Wisconsin OWI Attorneys, Drunk Driving Arrest, Legal Information, OWI Lawyer Tracey A. Wood

Forever. In Wisconsin, a drunk driving conviction is a permanent part of your driving record. Since 1998, Wisconsin has counted all lifetime drunk driving convictions, even those before 1998, in calculating whether a drunk driving arrest should be prosecuted as a third or greater offense. So, unlike other violations, a drunk driving conviction is never purged from your Wisconsin driver record. Back to Top

Why you can't wait until your court date to take action -- how to save your driver's license

If you wait until your court date to take action, it may be too late. You could lose your license -- even before you go to court. You must either demand an "administrative suspension hearing" or a "refusal hearing," depending on whether or not you submitted to a police blood or breath test, or refused to do so. Either way, the time limit is ten days. If you don't demand a hearing, you'll lose your license, regardless of what happens in court. This isn't part of the court case, so you can't wait until you go to court to take care of it. You need to act promptly. Back to Top

Can they take my driver's license even before I go to court?

They can try. You received from the police a "Notice of Intent to Suspend," if you submitted to a police breath or blood test, or a "Notice of Intent to Revoke," if you refused one. (Often, police officers tell people these documents are a "temporary driver's license," which only describes part of their function.) Either way, if you don't demand a hearing by filing the correct demand paper in the correct place and do it within ten days after you get that notice, you can lose your license -- even if you plead not guilty in court. The administrative suspension and refusal revocation provisions of Wisconsin law operate independently of the drunk driving prosecution. So, pleading not guilty isn't a substitute for demanding the hearing within ten days. You need to do both: demand the hearing and plead not guilty. Back to Top

How can I plead "not guilty" if I am guilty?

By saying "not guilty" when the judge asks for your plea. It's your right. A "not guilty" plea in court simply means you're not going to admit anything, and that it's up to the prosecution to prove it' case -- if it can -- by legally obtained and legally admissible evidence.

There's nothing dishonest about pleading not guilty, even if you think you might be guilty. In the American system of justice, it's your right. Back to Top

Why "flunking" the test doesn't mean you can't win the case

That a person 'flunked' a blood or breath test doesn't mean the person will be convicted of drunk driving. Many drunk driving cases turn on whether the police had legal cause to stop, detain or test the driver. If the police act without legal cause, the evidence they obtain cannot be used in court. No evidence means no conviction. Whether police acted properly a legal issue. Having a lawyer who is skilled in defending drunk driving cases is the best way to identify and exploit these defenses. Never assume a police officer's actions are legal merely because a police officer did them. There's a reason that being certified as a police officer takes only weeks, but earning a law degree takes years. Back to Top

Why breath tests aren't always accurate and believable

Breath tests shouldn't be treated as gospel. They aren't always accurate.

Some breath tests can't be used as evidence at trial. The so-called "preliminary breath test," or "PBT" -- the portable test used by police at the scene -- can't be used as evidence at trial. Wisconsin's statutes don't permit it.

All breath test machines, including the ones the State uses as evidence in court (usually an Intoximeter EC/IR machine), can give inaccurate results.

There are lots of reasons. All breath test devices are susceptible to "sampling error." A breath test machine doesn't really test your breath. It tests only a very small part of your breath: generally, only 81 cubic centimeters. Then it states the results in terms that disguise the fact that only very small sample of breath, with an infinitesimal alcohol content, has been analyzed. The result can be accurate only if the sample is actually representative of the alcohol concentration in breath from the lowest part of your lung. But it may not be representative of the lower lung air because the act of blowing into the machine requires the breath to pass through the bronchial tree and mouth. Alcohol can be added to the breath from these sources, giving a falsely high reading when the exhaled breath is sampled and tested.

Though machines report test results in terms of 210 liters -- roughly the volume of a 55 gallon oil drum -- they actually only test 81 cubic centimeters of breath -- about the volume of a bathroom size paper cup. In that sample, it takes only about a millionth of an ounce of alcohol in the breath sample -- 0.0000013 oz. -- to get a 0.10 reading. So, even the slightest extra amount of alcohol added to the sample as it is exhaled will give enormously exaggerated results.

Additionally, the Intoximeter EC/IR used for many breath tests in Wisconsin can have engineering and operating defects which make it vulnerable to "radio frequency interference" from police radios and from cellular telephones. Also, the Intoximeter may have been operated with the "slope detector" function -- a safeguard designed into the machine to prevent testing a breath sample contaminated by alcohol from the mouth -- disabled by the Department of Transportation. (There is more information about the Intoximeter EC/IR in the FAQ right below this one.)

