June 4, 2014 – Back in 2010, Wisconsin’s new Operating While Intoxicated (OWI) Law took effect. The law made changes that affected the prosecution and punishment of drunk-driving offenders. This article will analyze the most important changes and the more problematic repercussions of the law since its enactment four years ago.
Probation and Treatment Programs for Repeat Offenders
The old law only permitted probationary sentences for fourth and higher OWI convictions. The new law, however, authorizes probation as a condition of second and third OWI sentences, if the defendants still serve the mandatory minimum period of incarceration as a condition of probation.
Second and third offense OWI probationary sentences have only become a regular sentencing practice in a few, select courtrooms throughout the state. The majority of circuit court judges routinely stick to the former sentencing structure.
It is important to note that along with the change in the law, many counties also restructured their sentencing guidelines, increasing the jail time for all misdemeanor OWI offenses. This has led to an overall trend of harsher penalties and longer sentences for criminal OWI convictions statewide.
Attorney General Issues Formal Opinion on Driver's License Revocations
Attorney General J.B. Van Hollen on May 30, 2014, issued a formal opinion stating that the Wisconsin Department of Transportation (WisDOT), when determining if an operating privilege should be revoked, should count prior convictions even if those prior convictions were not counted for sentencing purposes.
Van Hollen noted that an offender may “collaterally attack” the use of a prior conviction for purposes of calculating a sentence for a new criminal conviction. However, Van Hollen says a conviction that has been collaterally attacked remains on the record and “it is irrelevant that the offender may have a right to have the conviction disregarded for criminal sentencing.”
Van Hollen also said the Legislature has provided no statutory exception to exclude a conviction based on a collateral attack, and a “collateral attack” does not overturn or vacate the conviction.” WisDOT Secretary Mark Gottlieb requested the clarification.
The new law also authorized expansion of treatment programs. More OWI offenders now have a chance to participate in programs that offer closely monitored intense alcohol treatment. In exchange for successful completion of these supervisory programs, defendants may receive dramatically less jail time than the guidelines would otherwise indicate.
While some counties were quick to develop programs of this nature, the majority have not. The reasons for this are unclear. Despite financial constraints, however, every county has the basic structure for the treatment component of the program already in place. When individuals are charged with criminal OWI offenses, courts often impose absolute sobriety as a condition of bail along with sobriety monitoring in the form of daily breath tests or an ankle bracelet with an alcohol sensor, commonly referred to as a SCRAM device.
Counties that have these monitoring schemes are already equipped to handle the sobriety monitoring element of an alcohol treatment court program. Further, all counties have a local facility or organization that handles the court-imposed alcohol and other drug assessments (AODA) that all persons convicted of OWI are required to complete.
While reliable data regarding the effectiveness of alcohol treatment courts and programs is difficult to obtain, there is ample anecdotal evidence of, at least, some success stories. While treatment may not be particularly effective, it is indisputably far more cost effective than incarceration.
Ignition Interlock Devices
The expansion of ignition interlock device (IIDs) as a mandatory penalty under the new law has been, perhaps, the most life-altering change for those convicted of OWI.
The new law requires that all repeat OWI offenders install IID devices in all registered vehicles for a period ranging from one year to the maximum length of their driver’s license revocation. The law requires first-time OWI offenders to install these devices in their vehicles for a period of one year if their blood alcohol concentration (BAC) was greater than or equal to .15 grams of alcohol/100mL blood or .15 grams of alcohol/210 liters of breath. While an IID order can be problematic for a person who drives for a living, the main glitch with the law lies in the .15 cutoff level.
This number fails to take into consideration an individual’s personal physiology in determining the level of impairment. What this means is that a male first offender could be convicted with a .15 BAC and forced to install an IID in all of his vehicles for a year, but a female could be convicted with a .14 BAC and although her level of impairment was much higher than that of the .15 male’s, she would escape IID penalty.
The law also fails to account for the lack of precision in breath and blood alcohol testing, which is subject to a reasonable rate of uncertainty (by older language, a margin of error) of +/- 5 percent.
Some state prosecutors have been receptive to amending BACs to below a .15 when the defense can demonstrate that the alcohol concentration could have been lower at the actual time of driving. In cases that cannot resolve with an amendment, courts have seen an increase in jury trials where the only issue being litigated is whether or not the defendant’s BAC was .15 or higher. This is quite an expense for the taxpayer, particularly in cases where the defendant has already conceded to guilt on the OWI charge.
Immediate Incarceration for Third and Higher OWI Offenses
The new law requires all persons convicted of a third offense OWI or higher to report directly to jail upon conviction. While this can pose challenges for individuals who need a couple of days to get their affairs together once they learn the length of their sentence, it has been a real nightmare for those felony offenders who enter a plea, but have to set their sentencing hearings for a later date since a pre-sentence investigation (PSI) is required. In felony cases, there is often a dispute between the parties as to whether a jail or prison sentence is the appropriate punishment.
Courts, therefore, order the Department of Corrections to perform an investigation and provide the court with an informational report to assist it in making a fair sentencing decision. These reports take time, however, and the current waiting period is in the realm of eight weeks, during which time an offender is forced to sit in the county jail with no work release privileges. More often than not, persons cannot sustain employment if they are incarcerated with no ability to work for eight weeks.
Thus, even if the pre-sentence report recommends a jail sentence with Huber release to which the judge agrees, a person may have already lost their job. We doubt the legislators considered this PSI waiting period when developing this new law.
Any future legislative change could be as simple as allowing defendants to be released for work while awaiting their PSIs. A few judges have recognized this legal flaw, and have admirably made the decision to stay the entry of a conviction to keep individuals from losing their jobs during the PSI waiting period.
The new law has generally led to harsher penalties and longer sentences for OWI offenders, but Wisconsin still remains one of the easiest states for a person to regain their driving privileges. Every year, lawmakers claim to crack down on drunk driving, yet the most obvious change – criminalizing first offense OWIs to bring Wisconsin in line with rest of the country – has yet to be implemented. It remains to be seen whether that leap will be made in the near future.