Vol. 83, No. 6, June 2010
On April 23, 2008, Mark Benson, a physician, was sentenced in Waukesha County Circuit Court to a jail term for operating while intoxicated (OWI), third offense. As was the custom, the judge gave Benson two weeks to report to serve his jail sentence. Two days later, on April 25, 2008, Benson rear-ended a vehicle stopped at a traffic light, killing the vehicle’s driver, her unborn child, and her 10-year-old daughter and injuring two other passengers. Benson was impaired by prescription drugs at the time. The case generated enormous publicity that emphasized the fact that Benson caused the collision after he had been sentenced for his prior offense but before reporting to serve the sentence.1 Thereafter, the Milwaukee Journal Sentinel published a series of articles promoting the reform of Wisconsin’s laws relating to impaired driving.2 The Benson case and the Journal Sentinel series aroused tremendous public interest in Wisconsin’s impaired-driving laws.3
The legislature responded by passing 2009 Wisconsin Act 100, which takes effect July 1, 2010.4 The media labeled the law as taking a firm stance against drunk driving by enforcing harsher penalties.5 However, a deeper analysis reveals that the new law encourages jurisdictions to consider and determine if a well-monitored treatment program, combined with a period of supervision and a reduced jail sentence, will be a more effective means to deter recidivism.
This article explains several of the important changes made by the Act and their implications for Wisconsin lawyers and judges.
Changes to OWI Laws
Probation Expanded. Defendants convicted of second and third OWI-related offenses might receive more favorable sentences than were previously possible because the new law permits them to be eligible for probation.6 The old law allowed probation only for fourth and subsequent OWI offenses.7 The new law allows judges to order probation as a condition of second- and third-offense OWI sentences as long as offenders serve the mandatory minimum jail time.8
Winnebago Sentencing Option Expansion. The new law expands to all counties the sentencing option formerly only authorized in Winnebago County. The program allows courts to offer all misdemeanor offenders the opportunity to participate in a period of supervision that includes intensive alcohol or drug treatment in which OWI offenders are closely monitored by substance abuse counselors. Successful completion of the program results in reduced jail sentences.9 The legislature’s decision to expand this option affirms that this program is an effective way to avoid recidivism. It will be interesting to see whether counties throughout the state choose to adopt these reduced-sentencing options. Those that do must ensure the curriculum includes both a treatment plan and a period of supervision.
New Misdemeanor Classification of First Offenses when Minor is Present in Vehicle. Wisconsin is the only state that treats first-offense OWI as a civil traffic violation. Although the legislature considered bringing Wisconsin into line with other states by criminalizing all first-offense OWIs, it eventually decided against doing so, for fiscal and political reasons.10 Nevertheless, the new law does criminalize one category of first-offense OWI cases, those in which a person under age 16 is present in the car at the time of the offense.11 This new misdemeanor exposes first-time offenders to the same penalties they would face if convicted of a second-offense OWI: five days to six months in jail and a maximum fine of $1,100.12
Expansion of Ignition Interlock Device Orders and Criminalization of Violation of Interlock Orders. The new law requires individuals to equip their vehicles with ignition interlock devices (IIDs) in a variety of situations. IIDs require the subject to submit a breath sample before and during the operation of the vehicle. The device prevents the engine from starting or continuing if the subject’s breath-alcohol concentration is more than the device’s programmed blood-alcohol concentration (BAC) allowance.
The new law makes the installation of IIDs mandatory in all vehicles owned or driven by persons convicted of second and subsequent OWI-related offenses, subject to the exception referenced below.13 The new law also subjects persons convicted of first-offense OWI to a one-year IID requirement if they were driving with a BAC of 0.1514 or higher at the time of the offense.15 The little-used court authority to order the seizure, sale, or immobilization of the offender’s vehicle has been eliminated.16
IID orders entail significant financial burdens, including a $50 surcharge for the installation of each device and ongoing maintenance and monitoring costs.17 Individuals subject to an IID order will not be eligible for an occupational license until they have submitted proof of the surcharge payment and proof that every vehicle owned by or registered to them has been equipped with an IID.18 In circumstances of financial hardship, the court may decide to exclude vehicles from the IID order requirement, or choose to not order IID at all.19 Additionally, if offenders have income levels at or below 150 percent of the federal poverty level and judges order IID, the new law allows mitigation of the financial impact by reducing the installation and daily monitoring costs by half after payment of the surcharge fee.20 The IID restriction period must be at least one year and may not extend beyond the maximum license-revocation period for a particular OWI-related offense or refusal violation.21
Under the new law, the IID restriction period does not commence until an offender obtains an operator’s license from the Wisconsin Department of Transportation (DOT). 22 The old law allowed the restriction period to commence at the time the judge ordered IID. As a result, certain repeat OWI offenders and persons convicted of implied consent violations will endure IID restriction periods that extend beyond their driving privilege revocations.
