In her motion on behalf of Otto, Madison attorney Tracey Wood contends Bollenbeck violated Wisconsin Supreme Court rules by guaranteeing Otto would avoid prison on two counts of causing injury by drunken driving, charged in 2001. Otto received three years in prison and 17 years of extended supervision. Attorney Tracey Wood appeals. Otto sentence reduced to probation.
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drunk driving in wisconsin faq's
frequently asked questions
OWI: Wisconsin's Operating While Intoxicated - Drunk Driving - Laws
your driver's license
Will I lose my driver's license? Can I wait until my court date to take actions?
If you wait until your court date to take action, it may be too late. You could lose your license -- even before you go to court. You must either demand an "administrative suspension hearing" or a "refusal hearing," depending on whether or not you submitted to a police blood or breath test, or refused to do so. Either way, the time limit is ten (10) days. If you don't demand a hearing, you'll lose your license, regardless of what happens in court. This isn't part of the court case, so you can't wait until you go to court to take care of it. You need to act promptly.
I received a Notice of Intent to Suspend form. What does this mean?
Call Van Wagner & Wood immediately! 608-284-1200
You received this form because you submitted to a breath or blood test and the result was over the legal limit for blood alcohol content (BAC over.08 for a first offense or.02 for a fourth or higher offense).
You have ten business days, not including holidays or weekends, from the Notice Data on that form to file an administrative review request (the yellow form). If you hired Van Wagner & Wood within that ten day period, they will complete the form for you and request an administrative review hearing on your behalf with the Department of Motor Vehicles. The Notice of Intent to Suspend form will serve as your temporary driving permit for thirty (30) days from the date of the notice.
Please read the Notice of Intent to Suspend form for any additional information.
At the end of that thirty (30) day period, your driving privileges will be suspended if:
(a) an administrative review request was not filed timely, or
(b) the administrative review hearing was lost (meaning that the suspension of your license was upheld).
At that point, you may be eligible for an occupational license (see Occupational License).
I received a Notice of Intent to Revoke form. What does this mean?
Call Van Wagner & Wood immediately! 608-284-1200
You received this form because you are alleged to have refused the breath or blood test and you have an additional refusal charge with your OWI charge.
You have ten business days from the Notice Date on that form to file a demand for refusal hearing. If you hired Van Wagner & Wood within that ten day period, they will submit a Demand for Refusal to the court. The Notice of Intent to Revoke form will serve as your temporary driving receipt for thirty (30) days from the Notice Date.
Please read that form for additional information.
Provided that you hired Van Wagner & Wood within the ten day period, your operating privileges will not be revoked while your OWI case is pending. The court will schedule your case for a refusal hearing where the court will determine if your refusal to submit to the breath or blood test was proper. The outcome of that refusal hearing will determine if your driving privileges will be revoked.
If you are convicted of the refusal, there is a mandatory minimum one year revocation of your operating privileges.
What about my CDL (Commercial Driver's License)?
Because Wisconsin, like all states, permits only one driver's license to be issued to a person, a drunk driving conviction will always result in suspension or revocation of the person's commercial driver's license, or "CDL." A "CDL" is not a separate driver's license. It is actually an 'endorsement' conferring additional privileges to operate commercial vehicles requiring specific qualifications. It is an endorsement, however, based on issuance of a regular driver's license and, consequently, conviction of an offense requiring suspension or revocation of the driver's license always means that the "CDL" is revoked or suspended. This is true even if the person was not operating a commercial vehicle or 'as a CDL' at the time of the violation.
For those who are subject to federal regulation, a drunk driving conviction will be considered a "major" violation and, thereby, can result in legal disqualification under applicable federal rules.
Insurance carriers often have their own rules governing employment of drivers with drunk driving convictions. Though each insurance company makes its own rules, trucking companies who haul interstate frequently are unwilling to hire or retain drivers with a drunk driving conviction because their insurance carriers will not allow them to do so. Companies who only haul inside Wisconsin generally are not subject to such strict insurance requirements.
