News Briefs
Legislature rewrites Operating While Suspended and Operating After
Revocation laws
by John Sobotik
1997 Wis. Act 84 fundamentally changes OWS and OAR laws in
Wisconsin. Some provisions become effective as early as Aug. 1.
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.
John Sobotik is an attorney with the
Wisconsin Department of Transportation and served as staff attorney to
the Governor's Task Force on Operating While Suspended and Operating
After Revocation Laws.
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