Further, Wisconsin’s Huber Law now requires offenders to provide proof of the IID installation within two weeks of the issuance of the IID order to qualify for Huber (work release) privileges.23 This requirement will be problematic for offenders if judges enforce these IID orders at the time of sentencing, because individuals convicted of second and subsequent OWI offenses must wait 45 days to get an occupational license.24 Such offenders will have to install IIDs in their vehicles long before they are eligible for an occupational license and before they are able to drive these vehicles at all. It appears that third and subsequent offense defendants who hope for Huber release will have to complete the IID installation before being sentenced if these IID installation orders commence upon conviction. If defendents fail to do so, they risk not qualifying for Huber release because under the new law sentences for third and subsequent offenses will begin immediately.25
Although it is not emphasized, the new law grants the courts a great deal of discretion in determining the appropriate time at which they should require persons to install IIDs in their vehicles.26 In fact, nothing in the statutory language requires the installation of an IID immediately upon the issuance of the order for an IID. It is more reasonable for courts to order IIDs at conviction but require installation at a later date, when an offender becomes eligible for an occupational license. This avoids the problem of having unused IIDs in vehicles that will not be driven for a minimum of 45 days. Defense attorneys should take note of the new statutory provisions regarding IIDs, because enforcement of the difficult deadlines will require substantial planning and preparation before defendants are sentenced.
The new law also creates a new misdemeanor offense that criminalizes removing, disconnecting, tampering with, or failing to install court-ordered IIDs.27 The penalties include incarceration of up to six months and fines of $150 to $600 for a first-offense conviction, with fines increasing for each subsequent conviction of this nature.28 A conviction of this type will extend by six months the period offenders must keep IIDs in their vehicles.29
Many defense lawyers see little or no benefit for a defendant to plead guilty to a first-offense OWI, because a guilty verdict at trial does not result in a substantially harsher penalty than if the case had been resolved with a plea agreement. Thus, the impediment to first-offense OWI litigation is largely the financial burden on the defendant. The new IID law changes that financial calculation. IID devices are costly to the users, especially if installation is required for multiple vehicles. It remains to be seen whether this increase in the cost of a first-offense OWI conviction will result in substantially more trials, thus further weighing down an already overburdened court system.
Under the new law, the parties may still stipulate to a lower BAC in cases in which the BAC was 0.15 or higher, subject to the limitations of Wis. Stat. section 967.055.30 In cases in which the test result is a 0.15 or higher, but there is other evidence to show that the driver had a BAC under 0.15 at the time of driving, prosecutors may be willing to stipulate to lower BAC levels. Defendants may then be more inclined to negotiate resolutions to their cases to avoid having to equip their vehicles with IIDs. On the other hand, in the absence of such a stipulation, many first-offense cases that normally would have resulted in plea agreements may now require litigation regarding whether the BAC exceeded the 0.15 threshold. Thus, to adequately defend their clients, attorneys representing first-time OWI offenders with a BAC of 0.15 or higher must become familiar with the science of breath and blood tests, including the level of uncertainty in such tests, and all potential forensic defenses.
The new law also extends the application of IID orders to first offenders who refuse to submit to an evidentiary breath or blood test.31 In cases in which the defendant refused to submit to the evidentiary test and was charged with a refusal pursuant to Wis. Stat. section 343.305(10), most Wisconsin jurisdictions encourage a dismissal of the refusal charge in exchange for a guilty plea to the OWI charge. Hence, in cases in which the defendant may be subjected to an IID order because of an alleged refusal violation, there now will be greater incentive for the defendant to enter into a negotiated disposition that avoids the IID requirement.
The new law inadvertently creates an anomaly in Wisconsin’s implied-consent law, which was enacted to encourage persons arrested for OWI to submit to evidentiary tests of their breath or blood. If the dismissal of the refusal charge in a first OWI-related offense will relieve defendants of the IID penalty, savvy persons who believe they are driving with a BAC of 0.15 or higher will be more inclined to refuse the test.
New PAC Level of 0.02 for Offenders Subject to IID Orders. The new law extends the prohibited alcohol concentration (PAC) level of 0.02 to any person who is subject to an IID order for the entire duration of that order.32 Under the old law, the PAC level of 0.02 applied only to persons with three or more OWI convictions.33 As a result, individuals driving under IID orders may receive an additional PAC charge if they are arrested and have a PAC equal to or greater than 0.02, regardless of the offense number. Although they might not be charged with OWI if they are at the 0.02 level, a PAC charge of this type will subject an offender to the same potential penalties that an additional OWI or 0.08 PAC charge carries: an alcohol-related offense conviction with additional jail time and fines.