There are also specific drunk driving offenses that focus on those who operate a commercial motor vehicle after having consumed alcohol. Operating a commercial motor vehicle with an alcohol concentration of 0.04 or more is illegal in Wisconsin. A driver who tests at or above that level will receive an immediate 24 hour out of service order, in addition to the citation for violating the 0.04 prohibited alcohol concentration law.
What will happen at the Administrative Hearing?
At the Administrative Review hearing only the issues listed on the letter from the Department of Transportation (DOT) giving notice of the hearing will be heard.
If you hired Van Wagner & Wood, they will receive that letter giving notice of the hearing and they will provide you with a copy of it along with the police reports.
Van Wagner & Woods attorney will meet with a hearing examiner from the Department of Transportation to determine if your operating privileges will be suspended during the time of the court proceedings.
Van Wagner & Wood will then be notified of the results of that hearing by mail usually within one (1) day after the hearing occurs.
If you won at that hearing, your operating privileges will not be suspended during the court proceedings.
If you lost at that hearing, your operating privileges will be suspended thirty days after the Notice Date on the Notice of Intent to Suspend and Van Wagner & Wood will send you a letter with detailed information on how to get an occupational license.
Please note that the results of the administrative review hearing do not affect the outcome of your case in court.
Can I get an Occupational License? How?
Probably. But you may have to wait awhile first. Wisconsin allows an immediate occupational license after a first offense conviction. But there is a waiting period, which can be from 30 to 90 days, in other circumstances. Also, you cannot get an occupational license if you've already lost your license for some other reason in the preceding 365 days. Lastly, you'll have to file proof of insurance with the motor vehicle department to qualify for an occupational license. This is normally done by getting an SR-22 from your insurance agent, and is likely to lead your insurance carrier to raise your rates and, possibly, reduce your coverage. Driving under an occupational license is limited. Generally, you may drive for work purposes or for "homemaking," but you are limited to not more than 12 hours in a single day and 60 hours in the total week, according to a schedule that is maintained in the DOT files.
An occupational license may be obtained through the Department of Transportation if your driving privileges have been suspended, provided you were valid to drive before you were charged with OWI. Before going to the DOT, you must obtain SR-22 Insurance.
You may not obtain an occupational license before your suspension date begins.
If your driving privileges were administratively suspended, Van Wagner & Wood will send you a letter with detailed information about SR-22 insurance and obtaining an occupational license.
Please note that there may be other factors with respect to your drivers record history that may prohibit you from obtaining an occupational license. For example, the Department of Transportation prohibits a person with two or more suspensions or revocations within a 12-month period from obtaining an occupational license.
When will the OWI conviction be removed from my driving record?
In Wisconsin, a drunk driving conviction is a permanent part of your driving record. Since 1998, Wisconsin has counted all lifetime drunk driving convictions, even those before 1998, in calculating whether a drunk driving arrest should be prosecuted as a third or greater offense. So, unlike other violations, a drunk driving conviction is never purged from your Wisconsin driver record unless it is a first OWI conviction and you have no other OWI convictions.
Hiring an attorney in a drunk driving case on oWI charges
Should I hire an attorney?
In Wisconsin, as with most states, OWI laws are strictly enforced. Although you are not required to have an attorney, it is a very good idea to retain one if you have been arrested or charged with an OWI. If you have seriously injured or killed another person, there should be no questions as to 'whether', the question is 'when'. By immediately hiring a very experienced drunk driving attorney, such as Attorney Tracey Wood, your charges may well be greatly reduced or even eliminated.
While there may be some arguments that you can make in your defense, or mistakes that were made by the police, your chance of successfully making those arguments or finding those mistakes is much greater if you have an attorney assisting you sooner, rather than later. Invoke your right to remain silent, and ask to speak to an attorney. If you are facing an OWI charge, an attorney may be your only hope. Call us 24 hours a day at 608-284-1200 or email firstname.lastname@example.org for a free and confidential initial consultation
When should I hire an attorney?
