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Legislature rewrites Operating While Suspended and Operating After Revocation laws

by John Sobotik

Any attorney practicing traffic law in Wisconsin has undoubtedly scratched his or her head a few times in reviewing a client's or defendant's Operating After Revocation (OAR) or Operating While Suspended (OWS) case. To cut down on the confusion, the Wisconsin Legislature rewrote the statutes related to operating a motor vehicle with a suspended or revoked driver license.

The rewrite, 1997 Wis. Act 87, is the culmination of several years of work by a task force that included legislative sponsors Rep. Rebecca Young and Sen. Joanne Huelsman. Unfortunately, untangling the web of confusion created by past legislative enactments will take time. The Division of Motor Vehicles (DMV) has up to two years to implement the new law.

The problem with existing law

Under existing law, there is no difference between OAR and OWS charges. They are one and the same offense. Different penalties are applied, depending upon the reasons for the revocation or suspension and how many prior offenses have been committed.

For example, a driver convicted of OWS whose license is suspended for failure to pay a forfeiture, such as a jaywalking citation, is fined up to $2,500 depending upon the number of prior OAR or OWS violations he or she has committed. A driver who commits a second or greater OAR or OWS offense during a suspension or revocation for certain alcohol offenses, such as operating while intoxicated, faces mandatory imprisonment and mandatory minimum fines. A driver whose license is suspended or revoked for some other reason faces criminal penalties for a second or subsequent offense, but no minimum mandatory penalties are required.

Sorting out which penalties apply to drivers with complicated driving records became a pastime neither police, prosecutors, defense attorneys, nor the courts enjoyed. In fact, appellate courts were repeatedly critical of the statute.

The new scheme

When 1997 Wis. Act 87 goes into effect, OAR and OWS will be different offenses under the law. All OWS offenses become civil infractions penalized by a simple citation. Because OWS is a simple "traffic ticket"-type offense, the scienter element of the offense is removed.

All OAR offenses become criminal offenses punishable by fines and imprisonment under the new law, with scienter remaining an element of the offense. The penalty structure is similar to that used in drunk driving cases; judicial districts will establish sentencing guidelines imposing penalties of up to a maximum of six months imprisonment and $2,500 in fines

Creating differences between OWS and OAR offenses, however, required analyzing the statutory provisions related to driver license sanctions. While giving courts or the Department of Transportation (DOT) authority to suspend or revoke a driver license was of relatively little consequence under the previous law, revoking a license under the new system will put a driver who violates a revocation order into a class of criminal defendants.

So the Legislature went through the statutes and made choices about which license sanction to impose. For most offenses, operating privileges are suspended. Serious anti-social driving behavior, such as driving drunk or eluding police, however, results in license revocation. To deal with drivers who just won't stop driving with a suspended license, the new law provides for license revocation following a fourth conviction of OWS. This allows courts to deal with such drivers in the criminal system.

Habitual traffic offenders

Another class of drivers that expanded under the existing legislation were those classified as habitual traffic offenders. These are drivers who have had their licenses revoked for five years following convictions for four major or 12 minor traffic offenses in five years.

Both OWS and OAR are considered major offenses under existing law. 1997 Wis. Act 84 recategorizes OWS and OAR offenses as "minor offenses," which should result in far fewer drivers being subject to these five-year habitual traffic offender revocations.

In the interest of equity, the Legislature also gave the DOT authority to use the new rules to reevaluate drivers whose licenses currently are revoked as habitual traffic offenders. The DMV will implement this part of the new law on Aug. 1. Drivers who want their status reevaluated should call the DMV's compliance and restoration section at (608) 266-2261 anytime after Aug. 1.

Conclusion

1997 Wis. Act 84 fundamentally changes and simplifies OAR and OWS law in Wisconsin. The enormity of the changes in the 60-page bill, and the bill's impact on DMV practices, necessitated a two-year implementation period. Expect to see the new law become effective in the early part of 2000. The law's habitual traffic offender provisions, however, become effective earlier, on Aug. 1 of this year.

Wisconsin Lawyer