Elimination of Expunction for Violations of PAC Below 0.10 and Elimination of “Baby PAC” Negotiations. Under the old law, an available disposition in a case was the so-called baby PAC. This applied to first-offense PAC cases under Wis. Stat. section 346.63(1)(b) when the driver’s blood-alcohol concentration was between 0.08 and 0.099 at the time of driving. A baby PAC violation did not require offenders to pay additional costs, and it eliminated the requirement that they comply with an alcohol or other drug assessment program.34 The old law provided an exception to the requirement that the DOT permanently maintain records of suspensions, revocations, and convictions; the DOT was required to expunge records of 0.08 - 0.099 first-offense PAC violations after 10 years from the date of conviction, provided the individual had no other alcohol-related suspensions, revocations, or convictions during that 10-year period.35
Andrew Mishlove, U.W. 1981, practices statewide. He is a board-certified OWI defense specialist, whose practice is limited to OWI defense.
Lauren Stuckert, Marquette 2009, is an associate of the Law Offices of Andrew Mishlove. During law school, she clerked and worked for attorney Daniel L. Shneidman.
The authors thank Attorney Barry Cohen for his valuable suggestions.
The new law abolishes that expunction exception, even for those cases in which the offense occurred before July 1, 2010.36 Thus, persons who anticipated an expunction of their records for cases within the last 10 years will not receive that important relief. This will be unsettling news for offenders who entered into baby PAC agreements within the last 10 years, believing that these convictions would be automatically cleared from their records after 10 years. The legislature and the DOT may revisit this issue in light of the potential for litigation regarding the ex post facto objections.
The new law prohibits most baby PAC negotiations. While it is still permissible to dismiss the OWI charge in return for a plea to the PAC charge, it is no longer permissible to amend the alleged alcohol level to allow the defendant the benefit of a baby PAC negotiation.37It is important to note that under the new law, the charges of OWI and PAC carry the same penalties, regardless of the offense number or BAC level. However, although a person can be convicted of both OWI and PAC, the violations are joined for purposes of sentencing; thus, a person can only be penalized for one or the other.
Waiting Periods for Occupational Licenses and Abolition of the “Federal Repeater” Penalty. Under Wis. Stat. section 343.10, many people whose regular driver’s licenses have been revoked can still obtain a restricted driver’s license, called an occupational permit. The new law provides relief for OWI offenders who, under the old law, had to endure long waiting periods before they were eligible for an occupational license. Under the old law, a second-offense OWI conviction required a 60-day waiting period before a person could obtain an occupational permit; a third or subsequent offense conviction resulted in a 90-day waiting period.38 The new law shortens the waiting period to 45 days for all alcohol-related drivers’ license revocations resulting from criminal OWI-related convictions.39
The new law provides more dramatic relief for individuals who have committed two or more OWI-related offenses within a five-year period. The old law required these “federal repeaters” to wait a full year before they were eligible for an occupational license.40 The new law permits even federal repeaters to obtain occupational licenses after a 45-day waiting period. It bears repeating that all offenders must complete the required statutory assessment and must prove they are in compliance with the ordered driver-safety plan and IID requirements to obtain an occupational permit.41 The abolition of the federal-repeater waiting period applies to offenses committed on or after July 1, 2010. Under section 343.02(1), the DOT may consider extending this reduced waiting period to offenses that occurred before July 1, 2010 but for which sentencing occurred after July 1, 2010.
Penalty Adjustments for Third and Subsequent Offenses – Longer Sentences and Immediate Incarceration. The new law makes several adjustments to third and subsequent OWI offenses. It increases the mandatory minimum jail sentence for a third-offense OWI from 30 days to 45 days.42 Under the old law, courts had the discretion to allow all criminal offenders up to 60 days to report to serve a sentence.43 Under the new law, third and subsequent offenders may not be released on bail once a judgment of conviction is entered. Courts still have the authority to stay entry of a judgment of conviction after a plea, effectively delaying the sentence.44 An additional exception is provided for situations in which the court finds good cause to delay the start of the sentence, such as a pending appeal or a probationary disposition.45 A court still may allow an offender up to 60 days to report to jail for a second-offense violation. Nevertheless, attorneys for third and subsequent offenders must be prepared to deal with the issue of immediate jail reporting upon conviction.