Immediately! By immediately hiring a very experienced drunk driving attorney, such as Attorney Tracey Wood, your charges may well be greatly reduced or even eliminated.
While there may be some arguments that you can make in your defense, or mistakes that were made by the police, your chance of successfully making those arguments or finding those mistakes is much greater if you have an attorney assisting you sooner, rather than later. Invoke your right to remain silent, and ask to speak to an attorney. If you are facing an OWI charge, an attorney may be your only hope. Call us 24 hours a day at 608-284-1200 or email email@example.com for a free and confidential initial consultation.
How long do I have before I hire an attorney?
It is vitally important to contact firstname.lastname@example.org immediately after receiving a citation for an OWI if you depend upon or are concerned about protecting your future driving privileges.
I hired Van Wagner & Wood after the 10 day deadline. Now what?
Depending upon how long you waited to hire Van Wagner & Wood past the ten (10) day deadline, it may still be possible for your attorney to file an administrative review request or a demand for refusal hearing. While the deadline date may sometimes be extended after your attorney files a motion, if the Department of Transportation notes that the administrative review request was not filed within the ten (10) day limit, your operating privileges will be suspended thirty (30) days after the notice date on the Notice of Intent to Suspend. If the court notes that the refusal demand was not filed within the ten (10) day limit, your operating privileges will be revoked thirty (30) days after the notice date on the Notice of Intent to Revoke.
Please note that it is vitally important to contact email@example.com immediately after receiving a citation for an OWI if you depend upon or are concerned about protecting your future driving privileges.
When do I meet with my attorney at Van Wagner & Wood?
The attorneys of Van Wagner & Wood, S.C. provide an initial free consultation to evaluate the merits of your case and provide you with an honest straightforward opinion of the expected outcome. When your case is pending, there are several steps in the proceedings during which you need do nothing and until the pretrial conference nothing more than your statements are available to your attorney. During the process of your case moving through the system, your attorney is working on another case, in court, traveling to court, or unavailable because of time needed to prepare for an upcoming court case. It is because of these times that the attorneys at Van Wagner & Wood have taken the care and time to carefully train their support staff to be able to answer your general questions. The attorneys also encourage you to provide their staff with a list of your questions and any other information that you may need to communicate to your attorney so that when your attorney speaks with the staff your information is immediately available, answered, and communicated back to you by your attorney or your attorneys assistant. Van Wagner & Woods staff has been with them for many years and can be relied upon to convey your information precisely and confidentially.
Whenever a decision must be made relating to your case an in person or telephone meeting will be requested with you and your attorney. If you need additional information, please be sure to inform Van Wagner & Woods support staff immediately so that they may arrange for an in person or telephone meeting during the attorneys first calendar opening.
The attorneys at Van Wagner & Wood always recommend that you write down any questions or information that you may have and send the notes to their office or call them with the information or questions so that your attorney is informed of the information and able to review it as soon as he or she is available.
When do I get the police reports?
If you hired Van Wagner & Wood and if your case will have an administrative review hearing, the Department of Transportation will send your attorney a copy of your police reports along with the notice of that hearing. At the pretrial conference, your attorney will usually receive the complete discovery on your case, including police reports and any supplemental information. Prior to this date, your attorney does not have access to the police reports. Depending on the county or municipality in which you were charged, the prosecutor may send your attorney the discovery before or after the pretrial conference.
Do I need to see a drug or alcohol counselor?
Seeing a counselor for an assessment of any potential alcohol or drug related problem that may exist is always a good idea and may help you if such a problem does exist. From the standpoint of your case and depending upon your entire situation, your voluntary participation in a treatment program may cause or influence the court to lessen your sentence, particularly if you are receiving treatment or have completed treatment goals. If you would like to look into or begin treatment, Van Wagner & Woods staff or your attorney can provide you with a list of approved treatment facilities in the Dane County area or help you find a reputable facility in another county.