Then, too, some police officers administer breath tests improperly. A breath test should never be administered until after the test subject has been continuously observed for at least twenty minutes immediately prior to the test, to assure that there has been no burp or regurgitation which could have introduced alcohol into the mouth. Some officers ignore the twenty minute rule, and most don't bother to watch the test subject closely. Instead, they just wait out the time by doing paperwork associated with the arrest.

A test result shouldn't be believed merely because it was obtained on a machine used by the police. Police officers believe that breath test machines are infallible. The truth is that even police officers trained in the use of these machines are utterly ignorant about how they work. The cop may be willing to take the accuracy of these tests on faith. You shouldn't be.

You should also check the next topic: What is wrong with the Intoximeter EC/IR breath test. Back to Top

What is wrong with the Intoximeter EC/IR breath test?

Apparently a lot.

Wisconsin has purchased new breath testing machines. These are the Intoximeter EC/IR machines and they replace the Intoxilyzer 5000 in use up in Wisconsin as recently as last year. (Wisconsin doesn't use the "Breathalyzer," and hasn't since the 1970's.)

The Intoximeter EC/IR uses a fuel cell to measure alcohol concentration by converting it to water and electricity.

Recently an official of the Chemical Test Section, Wisconsin State Patrol, Department of Transportation, testified under oath that the Intoximeter EC/IR approved for use in Wisconsin was, in fact, not adequately shielded against "radio frequency" interference. As a result, many machines were taken out of service and installation of others was delayed.

"Radio frequency interference" is a common phenomenon -- it's what opens garage doors when, it seems, no one is around. Cellular phones and police radios create radio waves and can cause "RFI."

Even though the State discovered in 1999 that the Intoximeter EC/IR was vulnerable to "radio frequency interference," it did not change its standards for approval of the machines and has refused to disclose testing which it had privately performed after the manufacturer revised the machines.

The decision by Susan Hackworthy, Chief of the Chemical Test Section, to refuse disclosure of this test data, despite requests for the data under the Wisconsin Open Records Law, makes sense only if the data would embarrass the State. If the tests proved that the machine worker properly, both the State and the manufacturer would want the world to know.

The Department of Transportation is now warning police agencies not to operate cellular phones in the same room as an Intoximeter EC/IR, but there is no reason to believe this is an adequate measure to assure that "RFI," from cellular phones or other sources, is not affecting test results.

The problems, however, don't end with "RFI."

Inspection of these machines has revealed that the "slope detector" function has been disabled. This cannot be done by the machine operator. It can only be done by an official from the Chemical Test Section, because the settings of the machine, including the slope detector setting, are password protected.

The "slope detector" is the "IR" part of the machine. The "EC" in Intoximeter EC/IR stands for 'electro-chemical,' i.e., the fuel cell. This is the part of the machine that actually measures the purported alcohol concentration. The "IR" stands for 'infra-red,' and refers to measuring the absorption of infra-red light by the breath sample as it is blown into the machine. This is the "slope detector" function.

This slope detector function, the measurement of the alcohol in the breath sample as it is submitted to the machine, is designed to isolate contaminated breath samples by aborting a test if the alcohol level being blown into the machine exhibits a sudden spike in alcohol level. A spike in alcohol concentration would indicate "residual mouth alcohol" or another source of sample contamination. Disabling the slope detector eliminates the primary design defense of the machine against testing breath samples contaminated with extra alcohol.

If an Intoximeter test is administered on a machine with the "slope detector" operative, the results of testing may not be admissible in evidence in court. Wisconsin law generally allows only machines which are properly operating to be used as courtroom evidence in drunk driving cases.

More information about the Intoximeter EC/IR can be found at the breath test defenses page of our website. Back to Top

Why the police blood test may be illegal, and the test results can't be used against you

If the police had you do a blood test, you have a hot legal issue -- one that could be a defense to your drunk driving case.

Under current Wisconsin case law, the legal theory of blood testing is so-called "exigent circumstances." The idea is that police don't have time to secure a search warrant because the alcohol will be eliminated by the body before they can get a warrant from a judge. This theory dates back to 1966 and a United States Supreme Court case from California. Since that time, however, warrants by telephone have become an established reality, and police now have the technology of cell phones in squad cars, as well as fax machines and e-mail. This cuts down on the time it would take to get a warrant and makes the process of getting one easier. That all affects whether police can claim "exigent circumstances" as a justification for proceeding without a warrant. Federal courts have held that the timeline by which "exigency" is measured is the time it takes to apply for a warrant by telephone. Wisconsin's Supreme Court ducked this legal issue in the 1980's, and it is now resurfacing.

