Getting arrested for drinking and driving can be scary. If you are dealing with a DUI/DWI/OWI charge in Wisconsin and are wondering what to expect, here are some frequently asked questions our lawyers receive:
What are the penalties I face if convicted of an OWI?
While jail is not a possibility for a first-offense OWI, a conviction still results in a stiff monetary forfeiture, court costs, the loss of driving privileges, alcohol counseling, and potential installation of ignition interlock device. Refusing a lawfully requested chemical test can lead to a one-year license revocation with a waiting period of 30 days to apply for an occupational license and mandatory installation of ignition interlock. Auto insurance rates can also rise drastically, providing that your current provider does not drop coverage.
- The revocation period is 6-9 months.
- The forfeiture range is $150-$300 plus court costs.
Second Offense
While a first-offense OWI is a noncriminal charge, a second offense involved a mandatory minimum jail sentence — up to 6 months — and fines well over $1,000 plus court costs. Add to that license revocation from 12 to 18 months, mandatory ignition interlock and alcohol counseling.
Third Offense
A third OWI conviction requires mandatory jail time of at least 45 days and the potential of up to one year. Driver’s license revocation is at least 24 months and as high as 36 months. Fines continue to increase and are in the thousands of dollars, and mandatory ignition interlock device and alcohol counseling are required. In addition, on a third offense, one’s breath or blood test result impacts the monetary fines as follows:
- Fines double at .17 – .199 (up to $4,000)
- Fines triple at .20 – .249 (up to $6,000)
- Fines quadruple at .25 and above (up to $8,000)
Fourth Offense (Felony)
On a fourth-offense OWI, the alcohol limit lowers to a level of .02 (compared to .08 on a first, second or third offense). The penalties also increase significantly. A fourth OWI conviction requires a mandatory minimum of 60 days in jail and up to one year in jail, up to $2,000 in fines, plus court fees, and a mandatory ignition interlock device. Again, the alcohol level affects the fines as follows:
- Fines double at .17 – .199 (up to $4,000)
- Fines triple at .20 – .249 (up to $6,000)
- Fines quadruple at .25 and above (up to $8,000)
Most significantly, a fourth OWI conviction is a felony, with a potential prison sentence, and as of December 1, 2018, there is a lifetime driver’s license revocation.
In addition, as a felony, if convicted, you will permanently lose your Second Amendment right to possess firearms.
Fifth and Sixth Offense
The penalties for a fifth-offense OWI include a minimum of six months in jail with the possibility of a lengthy prison sentence, in addition to the stiff fines and lifetime driver’s license revocation.
Seventh and Greater Offense
Seventh-offense OWI convictions require a mandatory prison sentence.
Do I have the right to an attorney?
In Wisconsin, a first offense for Operating While Intoxicated (OWI) is a civil matter. A person only has a constitutional right to an attorney in criminal matters. Thus, in a first-offense OWI, one does not have a right to counsel. However, it is strongly advised that legal counsel be sought to review the fact of the case and whether grounds exist for challenging the traffic stop, the arrest and/or the alcohol concentration level.
What is an “IID”?
An IID is an ignition interlock device — a device which is professionally installed on a vehicle to detect alcohol in a driver’s breath. When ordered by the court on a conviction, the driver must blow into the device prior to the vehicle starting. If the IID registers any alcohol, the vehicle will not start. Under current Wisconsin law, second offense and higher OWI offenders or first-time offenders with a blood alcohol concentration in excess of .15% must have an IID installed in their vehicle for a period of at least one year.
Am I going to lose my license? If so, for how long?
In Wisconsin, if you take a blood or breath test, and it shows that your blood alcohol level is in excess of the legal limits, you will receive a Notice of Intent to Suspend Operating Privilege. You have the option to request an administrative hearing with the Department of Transportation within 10 days of receipt of the Notice, or 13 days if the Notice was mailed to you. This is an administrative suspension, and it is different from any suspension or revocation that the Court may impose. If you do not request an administrative hearing, or you requested the hearing but have lost the review, your license will be suspended for six months. However, in most cases, you are immediately eligible for an occupational license.
Do I need to report a drunk driving arrest to my insurance company?
The answer is generally “no.” However, if there was a collision involving injury, death, or property damage that you do not wish to pay for out of your own pocket, you should notify your insurance carrier. It is always advisable to consult legal counsel first, however. If there were no injuries or damage, there is no requirement under Wisconsin law to report the OWI arrest to your insurance carrier. Keep in mind, however, that the police or the property owner could contact your insurance carrier. If you want or need to obtain an occupational license, you must obtain an SR-22 (proof of insurance policy) prior to applying for the occupational license. This can be obtained through most insurance providers — meaning you do not have to go through your current insurance provider. Keep in mind that your insurance provider will likely learn of the OWI at some point in time, if they happen to do a routine check of driving status.
The officer questioned me without reading my Miranda rights. Do I have a case?
Miranda is a complicated issue that deals with interrogation of suspects in custody. It only applies to criminal cases, and there are many exemptions. A general questioning of a person on the roadside is mostly exempt, as is booking information. However, interrogation at the police department in a criminal case does require the administration of the Miranda warning for any statements to be admissible.
The officer asked me to take a field sobriety test, which included a breath test. Am I required to submit to these tests?
Absolutely not. Remember that when the police make a traffic stop, they are gathering information and evidence during every second of the stop. The officer may be trying to determine whether there is alcohol coming from your breath, monitoring your speech or watching your eyes and balance. Every movement and statement you make is being closely monitored and likely recorded. You are not required to speak to an officer, but you must produce your driver’s license and exit the vehicle when requested, and any statement you choose to make must be truthful. However, you are under no requirement to perform any physical field sobriety test. In addition, you are under no requirement or obligation to take a Preliminary Breath Test (PBT), which is a small hand-held device used at the scene of a traffic stop to determine the presence of alcohol.
Do I need to take the breath or blood test at the police department after my arrest?
The general answer is yes. If one does not submit to a lawfully requested evidentiary chemical test, the law enforcement agency will determine it to be a “refusal” — a charge that can result in a much higher driver’s license revocation, installation of an IID and a waiting period for an occupational driver’s license. Even if you refuse a test, the police may be able to proceed with a “forced blood draw” to obtain a blood sample. So, while the refusal generally places you in a much more difficult position, there are situations where a refusal may be in your best interests, depending on a variety of factors.
When should I consult my attorney?
You should contact a qualified OWI attorney as soon as possible upon your arrest. Mays Law Office, LLC, in Middleton, has a 24-hour answering service. If you have the opportunity to make a telephone call at any time while being investigated or while at the police station, contact us immediately at 608-535-4719. If not, the minute you are released, you or your family member should contact our office.