Please note that if you are convicted of OWI, the court will order you to complete an assessment at the time of your sentencing.
If you decide to voluntarily pursue treatment or see an alcohol or drug counselor or choose to see a therapist or other social counselor or are already in a treatment program, please ask the counselor for a Consent to Release Information form, sign it, and ask your counselor to send your attorney a letter on your behalf that describes your treatment program and prognosis.
Initial Court Appearance
When in my initial courtroom appearance date? And do I need to go to the initial court appearance?
Your initial court appearance date is the court date that is referenced on your citation. Unless someone from Van Wagner & Woods office tells you otherwise, you will not need to appear at the Initial Appearance hearing. At the Initial Appearance hearing, your attorney will enter a not guilty plea on your behalf.
Unless your attorney or someone from Van Wagner & Wood's office tells you others, you will not need to appear at the Initial Appearance hearing.
What will happen at the Initial Appearance?
At the Initial Appearance hearing, your attorney will enter a not guilty plea on your behalf.
You are not required to be present at your Initial Appearance unless your attorney tells you otherwise.
If this case is your first OWI, it is a civil matter and you will not hear from your attorney directly after the hearing, but soon after the Initial Appearance hearing the court will set your case for a pretrial conference and you will receive a letter from the office of Van Wagner & Wood notifying you of that date. That letter will be mailed to you as soon as Van Wagner & Wood is notified of the date.
If this case is your second OWI or above, it is a criminal matter. For criminal OWI cases, the court will provide your attorney with a criminal complaint and a Bail / Bond conditions of release form at the Initial Appearance hearing. Van Wagner & Woods office will send you a letter with copies of everything received at the Initial Appearance hearing and more details regarding your case.
How can I plead "not guilty" if I am guilty?
By saying "not guilty" when the judge asks for your plea. It's your right. A "not guilty" plea in court simply means you're not going to admit anything, and that it's up to the prosecution to prove it' case -- if it can -- by legally obtained and legally admissible evidence.
There's nothing dishonest about pleading not guilty, even if you think you might be guilty. In the American system of justice, it's your right.
Can I be charged with an OWI for taking my prescription medication?
Yes. If you operate a car under the influence of drugs such as heroin, cocaine, marijuana, or any other illegal substance you can be charged with a crime. As well, legal drugs can get you into trouble. Many prescription medications and some over-the-counter medications carry with them specific warnings that they may impair a persons abilities and should not be used while operating any dangerous equipment, including motor vehicles. Check the labels on all medications carefully.
What will happen at the Pretrial Conference?
At the pretrial conference your attorney will meet with the prosecutor from the Office of the District Attorney. (That prosecuting attorney is not necessarily the same prosecutor assigned to your case). It is not necessary for you to appear in person at the pretrial conference unless your attorney tells you otherwise. Your attorney will usually receive the discovery materials during that meeting along with an initial offer in your case. It also will not be necessary or useful for you to meet with your attorney before the pretrial conference because it is at that conference that your attorney will first receive the discovery materials on your case.
After the pretrial conference, Van Wagner & Woods office will send you a letter explaining the initial offer received and provide you with a copy of the discovery materials, if those were received at that meeting. Please keep in mind that an initial offer is not set in stone.
Winning A Drunk Driving Case - Beating the OWI Charges
Why "flunking" the test doesn't mean you can't win the case
That a person 'flunked' a blood or breath test doesn't mean the person will be convicted of drunk driving. Many drunk driving cases turn on whether the police had legal cause to stop, detain or test the driver. If the police act without legal cause, the evidence they obtain cannot be used in court. No evidence means no conviction. Whether police acted properly a legal issue. Having a lawyer who is skilled in defending drunk driving cases is the best way to identify and exploit these defenses. Never assume a police officer's actions are legal merely because a police officer did them. There's a reason that being certified as a police officer takes only weeks, but earning a law degree takes years.
Did I do the right thing when I took the test?
