Vol. 71, No. 7,
July 1998
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.
Next Page
|