This page is about the counting of alcohol offenses in Wisconsin when charging OWI / DUI / DWI cases. If you are looking for information about the DUI / OWI Treatment Court in Dane County, or court process for criminal DUI / OWI cases in Dane County you should go to those pages instead.

DUI / OWI (Drunk Driving) Math inWisconsin

Criminal Cases that depend on how you count

In Wisconsin all drunk driving charges after the first one are criminal charges handled in Circuit Court. First offense cases are not charged as crimes unless there is a minor in the car or there is an injury. Both criminal and civil drunk driving charges can have profound consequences. This page is about what counts and does not count as a prior conviction. It may surprise you.

Further, the timing and sequence of arrests and convictions can matter.

Civil Cases - First Offense

First Offense OWI / DUI is not treated as a crime in Wisconsin unless there is a child in the vehicle or someone is injured. That does not mean it is treated lightly. First offense OWI / DUI in Wisconsin often results in more significant penalties than in other states that treat this as a crime. However, the procedures are a little different in non-criminal cases and many different courts can hear such cases. If you have never been arrested or cited or in court for an OWI / DUI / Drunk Driving you are treated as a first offender. Except if as an underage drinker you were convicted of an absolute sobriety violation in another state that will count as a prior conviction.

Any one incident more than ten years ago will not count, but more than one will count. That is if a driver had one prior in May of 1989 a charge in June of 1999 (or 2010) counted as first offense. However if the driver had the May 1989 and the June 1999 offenses (both treated as first offenses) and then another in 2010, the 2010 charge would not be a first offense or second offense but a criminal third offense for court purposes.

No offenses before January 1, 1989 are counted.

Out of State Charges Are Different - Usually in a bad way!

The following are counted as prior convictions in Wisconsin when they occurred in a different state - even if they would not count in the original state:

  1. Refusing to take a chemical test
  2. A deferred prosecution for OWI / DUI / Drunk Driving / Drugged Driving that did not result in a conviction
  3. Operating  as an underage drinker you were convicted of an absolute sobriety violation (would not count if in Wisconsin)
  4. A conviction for OWI / DUI / Drunk Driving / Drugged Driving

Some offenses in or out of Wisconsin are not counted!

Some prior convictions are not counted if proper procedures were not followed. This is a complex determination and requires analysis of all relevant records by an experienced attorney. For instance in one of the cases handled by our office a case originally charged as a third offense was properly revised to be a first offense.

Examples of counting

Example 1 - 3rd offense following two first offenses

Offense Date Conviction Date Counted as
May 1, 1990 June 15, 1990 First Offense - non criminal
June 1, 2000 August 1, 2000 First Offense - non criminal
July 15, 2011 (or August 15) September 20, 2011 Third Offense Criminal Misdemeanor

Example 2 - Misdemeanor 4th offense, Felony Fifth Offense

Offense Date Conviction Date Counted as
May 1, 1990 June 15, 1990 First Offense - non criminal
June 1, 1991 August 1, 1991 Second Offense Misdemeanor
July 15, 1994 September 20, 1994 Third Offense Misdemeanor
July 20, 2005 November 20, 2005 Fourth Offense Misdemeanor
July 31, 2011 November 20, 2011 Fifth Offense - Felony
Example 2, above, is what the legislature had in mind when it passed the law, sequential offenses and sequential penalties.

 

Example 3 - Felony 4th offense, Felony Fifth Offense

Offense Date Conviction Date Counted as
May 1, 1990 June 15, 1990 First Offense - non criminal
June 1, 1991 August 1, 1991 Second Offense Misdemeanor
July 15, 2004 September 20, 2004 Third Offense Misdemeanor
July 20, 2005 November 20, 2005 Fourth Offense Felony - within 5 years of prior conviction
July 31, 2011 November 20, 2011 Fifth Offense Felony

Example 3, above, is also what the legislature had in mind when it passed the law. Compare with other 4th offense examples below!

Example 4 - 1st offense before January 1, 1989

Offense Date Conviction Date Counted as
May 1, 1988 June 15, 1988 First Offense - non criminal
June 1, 1991 August 1, 1991 Second Offense Misdemeanor
July 15, 2001 September 20, 2001 First Offense - non criminal
July 20, 2005 November 20, 2005 Third Offense Misdemeanor
July 31, 2011 November 20, 2011 Fourth Offense Misdemeanor

Note, the 1988 offense was within 5 years of the 1991 offense making that offense a second offense. but by the time of the 2001 offense was not counted because before 1989 and thus the 2001 offense was a first offense because more than ten years after the 1991 offense. The law that said to not count offenses prior to 1989 was passed in the late 1990's at the same time they started counting lifetime offenses. That happened because the DOT had up until that time been purging records after ten years. I do not believe you can find this provision in the statutes; it is nevertheless the law, you may need to go to the actual law that was passed by the legislature to find this.