Maybe. There is no simple answer to this question. By submitting to a test, you avoid the risk of a license revocation for refusal, but you risk an administrative license suspension if you "fail" the test. Also, submitting means that the police get evidence of your alcohol concentration. But the results of the test many not matter if the police didn't have legal grounds to stop or arrest you, or violated your rights in the testing process.
The real question isn't whether you should have taken the test. The important thing is to take advantage of the defenses which that choice creates. Be sure, as well, to request an administrative review hearing within ten days after you get the "Notice of Intent to Suspend/Temporary Operator's License.
I took a breath test at the scene. Can they use it against me?
No. Wisconsin statute 343.303 prohibits use of so-called "preliminary breath test" results at the trial in a drunk driving case.
So-called "preliminary breath test" devices can, however, be used in court before trial, in very limited circumstances. The results of a "PBT" can be used when challenging an arrest as illegal, or in contesting a refusal proceeding. In such circumstances, either the prosecution or the defense can produce "PBT" evidence. The "PBT," however, must be one of the two specific models approved for use in Wisconsin under the Wisconsin Administrative Code, Trans. 311.
WHY YOUR TEST RESULTS DON'T MEAN WHAT THEY SAY
The blood alcohol "curve" -- WHEN you drink can be as important as HOW MUCH you drink
The law prohibits being intoxicated at the time that you're driving, not some time later when you're finally tested. A test result obtained an hour or more after you were stopped may not accurately reflect the alcohol in your system at the time you were driving.
Alcohol is absorbed and eliminated from the body over time. The rate at which alcohol is absorbed and eliminated is sometimes referred to as the "blood alcohol curve."
The rate of absorption of alcohol into the bloodstream is not particularly predictable, and can depend on a number of factors. Though many people believe that most alcohol is absorbed within an hour after consuming the last drink, that's not always true. Scientific research conducted on so-called "fasting subjects," meaning people who haven't eaten in a long time and have no food in their stomachs, shows that the highest alcohol concentration in a person's blood may not occur until hours after the end of drinking. Moreover, the peak isn't predictable. A "fasting subject" in one scientific study did not reach his peak alcohol level until 183 minutes after the last drink -- more than three hours.
Moreover, as soon as alcohol enters the blood, the liver begins eliminating it. So, even as a person is drinking alcohol, he is eliminating it from his system. Unlike the rate of alcohol absorption, the rate of alcohol elimination is predictable. The rate varies from.013 to.018. with.015 normally used in calculating so-called "burn off" rates. This can mean that a person who has consumed a substantial volume of alcohol over several hours time duration may have a rather low alcohol concentration.
What you drink and what you weigh also matter
The more you weigh, the more blood you have in your body, and the lower the concentration of alcohol will be after consuming a set quantity of alcohol.
In this setting at least, bigger is better
What you drink can also make a difference. Though many agencies publish charts that equate an ounce of whiskey with a 12 ounce beer because they contain the same amount of alcohol (including the DOT charts in the thumbnails above), they won't necessarily be absorbed in the same time duration, or lead to the same alcohol concentration. Generally, beer absorbs at about half the rate as hard liquor. In other words, for the same amount of alcohol in whiskey and beer, it may be expected that the alcohol peak of the person drinking whiskey will be twice that of the beer drinker, in half the time.
These scientific facts can be the basis of a defense to drunk driving charges, because even a test above the "legal limit" may not mean that you were above it when you were driving.
For example, a test done within a half hour after drinking may give a high test result because the person is still absorbing alcohol and had a lower alcohol concentration earlier. That may be true, as well, even when the test is two hours or more after drinking.
Gender also matters. A woman will have a higher alcohol concentration than a man of the same weight, assuming identical consumption. Proportionally, women have a greater percentage of their body weight in fatty tissue. Because there are few blood vessels in fat, women have less blood in their bodies than men of the same weight. Less blood means a higher alcohol concentration for the same consumption. That's why calculations concerning alcohol concentrations must always start with the subject's gender.
