devices:
- Ignition Interlock Devices (IIDs) can be ordered as a license restriction on second and subsequent OUI / DUI offenses or for a refusal of a chemical test under the implied consent law. Unlike vehicle seizure, Ignition Interlock Devices are tied to a person’s operating privilege rather than to a particular vehicle.
- An Ignition Interlock Devices 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.
- Ignition Interlock Devices 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 / DUI, a court could order a two-year revocation and a three-year Ignition Interlock Devices restriction. This would require the driver to have an Ignition Interlock Device even after he or she is finished with the occupational license period.
- Ignition Interlock Devices 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 Ignition Interlock Devices.
- 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 / DUI 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 notes on its records that a vehicle is subject to immobilization as well as when it is actually immobilized.
- Immobilization is restricted to the vehicle used in the OWI / DUI offense.
Wisconsin Fines and Penalties
- First offense OWI / DUI is a forfeiture violation subject to a fine of $150 to $300, plus an OWI surcharge of $355, and license revocation from 6 to 9 months, except first offense OWI with a BAC of .08 or more, but less than .10, there is no surcharge or other additional fees.
- Second offense OWI / DUI has a fine range of $350 to $1,100 plus the $355 surcharge, jail from 5 days to 6 months, and license revocation from 12 to 18 months.
- Third offense OWI / DUI has a fine range of $600 to $2000, plus the $355 surcharge, jail from 30 days to 1 year, and license revocation from 2 to 3 years.
- Fines for third and subsequent OWI / DUI offenses are increased according to the prohibited alcohol concentration as follows:
.17 – .199 = double fine ($1,200 – $4,000)
.20 – .249 = triple fine ($1,800 – $6,000)
.25 and above = quadruple fine ($2,400 – $8,000)
- Fourth offense OWI / DUI has a fine range of $600 to $2,000, plus the $355 surcharge, jail from 60 days to 1 year, and license revocation from 2-3 years.
- Fifth and subsequent OWI / DUI is a felony offense. There is a mandatory minimum fine of $600 but not more than $2,000, plus the $355 surcharge, imprisonment of not less than 6 months or more than 5 years, and a license revocation of 2 to 3 years.
- Fines, jail time, and revocation/suspension periods are all doubled for a person convicted of OWI / DUI when a person under age 16 is in the vehicle at the time of the offense.
- All OWI / DUI offenses carry six demerit points, except chemical test refusals, and if convicted, a mandatory alcohol assessment/evaluation to determine the nature and extent of their alcohol problems.
Wisconsin Occupational Licenses
- On a first OWI / DUI offense, a person is immediately eligible to apply for an occupational license. There is no waiting period. On a second OWI / DUI offense, there is a 60-day waiting period; and on third and subsequent OWI / DUI 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.
Wisconsin’s Implied Consent Law
The Implied Consent Law means that any motorist on Wisconsin’s highways has 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 an “alternative test” that the agency must provide free of charge. Further, the person is also entitled to a 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 in Wisconsin?
No. But a refusal on a first OWI / DUI offense will result in one-year license revocation and a 30-day waiting period for an occupational license. In contrast, on a first OWI / DUI offense when the person takes the chemical test and is subsequently convicted, there will be a 6 to 9-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 OWI / DUI 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.