Wisconsin is no stranger to unique quirks in its legal system. It is one of the few states in the country that 17-year-olds are charged as adult defendants. It is also the only state where law school graduates can become attorneys via diploma privilege, bypassing the Wisconsin bar exam.
This article centers around Wisconsin’s unorthodox operating while intoxicated (OWI) laws – a where a first offense is a noncriminal traffic citation as opposed to a much more serious misdemeanor or felony charge.
Matthew Kline, Ohio State 2021, is an assistant attorney general with the Ohio Attorney General’s Office in Columbus, Ohio.
Like every other state in the country, Wisconsin has laws prohibiting driving a vehicle while under the influence of drugs or alcohol. However, the leniency displayed for first time offenders of Wisconsin’s OWI laws has no parallel across the country.
Statutory Framework
The governing law for OWIs in Wisconsin can be found in Wis. Stat. section 346.63. The statute lays out that it is unlawful for anyone to operate a vehicle in the state under the influence of an intoxicant, a controlled substance, a controlled substance analog, any combination of the three, or any other drug that could impair one’s operation of a vehicle. On this front, the Wisconsin statute largely mirrors OWI statutes in other jurisdictions.
Supplementing the statute is the Wisconsin Department of Transportation (DOT), which provides a guideline of the various levels of OWI offenses. In particular, it notes that there is no confinement sentence for the first offense, only financial and operating penalties.1
Furthermore, the Wisconsin DOT notes that a second OWI offense that takes place 10 years after the first offense and does not involve any bodily injury or passenger is treated the same, merely as a traffic ticket offense with no confinement sentence. Only a second OWI offense that occurs within 10 years after a first offense, or a third OWI offense, is classified as a misdemeanor offense and then subject to a required confinement period in addition to the other penalties.
As previously mentioned, Wisconsin is unique among the country for first-time OWI offenders (and even second-time offenders depending on the length of time between the first and second offense), avoiding a misdemeanor charge. The treatment of the first offense as an ordinance violation could be seen as an acknowledgement that people make mistakes and allow someone to undergo consequences for this action that don’t involve jail time or a mark on their criminal record. At the same time, the classification of a first OWI ticket as a noncriminal offense could give the impression that it's not a serious offense, thereby encouraging a greater number of drivers to partake in the action.
Wisconsin OWI Statistics
It's no secret that Wisconsin has an active drinking culture, as evidenced by the slogan “Drink Wisconsinbly.” Unfortunately, the state has grim statistics when it comes to the number of residents who have been convicted of OWI offenses. In a recent news conference to legislatively push for an ignition interlock bill, Wisconsin Sen. Chris Larson noted over 770,000 Wisconsin residents have at least one OWI conviction, which averages out to one out of five drivers across the state. In just the year 2022 alone, over 23,000 Wisconsin drivers were convicted of an OWI offense.2
Wisconsin’s arrest rate for OWIs looks bleaker when compared to other states. Per recent statistics, there have been 406.2 people arrested for OWI offenses per 100,000 people in the state of Wisconsin.3 Compared to the rest of the country, this puts Wisconsin in the top 10 states for OWI arrests.
More concerning is the fact that the majority of the states ahead of Wisconsin include North Dakota, Wyoming, Alaska, and Montana – sparsely populated states with vast distances between towns and cities. Such factors create circumstances where it is more favorable for individuals to engage in drunken driving due to the lack of public transportation, walkable cities, and limited rideshare app coverage. Wisconsin has regions that share these characteristics but is also anchored by major cities with extensive public transportation and pedestrian infrastructure, such as Madison and Milwaukee.
Consequences of Operating While Impaired
The harm of so many individuals at risk of drunken driving is apparent not only in Wisconsin, but across the country. In 2022 in the U.S., there were 13,524 fatalities in motor vehicle crashes where there was at least one driver that was alcohol impaired.4 In Wisconsin during the same period, there were 7,519 crashes that involved impaired drivers.5 In these crashes, 184 people were killed and over 3,500 people were injured.6 Many of the injured parties in these crashes tend to be innocent bystanders who were not involved with operating vehicles under the influence.
The consequences in the criminal justice system for the offender can often be equally severe. While the first OWI offenses are essentially traffic tickets, there is still a hefty financial penalty in addition to operator restrictions depending on the facts of the OWI case. These consequences become greater as the number of OWIs on a driver’s record increases, with an OWI fourth offense and above classified as felonies with extensive jail or prison sentences and driver’s license revocations.