In training its Breathalyzer and Intoxilyzer operators in years past, Wisconsin's Department of Transportation has employed charts that illustrate the absorption and elimination of alcohol over time according to the gender and body weight of the individual. You can see and use those charts -- they're at our "Curve" Defenses page in this website.
WHY FIELD SOBRIETY TESTS ARE BOGUS
The myth of field sobriety tests
"Field Sobriety Tests" aren't tests and they don't measure sobriety. These tests are designed for failure.
All people are inherently imbalanced when standing on one leg or walking heel-to-toe. That's why you have two legs, attached side-by-side. The only creature that normally stands on but one leg is a flamingo. Police officers practice in their training how to do this task, so that they don't fall down when demonstrating it.
Police still use the "finger to nose test" -- even though it was discredited by the National Highway Traffic Safety Administration over fifteen years ago. NHTSA established that no one -- sober or intoxicated -- can reliably do that test. Police officers learn as part of their "standardized field sobriety test" training that the test isn't reliable. Yet police still routinely employ this bogus "test." They do it precisely because no one can pass it.
Don't feel bad if you didn't do well on the police "field sobriety tests." They were designed to assure that you couldn't.
Understanding Wisconsin OWI - Drunk Driving - Terms
What is BAC?
BAC stands for blood alcohol content. A blood alcohol content (BAC) or blood alcohol level (BAL) is a measure of how much ethanol is in your system. The ethanol level in your blood is a by-product of the broken down alcohol that you consumed. BAC and BAL are measured in a scientific manner that calculates the ratio of ethanol to blood within your system. Therefore, if you have a BAC of.15, that really means that you have.15 grams of ethanol per 100 millimeters of blood in your system. In most jurisdictions, if your BAC or BAL is above 0.08, and you are operating a car or other vehicle (including some dangerous machinery), you have broken the law.
If your BAC or BAL is below 0.08, that does not mean that you are necessarily capable of operating a car. Every person's ability to tolerate alcohol is different. You may still be charged with an OWI if your BAC or BAL is under 0.08 if you have exhibited other signs that you are unable to safely operate a car.
How is my BAC calculated?
BAC and BAL are measured in a scientific manner that calculates the ratio of ethanol to blood within your system.
PENALTIES & OTHER CONSEQUENCES
Do my past drunk driving convictions count?
Many lawyers miss this one.
Under Wisconsin law, if you have past drunk driving convictions or refusal revocations, you're probably subject to higher penalties for a new drunk driving. But, even though you may fall into one of these categories, these penalties may not apply to you if the court didn't follow proper procedures in the past case.
The statutes state that a second drunk driving within ten years of a first drunk driving or refusal revocation, counted from dates of violation, is a second offense. Third offenses count all past drunk driving and refusal revocations in your lifetime, though DOT records generally don't go back past January 1, 1988, and convictions before that date actually are not counted. Convictions and refusal revocations from other states also count.
But, if your past conviction or convictions resulted from a guilty or no contest plea and that past conviction resulted in your going to jail, then the court which accepted that plea was required to follow specified procedures to assure that the plea was a knowing and voluntary waiver of your right to a jury trial, privilege against self incrimination and, if you didn't have a lawyer, your right to counsel. If those procedures were not followed -- and many judges have taken short-cuts in plea proceedings because they were trying to do them quickly -- then the plea is probably Constitutionally invalid. If so, it may not be counted as a prior offense in determining the grade of the present case, i.e., second, third, etc.
In Wisconsin, there is a "step-up" method for handling multiple OWI convictions for the same person; however, it does matter where you were previously convicted. (Click here to read Attorney Tracey Woods article regarding her Challenge of Prior Drunk Driving OWI Convictions in another state).
