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.Which things
are counted as prior offenses is listed, confusingly, in
Sec. 343.307, Wisconsin Statutes. Penalties (and classification
as non-criminal/misdemeanor/felony) is determined by the penalty
provisions in
Sec. 346.65, Wisconsin Statutes.
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. Again, you
can have two first offenses more than ten years apart but not three.
The look-back period for a any offense after the second is January
1, 1989. The look-back period to determine if a second actual
offense is charged as a second offense is ten years, date of offense
to date of offense.
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:
- Refusing to take a chemical test
- A deferred prosecution for OWI / DUI / Drunk Driving / Drugged
Driving that did not result in a conviction
- Operating as an underage drinker you were convicted of an
absolute sobriety violation (would not count if in Wisconsin)
- 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 (Now would be felony - law has
changed) |
| 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 (now would be Felony because the
law has changed) |
| 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 (now would be Felony because law
has changed) |
| 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. The law on this has changed and now all fourth
offenses are felonies. 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. The
June 1 offense would have counted as a second offense in
Wisconsin had List been the law.
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
Zoom Court Appearance Information
Attorney at Law
5555 Odana Road, Suite
211
Madison, WI 53719-1280
Telephone (608) 308-9645
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 prizeCovid19PlanForReopening2022-03.pdf
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: National College for DUI Defense
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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