An underappreciated aspect of the first OWI not being classified as a misdemeanor offense is that many charged individuals lack the resources to litigate the case in court. Because there is no jail sentence for a first OWI offense (or second if more than 10 years after the first one), a charged individual does not qualify for public defender services and has to pay for their own legal representation. Lacking funds for representation from the private bar, many individuals will simply plead guilty and pay the fines and court costs associated instead of contesting the ticket.
This can prove pivotal in OWI third offenses or greater, where an individual can face significant jail or prison time, financial penalties, and loss of driving privileges than they would have otherwise in another state for their first criminal OWI offense.
Time for a Change?
Drunken driving is a problem that cannot be ignored. Even at the height of the 2024 presidential election, the issue of pervasive drunken driving in the state was on full display when an intoxicated Milwaukee driver drove his vehicle on the wrong side of the interstate and nearly collided with the motorcade of Vice President Kamala Harris.7
Over the past few years there has been an increased push across the state for stricter penalties for OWI offenders. Sen. Larson has repeatedly introduced legislation to broaden ignition interlock device requirements for OWI convictions, with each proposed bill failing to pass in the legislature.8
The Centers for Disease Control and Prevention (CDC) says that use of ignition interlock devices reduces repeat drunken driving by about 70%.9 Other efforts have been taken by local law enforcement, such as officers in Milwaukee and Waukesha counties ramping up enforcement in the overnight hours during the holiday season – when more impaired drivers are on the streets.10 Increased police presence on the roads can often serve as an effective deterrence to would-be impaired drivers.
One underdiscussed option would be an update to the statutes, so that Wisconsin’s OWI laws fall more in line with the rest of the country. With a more robust law that criminalizes first OWI offenses, drivers may be more inclined to avoid operating impaired on the roadways. Furthermore, putting OWI defendants before a criminal court for their first offense will more effectively emphasize the severity of their actions, and may tamp down on repeat offenders.
While harsher criminal penalties do not completely deter potential offenders, when coupled with other actions such as required ignition interlock devices and increased police patrols, it may prove an effective solution in lowering Wisconsin’s drunken driving rate.
Conclusion
Despite extensive efforts to illustrate the dangers of drunken driving, OWI offenses are still an all-too-common occurrence across Wisconsin and the U.S. Complicating matters is Wisconsin’s OWI law, which provides a unique penalty system for an individual’s first and possibly second OWI offenses.
Indulging in alcohol is fine, and has long been a pastime in the state due to the outgoing nature of Wisconsinites and a plethora of excellent breweries. However, once someone is behind the wheel of a vehicle, that responsibility disappears, and lives get put in danger. Perhaps to emphasize the severity of this issue, there may need to be some changes to the law to further limit the number of people engaging in dangerous behavior while intoxicated.
The views expressed in this article are the author’s own and do not reflect the views of the State Bar of Wisconsin or any other legal entity or office.
This article was originally published on the State Bar of Wisconsin’s
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Endnotes
1OWI and Related Alcohol and Drug Offense Penalties (As of October 1, 2020), Wisconsin Department of Transportation.
2 Ellie Nakamoto-White, “Every 2 hours, a Wisconsite is affected by drunk driving. Here’s how some state lawmakers are working to change that,” CBS 58 WDJT - Milwaukee, Feb. 15, 2024.
3 “DUI Arrests and Fatalities Across the US,” (January 17, 2023), American Addiction Centers, Inc., Jan. 17, 2023.
4Traffic Safety Facts: 2022 Data Alcohol-Impaired Driving, National Highway Traffic Safety Administration (NHTSA), Aug. 1, 2024.
5Impaired Driving Crashes in Wisconsin, Wisconsin Department of Transportation, 2022.
6 Id.
7 Ben Jordan, “Body cam video shows arrest of man accused of driving drunk the wrong way toward VP Harris’ motorcade,” TMJ4 News-Milwaukee, Nov. 6, 2024.
8 Ryan Burk, “State Senator pushing for tougher OWI ignition interlock requirements,” Spectrum 1 News, Feb. 15, 2024.
9 “Increasing Alcohol Ignition Interlock Use,” CDC, April 24, 2024.
10 Mike Beiermeister, “Police officers step up efforts against drunk driving as holiday season kicks off,” TMJ4 News-Milwaukee, Nov. 27, 2024.