Wisconsin Drunk Driving Law prohibits and defines it as an illegal activity in Wisconsin for a driver over the age of 21, with no OWI (Operating While Intoxicated) convictions to operate a motor vehicle, with a Blood Alcohol Concentration (BAC) of 0.08 or greater, while under the influence of an intoxicant, or while under the influence of a controlled substance or any other drug. According to Wisconsin Drunk Driving Law, a driver is "under the influence" when his or her ability to operate a motor vehicle is impaired.
OWI number 1: On a first OWI conviction there may be a fine ranging between $150-$300, plus $355 surcharge with a suspension or revocation of your driving privileges ranging between 6-9 months; however, an occupational license can usually be availed immediately or your driving privileges may be retained while charges are pending provided a request for a hearing is filed within 10 days of the date of the violation and you prevail at that hearing.
As the number of OWI conviction increases, the penalties accordingly increase, having a fine ranging between $600 - $10,000, with $355 surcharge and a possible jail term ranging between 6 months to 6 years.
OWI-DUI-DWI charges can be much more severe if the person is found and proved guilty of causing injury, causing great bodily harm, or vehicular homicide. Those fines can reach up to $100,000 and a possible jail term of 25 years. Additionally, these more severe actions may also result in civil lawsuits. For drivers with three previous OWI convictions, the limit is lower: they are not allowed to operate a motor vehicle if their blood alcohol content is greater than 0.02.
Challenging invalid prior convictions is an essential component of proper defense of a third or subsequent offense drunk driving case. Nonetheless, it is a defense which is frequently overlooked. If you are charged with a third or greater offense drunk driving, it is important that you select an attorney who is familiar with the grounds for Constitutional challenges to past convictions.
Past convictions may be challenged in a new case without reopening the old one.
Because first offense cases are not considered criminal, the validity of past convictions normally is an issue only in third and greater offense cases, i.e., only when a challenged past conviction was itself criminal.
Will I go to jail? If so, for how long?
Jail is a mandatory penalty for all drunk driving convictions except the first one. There is no jail penalty in a first offense case. For all other drunk driving convictions, there is a minimum amount of jail time which must be served. The amount of the jail time which you are facing will depend on how many times you've had a conviction for drunk driving in the past, your alcohol concentration, and whether you refused a blood or breath test. The more past convictions, the higher the jail time: a minimum of five days for a second offense, 30 days for a third offense, 60 days for a fourth offense. Fifth and subsequent offenses are felonies and you can be sent to prison, if convicted. Additionally, if there was a child under age 16 in the vehicle at the time of the offense, the minimum and maximum penalties double.
You will probably go to jail for more than the minimum. All counties use a sentencing guideline system that equates the length of the jail sentence to the alcohol concentration revealed by testing, or to the fact of a refusal to submit to testing. Generally, these guidelines require longer sentences for higher alcohol concentrations and for refusing. There is a considerable variation in the severity of these sentencing guidelines among counties, though the scheme in Milwaukee County is generally regarded as the most harsh. Other factors that may be considered include whether there was an accident or other bad driving and, in some counties, whether there has been affirmative involvement in alcohol dependency treatment.
What are the other penalties?
You can lose your driver's license. You can lose your car. You can be ordered to alcohol treatment. You can be fined a lot of money.
For a first offense drunk driving conviction, you'll lose your license for 6 to 9 months and pay a money penalty of at least $650.00.
In second offense cases, the fines are larger, often over $1,000.00. Third offense cases carry even larger fines, and the State can decide that it wants to keep your car. By the fourth offense, under present law, the State is required to seize your car. A fifth offense is a felony, so there is a serious risk of going to prison, for up to two years.
Anyone convicted of drunk driving or a test refusal is always required to submit to an alcohol assessment, and to comply with whatever "Driver Safety Plan," i.e., Group Dynamics or alcohol treatment, in or out-patient, is recommended by the assessing agency. These services must be paid by the convicted driver.
In addition, depending on the number of prior offenses, the driver may be required to have an ignition interlock installed on his or her vehicle, or may be required to immobilize the vehicle by having it booted. In third and subsequent offense cases, a judge may order a vehicle owned by the driver and used to commit the drunk driving offense seized by the Sheriff, and ultimately forfeited to the State. (That, however, requires a separate lawsuit.)