New Felony Classification for Fourth Offense If Prior Conviction in Past Five Years. If a fourth-offense OWI is committed within five years of a third offense, the fourth offense is now a Class H felony, with the same penalties as a fifth- or sixth-offense OWI. These offenses will carry a period of imprisonment of six months to six years, with a minimum initial confinement of six months and a period of extended supervision not to exceed three years.46
Increased Penalties for Seventh and Higher Offenses. The penalties for seventh, eighth, and ninth offenses have been increased. Such offenses are now classified as Class G felonies, which subject offenders to bifurcated sentences with a minimum three-year confinement term and a maximum of five years’ extended supervision.47
Tenth and subsequent offenses are classified as Class F felonies and carry a bifurcated sentence with a minimum four-year confinement term and a period of extended supervision not to exceed five years.48
New Felony Classification, OWI-causing Injury (Second or Higher Offense). The new law categorizes OWI-causing-injury offenses as Class H felonies if they stem from a second or subsequent OWI-related offense. These offenders will be subject to a maximum sentence of six years’ imprisonment (three years’ initial confinement and three years’ extended supervision) and a maximum fine of $10,000. The new law also doubles the applicable maximum fines and imprisonment periods if a person under age 16 was in the vehicle at the time of the injury-causing offense.49
Increased Criminal Processing Fee. The new law increases the criminal processing fee from $20 to $163 for all criminal OWI offenses.50
Legislative Error: Extended License-revocation Periods. Section 343.30 is the statutory provision that discusses revoking licenses upon OWI conviction. The authors believe that subsection (1r) of that section is a legislative drafting error. The statute provides that “for any revocation the court orders under sub. (1q), the court shall extend the revocation period by the number of days to which the court sentences the person to imprisonment in a jail or prison for an offense related to the refusal.”51 This provision appears to mean that only those criminal OWI offenders who also were convicted of a Wisconsin implied-consent-law refusal violation will be subjected to these revocation extensions.
The Legislative Reference Bureau’s analysis suggests otherwise: it states that this additional statutory penalty will be imposed on any individual who is convicted of a criminal OWI-related offense that subjects him or her to a minimum mandatory period of imprisonment.52
It appears that the basis for creating section 343.30(1r) was section 343.305(10g), which was created to extend refusal revocations by the length of a person’s jail or prison sentence. However, because jail sentences are not permitted in refusal cases, subsection (10g) is anomalous. Therefore, since these revocation extensions only affect refusal jail sentences (which do not exist), no revocations should be increased by the length of a person’s sentence.
If, as the Legislative Reference Bureau notes suggest, the legislative intent was to have the revocation period increased by the number of days spent in jail related to all OWI offenses, then the statutory language needs to be fixed.
Federal Criticism regarding Wisconsin’s Repeat-intoxicated-driver Laws. An official from the National Highway Traffic Safety Administration (NHTSA), the federal entity that is involved in state impaired-driving law enforcement, has communicated to the Wisconsin DOT that its preliminary review suggests the new laws may not comply with federal mandatory-license-suspension requirements.53 Federal law requires that states must require either a minimum one-year license suspension for all repeat intoxicated drivers or a license suspension of 45 days followed by a reinstatement of restricted driving privileges for the remainder of the suspension period.54 The NHTSA official concluded that, in his opinion, a Wisconsin occupational license allows more expansive privileges than are permitted under the federal statute. These alleged expansive privileges include operating a vehicle when it is an essential part of the driver’s occupation or trade, traveling to and from church, and traveling to locations necessary to comply with a driver safety plan.
A DOT official advised the authors that the DOT believes some assumptions in the opinion are incorrect and that the DOT can administer the new law in a manner that complies with federal law. The DOT hopes that the issue can be resolved before July, when the new legislation becomes effective. The NHTSA might, however, insist that Wisconsin make occupational licenses more restrictive for repeat offenders or be subject to a penalty of transfer of federal highway funds. Such a penalty would result in a transfer to Wisconsin’s highway-safety program of federal dollars intended to be used for construction projects throughout the state.55 Until this issue is resolved, counsel should advise defendants who have two or more OWIs in any five-year period that there is uncertainty about what types of operation will be allowed on any occupational license they obtain, and that the licenses may limit operation more rigidly than they have in the past.
Wisconsin suffers from an extraordinarily high rate of drunken driving.56 This has long been a matter of public concern and activism. Wisconsin counties with a high volume of drunk driving cases now are able to encourage treatment through the court systems. At the same time, penalties associated with OWI convictions have been increased several times in recent years to deter people from driving while impaired. Even in a first-offense case, the consequences of an OWI conviction may have a drastic effect on the life of an offender, particularly one who drives for a living. OWI law and science also have become far more complicated. With more than 30,000 OWI cases per year in our state, lawyers need to be aware of all consequences of the recent changes and their effects on OWI litigation.