Example 5 - Misdemeanor 4th offense, Felony Fifth Offense

Offense Date Conviction Date Counted as
May 1, 1990 June 15, 1990 First Offense - non criminal
June 1, 2001 August 1, 2001 First Offense - non criminal
July 15, 2003 September 20, 2003 Third Offense Misdemeanor
July 20, 2010 November 20, 2012 Fourth Offense Misdemeanor
July 31, 2010 November 20, 2012 Fifth Offense - Felony

Note, the fourth offense was not within 5 years of the previous conviction. Compare with Examples 3, above, and 6 and 7, below. Again, (Example 5) we have sequential offenses and sequential convictions.

Example 6 - Misdemeanor 4th offense, Felony Fifth Offense - Fourth offense occurred before Third offense

Offense Date Conviction Date Counted as
May 1, 1990 June 15, 1990 First Offense - non criminal
June 1, 2001 August 1, 2001 First Offense - non criminal
July 15, 2010 November 20, 2012 Fourth Offense Misdemeanor
July 20, 2010 September 20, 2012 Third Offense Misdemeanor
July 31, 2010 November 20, 2012 Fifth Offense - Felony

Note, the fourth offense conviction was was within 5 years of the third offense but the offense was not within 5 years following the second offense conviction. That was the last prior conviction at the time of this offense. The fourth charge was counted as a third because at the date of conviction there were only two earlier convictions. The third charge was counted as a fourth because at the date of conviction there were three convictions counted. If the conviction date on the third and fourth offense had been in the same order as the offenses, the fourth would have been a felony. See below for more.

Example 7 - Felony 4th offense, Felony Fifth Offense - Fourth offense occurred before Third offense

Offense Date Conviction Date Counted as
May 1, 1990 June 15, 1990 First Offense - non criminal
June 1, 2004 August 1, 2007 First Offense - non criminal
July 15, 2010 November 20, 2012 Fourth Offense Felony
July 20, 2010 September 20, 2012 Third Offense Misdemeanor
July 31, 2010 November 20, 2012 Fifth Offense - Felony

Note, this is the same as example 6 except for the date of the second offense and conviction. The fourth offense conviction (third charged) was within 5 years of the second offense and the offense was within 5 years following the second offense conviction. The fourth charge was counted as a third because at the date of conviction there were only two earlier convictions. The third charge was counted as a fourth because at the date of conviction there were three convictions counted.

Example 8 - Out-of-state deferral without conviction

Offense Date Conviction Date Counted as
May 1, 2001
Illinois Drunk Driving
June 15, 2002
No conviction - dismissal
following supervision
Not a DUI in Illinois
June 1, 2003 August 1, 2003 First Offense Wisconsin (or Illinois)
July 20, 2005 November 20, 2005 Third Offense Misdemeanor Wisconsin

Note: State v. List, 691 NW 2d 366 - Wis: Court of Appeals 2004, 277 Wis.2d 836 (2004), 2004 WI App 230, 691 N.W.2d 366 decided saying that the Illinois deferral counts as a prior offense.

Example 9 - Out-of-state absolute sobriety conviction that would not count as a prior if committed in Wisconsin

Offense Date Conviction Date Counted as
May 1, 2001
Illinois Absolute Sobriety
June 15, 2001
No DUI
Not a DUI in Illinois or Wisconsin
June 1, 2007 August 1, 2007 First Offense Wisconsin (or Illinois)
July 20, 2011 November 20, 2011 Third Offense Misdemeanor Wisconsin

Note: State v. Carter, 2010 WI 132 (Dec. 2, 2010) decided saying that the Illinois absolute sobriety suspension counts as a prior offense. This does not necessarily apply to all out-of-state absolute sobriety convictions. Read the case!

IID Requirement (Ignition Interlock Device) - one more wrinkle on counting

Repeat Offenses

An IID is required for all second or subsequent offenses, even if the offense would be counted as a first offense for other penalty purposes. Village of Grafton v. Seatz, 2014 WI App 23 (Jan. 29, 2014). But, see DMV OWI Penalty Chart.

This is true even if none of the offenses involved alcohol. (No one ever said that the laws had to make sense.)