The statutes allow judges to impose various forms of community service in drunk driving cases, but this authority is seldom exercised.
Will my insurance go up if I'm convicted?
Yes. How much will depend on your insurance carrier. A bigger problem than rates, however, may be coverage. Often, insurance companies after a drunk driving conviction refuse to write liability policy limits that are more than $ 50,000 in coverage. This can leave your assets and family unprotected against a lawsuit if there is later a claim. A $ 50,000 liability limits policy can be used up in a week's hospitalization and treatment. So, the real impact of a drunk driving conviction may be to put your family's financial security at risk.
Is this a felony?
A first offense drunk driving case is classified as a "civil forfeiture." It is not a crime because it does not carry a possible jail sentence. Usually, second, third, and fourth offense violations are criminal misdemeanor offenses. Fifth offense violations are felonies. However, if a passenger in the vehicle was under age 16, maximum penalties double. This means any third or fourth offense drunk driving where a passenger is under age 16 will be felony offense.
Can they take my car?
Wisconsin law allows a judge to order a vehicle to be seized for forfeiture whenever its owner is convicted of a third or subsequent offense drunk driving violation. In a case taken to the Wisconsin Supreme Court, the scope of the law was limited to allow only a vehicle both owned by the driver and used by the driver to commit a drunk driving offense, 3rd or greater, to be forfeited. Forfeiture, moreover, requires a separate lawsuit be filed, after conviction of the drunk driving charge itself. So, if there's no conviction, there can't be a vehicle forfeiture. In 1999, the statute was amended to make this an explicit restriction in the law.
The legislation signed by the Governor in 1999 also made other changes to the forfeiture statute. Under the old law, forfeiture was mandatory if there were a conviction for a fourth or greater offense drunk driving or PAC (or refusal) case. These mandatory forfeitures have now been eliminated, though any vehicle owned by a person convicted of a third or greater offense drunk driving violation is still subject to forfeiture if it was used to commit the offense. It's just that it's optional, in the discretion of the judge and prosecutor, rather tan being required. This means that prosecutors can decide to seek forfeiture of an expensive car, but ignore a junker.
If a vehicle is forfeited, any money owed to the bank or other secured party must be first paid out of the proceeds realized by the Sheriff's selling the car. As a practical matter, this means that many vehicles cannot be forfeited, because the price at a sale wouldn't exceed the outstanding loan balance. Also, leased vehicles cannot be forfeited, because they're not owned by the driver. Similarly, a vehicle owned by an employer or third party, such as a rental car, cannot be forfeited.
As mentioned already, whenever a judge orders a vehicle seized for forfeiture, the statutes require the district attorney bring a separate lawsuit to accomplish forfeiture. Forfeiture cannot be ordered directly in the drunk driving case itself.
Why did I get TWO tickets?
You received one ticket for drunk driving: "operating a motor vehicle while under the influence of an intoxicant." The second ticket was for having a "prohibited alcohol concentration," which means that you got a ticket for testing above the legal limit. Even though you got two tickets, the penalties for each are the same and, by law, there can be only one set of penalties imposed, regardless of whether you're convicted of one or both tickets.
Can they take my driver's license even before I go to court?
They can try. You received from the police a "Notice of Intent to Suspend," if you submitted to a police breath or blood test, or a "Notice of Intent to Revoke," if you refused one. (Often, police officers tell people these documents are a "temporary driver's license," which only describes part of their function.) Either way, if you don't demand a hearing by filing the correct demand paper in the correct place and do it within ten days after you get that notice, you can lose your license -- even if you plead not guilty in court. The administrative suspension and refusal revocation provisions of Wisconsin law operate independently of the drunk driving prosecution. So, pleading not guilty isn't a substitute for demanding the hearing within ten days. You need to do both: demand the hearing and plead not guilty.