Special factors in Wisconsin drunk driving cases

Wisconsin's drunk driving laws are complex and variable when compared with those of many other states. While most people are aware that it is against the law to drive with a blood alcohol content (BAC) of 0.08 or higher, some may not realize just how much the consequences of exceeding that limit can differ according to the circumstances.

Examples of factors that can affect the outcome of a Wisconsin OWI case include:

  • Whether there was a child present in the vehicle.
  • Whether anyone was injured or killed.
  • Whether the driver has any prior impaired driving convictions.

These and other circumstances can dramatically affect the penalties that someone may face when convicted of an impaired driving offense, including prison time, monetary fines and license revocation periods.

Drunk driving with a child passenger

The Wisconsin Legislature has passed a number of changes to the state's OWI laws in recent years, which have served generally to increase the penalties imposed on a wide array of impaired driving offenses. One topic addressed by these changes is the issue of impaired driving with a child passenger, which is treated very strictly under the new laws.

For purposes of Wisconsin's child passenger drunk driving law, a minor is defined as a person under the age of 16. Driving while intoxicated is always a criminal offense in Wisconsin if there is a minor present in the vehicle, even if the driver has never been convicted of OWI in the past.

Wisconsin law provides that a person convicted of OWI with a child passenger in Wisconsin will generally receive double the penalties he or she would normally receive for the offense had the minor not been present in the vehicle - and in some cases certain penalties are more than doubled.

For example, someone convicted of a first-time OWI in Wisconsin will typically face penalties including fines of $150 to $300 and a driver's license revocation period of six to nine months. Under normal circumstances, there is no jail time associated with a first-offense OWI in Wisconsin unless special circumstances exist.

For a first OWI conviction with a child passenger, however, the penalties include jail time of at least five days and up to six months. The presence of a minor passenger also raises the monetary fine to at least $350, up to a maximum of $1,100, and increases the license revocation period to a minimum of 12 months and a maximum of 18 months. The consequences of having a passenger under the age of 16 in the vehicle continue to increase as the underlying impaired driving offenses become more serious.

OWI with injuries

Another factor that can greatly affect the consequences of a drunk driving offense in is whether anyone else was injured or killed in connection to the offense. Wisconsin statute provides that it is unlawful to cause an injury while driving under the influence of alcohol or illegal drugs. This law applies not only when a driver's BAC tests at a level above the legal threshold, but also if there is any detectable amount of a restricted controlled substance in his or her blood.

Because some drugs take several days to completely clear the bloodstream, this means that a driver can potentially be charged with OWI-drugs long after the intoxicating effects of the drug have worn off. In some cases, it is possible to defend against drug-related OWI charges in Wisconsin by showing that the driver had a valid prescription for the substance in question. In other cases, a defendant charged with causing injuries while driving under the influence may be able to avoid conviction by working with his or her attorney to establish that the impairment was not the proximate cause of the injuries - in other words, that the injuries would have occurred even if the driver had not been under the influence.

Even with no prior drunk driving offenses, a driver convicted of Causing Injury while OWI in Wisconsin can be sentenced with up to a year in jail and fined as much as $2,000. In addition, he or she can have his or her driver's license revoked for up to two years and may be required to use an ignition interlock device for as much as two additional years after the driver's license is reinstated.

The penalties for OWI with injuries increase sharply if the driver has had one or more prior impaired driving convictions, or if the injuries involved are severe or fatal. For drivers with prior convictions, OWI resulting in injuries is a Class H felony and can result in up to six years imprisonment and fines of up to $10,000. As discussed above, these penalties can be doubled to 12 years in prison and $20,000 in fines if a passenger under the age of 16 was present in the vehicle.

OWI with severe injuries or fatalities

As described above, the consequences of OWI conviction can become far more serious when injuries are involved, and the rising penalties do not stop there. Certain types of injuries can trigger even more severe penalties if they result in death or great bodily harm.

Under Wisconsin law, an OWI-related injury is considered great bodily harm if it:

  • Creates a substantial risk of death, or
  • Causes serious permanent disfigurement, or
  • Causes a permanent or long-term impairment of a body part or organ, or loss thereof, or
  • Involves other serious bodily injury.

A driver convicted of Causing Great Bodily Harm by OWI in Wisconsin is guilty of a Class F felony, which carries a maximum sentence of up to 12.5 years in prison and $25,000 in fines.

When an OWI crash results in fatalities, the driver can be charged with Homicide While OWI, a Class D felony in Wisconsin. Convicted drivers can be fined up to $100,000 and sentenced to up to 25 years in prison for a first offense. For those with one or more prior impaired driving convictions, the offense elevates to a Class C felony, with a maximum prison sentence of 40 years.

Multiple drunk driving convictions

The sentencing structure for OWI-homicide provides an extreme illustration of the impact that even a single prior conviction can have on the outcome of an impaired driving case in Wisconsin. Even in cases that do not involve injuries or fatalities, however, prior convictions are a major factor in the sentencing of OWI offenses.

Wisconsin's OWI sentencing laws are highly complex with regard to the number and timing of previous convictions. Generally speaking, as a person accumulates more prior OWI convictions, he or she will face greater fines and longer prison terms for each subsequent conviction. The length of the applicable license revocation period and required IID use also increases with multiple offenses, though less dramatically.

Thus, while a first-time OWI is typically not a jailable offense in Wisconsin and is penalized with a monetary fine and license revocation only, a second offense within a ten-year period can result in substantially higher fines and mandatory jail time of up to six months. In addition, a second offense within ten years carries a much longer license revocation period and results in mandatory IID use for all offenders.

With each additional offense, the penalties for OWI in Wisconsin continue to increase. Thus, a driver with nine or more prior impaired driving convictions can be charged with a Class F felony for a tenth offense, which carries a maximum penalty of $25,000 in fines and 12.5 years in prison - even if no other aggravating circumstances are present. For cases involving injuries, child passengers or other relevant factors, the penalties can be far higher still.

Protecting your legal rights when stopped for OWI

If you or a loved one has been arrested for impaired driving in Wisconsin, it is critical that you seek help from an experienced OWI defense lawyer at your earliest opportunity. It is important to understand that you still have rights even though you have been arrested, and a lawyer can help you understand those rights as well as take the necessary steps to protect them.

Often, people who have been stopped or arrested for suspected drunk driving inadvertently forfeit their legal rights and limit their options by trying to talk themselves out of the situation. Unfortunately, while it may seem like a good idea at the time, this approach typically does little more than supply the police with evidence that may provide probable cause for an arrest and can later be used against the driver in court.

Although you may feel pressured to talk to the police and answer questions if you are pulled over for suspected OWI, it is in your best interest to politely and firmly state that you wish to remain silent until you have spoken with your attorney. Contact Law Office of Stephen M. Govin, LLC at 414-395-5620, to discuss your situation and protect your legal rights.