 More Serious First Offenses

If there is an alcohol level of .15 or higher (at the time of the offense). Note: The alcohol reading on the evidentiary breath test may be higher than the alcohol level was at the time of the offense! Also, these machines are not calibrated to measure at the .15 level. Talk to a drunk driving defense lawyer!

If there was an unlawful refusal to take an evidentiary test that is specified in the Wisconsin Implied Consent law.

See DMV OWI Penalty Chart.

Can last longer than the revocation even if ordered for the same length of time - usually will last longer!

If an 18-month revocation period and an 18-month IID requirement are both imposed, do they end at the same time? Usually not. The revocation period gives credit for any period of administrative suspension (up to six months). In addition, the revocation period runs out once the time is up. The IID requirement does not start running until the driver has a license (occupational or regular).

Applies to all cars owned or driven, whether or not an owned car can even run!

If the DMV has record of the driver owning a vehicle, even if it has been junked or is undrivable, the driver will be required by the DMV to install an IID in it unless the vehicle is exempted by the Court.

 

 

Warning - Use at your own risk.

This page is not intended to be legal advice or substitute for legal advice. It is intended to provide general information. Legal advice can only be given with a full understanding of the actual facts of a case, generally in a face-to-face consultation. Note that there are exceptions to many of the statements made on this page. No one should act or refrain from acting based on anything stated in this web page. My office does not give legal advice to non-clients over the phone or internet. Further, the law (and procedures) in drunk driving cases are changing rapidly. This page reflects procedures in place in Wisconsin on January 1, 2014. In this session of the legislature, the Assembly has passed bills that would change many things stated on this page; those changes have not been adopted by the Senate, yet.

See also:

DUI / OWI Wisconsin - How this office approaches DUI / OWI cases. The need for an assessment and / or treatment along with competent legal assistance is discussed.

DUI / OWI / DWI / Drunk Driving while Parked in Wisconsin

DUI / OWI / DWI / Drunk Driving Stop in Wisconsin - procedure

Criminal DUI / OWI / Drunk Driving Court  - procedure

DUI / OWI Field Sobriety Tests in Wisconsin - A look at what "field sobriety tests" are - and are not - in Wisconsin.

DUI / OWI (Drunk Driving) Wisconsin Ten Day Warning - Why a defendant needs to take action before the court process even gets going.

DUI / OWI / Drunk Driving Training of Attorney Charles Kenyon in Madison, Dane County, Wisconsin - some of the advanced training in drunk driving defense take by Attorney Charles Kenyon

DUI / OWI Treatment Court - an option that must be considered in Dane County for some third-offense cases

List of Ignition Interlock Device Providers in Wisconsin

Wisconsin Judicial Sentencing Guidelines for OWI / DUI / Drunk Driving cases by County. Each judicial district has different guidelines.

 

Charles Kyle Kenyon - When Experience Matters

When experience matters ... Madison WI Criminal Defense Attorney (Lawyer) Charles Kyle Kenyon - Felonies - Misdemeanors - Traffic - Drunk Driving - Sexual Assault - Homicide - Burglary - Robbery - Battery - Domestic Violence - in Dane County.Attorney at Law Scales of Justice - copyright 1995 - Madison Wisconsin criminal defense lawyer (attorney) Charles Kenyon
5555 Odana Road, Suite 101
Madison, WI  53719-1281

Telephone (608) 276-9642

Since 1979

Former (Elected) District Attorney
Former Assistant State Public Defender
Extensive jury trial experience in cases ranging from traffic to sexual assault / homicide
Thousands of criminal cases since 1979
Appeals in Wisconsin Court of Appeals and Supreme Court

J.D. University of Wisconsin Law School 1978 - winner of Abe Sigman prize
B.A. University of Wisconsin - Madison - Psychology - 1975

Trainer / presenter / panelist for American Bar Association, National College of District Attorneys, Wisconsin Department of Justice, Wisconsin Public Defender
Certified to administer roadside Field Sobriety Tests in Wisconsin
Graduate Vehicular Homicide / DWI Program, Northwestern University Center for Public Safety
Past-President: Marinette County Bar Association, Door-Kewaunee Bar Association
Life Member: National Association of Criminal Defense Lawyers (NACDL)
Member: Wisconsin Association of Criminal Defense Lawyers (WACDL)
Member: DUI Defense Lawyers Association
Member: State Bar of Wisconsin, Dane County Bar Association
Admitted to practice: State of Wisconsin, Federal - Eastern District of Wisconsin, Western District of Wisconsin, 7th Circuit Court of Appeals
 

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This page last revised: 24 Nov 2014 14:38:04 -0600 .

 

 

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