At present, there are several legal challenges pending in Wisconsin's courts concerning blood testing.

First, the Wisconsin Supreme Court has been asked to review a case in which the trial court threw out blood tests because police could have secured a breath test instead. In that case, the contention is that the availability of breath testing is a factor to be addressed in determining whether police can claim "exigency" justifying proceeding with a blood test without a warrant. Federal courts have ruled in favor of the defense and past Wisconsin Supreme Court precedent supports the defense position.

Second, in a case currently pending before the Wisconsin Court of Appeals, District III, the so-called "implied consent law" has been challenged as unconstitutional. This statute threatens a driver who refuses a blood, breath or urine test which has been requested by police after arrest. The threat is revocation of the operating privilege and "other penalties," and it is stated in the statutorily required advisory of the "Informing the Accused" form. The contention is that any "consent" so secured is coerced and, hence, unconstitutional.

Lastly, the recent decision of the Wisconsin Court of Appeals holding that seizing blood from a drunk driving suspect without a warrant is justified by "exigency" has led to the challenges against the ensuing testing. These challenges are presently pending in a number of state courts. Once the blood has been drawn, there is no further urgency in securing the testing. In fact, testing is usually delayed for several days. Past United States Supreme Court precedent has recognized that there is a Constitutional interest in maintaining the privacy of the content of one's blood which is independent of the Constitutional interest in the integrity of the body, and that separate justifications may be necessary to secure testing than will suffice to justify drawing the blood.

This is an extraordinary time in the defense of blood test cases. Regardless of the blood test results in your case, the legal challenges which are now pending in the courts give strong legal challenges to drivers charged with drunk driving who submitted to police blood tests.

These are cutting-edge legal issues, with which many lawyers may not be familiar. If you've been told that a blood test drunk driving case is 'hopeless,' you need a second opinion. Simply submit our case evaluation form directly from the questionnaire page of this website. Back to Top

Did I do the right thing when I took the test?

Maybe. There is no simple answer to this question. By submitting to a test, you avoid the risk of a license revocation for refusal, but you risk an administrative license suspension if you "fail" the test. Also, submitting means that the police get evidence of your alcohol concentration. But the results of the test many not matter if the police didn't have legal grounds to stop or arrest you, or violated your rights in the testing process.

The real question isn't whether you should have taken the test. The important thing is to take advantage of the defenses which that choice creates. Be sure, as well, to request an administrative review hearing within ten days after you get the "Notice of Intent to Suspend/Temporary Operator's License. Back to Top

Did I do the right thing when I refused the test

Maybe. There is no simple answer to this question. By refusing a test, you may prevent police from learning your alcohol concentration. You will be entitled to discovery of evidence far broader than you'd have without refusing the test. This can be an invaluable advantage in defending the drunk driving case. (We discuss this in detail in the FAQ about 'special defenses' in refusal cases.) Particularly if you are facing a second or third offense drunk driving charge, refusal may be a tactically wise decision.

But, second guessing this decision isn't fruitful.

The important thing is to take advantage of the defenses which that choice creates, and to be certain to request a refusal hearing within ten days afterward, regardless of when your court date may be set. If you don't demand the hearing in time, you lose a lot of defenses, and hurt your case. Back to Top

I took a breath test at the scene -- can they use it against me?

No. Wisconsin statute 343.303 prohibits use of so-called "preliminary breath test" results at the trial in a drunk driving case.

So-called "preliminary breath test" devices can, however, be used in court before trial, in very limited circumstances. The results of a "PBT" can be used when challenging an arrest as illegal, or in contesting a refusal proceeding. In such circumstances, either the prosecution or the defense can produce "PBT" evidence. The "PBT," however, must be one of the two specific models approved for use in Wisconsin under the Wisconsin Administrative Code, Trans. 311. Back to Top

Special defenses available when you refused the test

Refusal cases offer distinct and unique defenses, part of the special procedures which exist in refusal cases. These can be of incalculable benefit in defense of the case.

When a driver refuses to submit to a police breath or blood test, the police officer issues a "Notice of Intent to Revoke." This document starts a separate lawsuit, separate from the drunk driving case, and one that is governed by rules of procedure that are much the same as those which apply in most other civil cases, such as lawsuits for injuries or damages.

This means that a driver in a refusal case is entitled to take depositions, use interrogatories, requests for admission, and requests for production: all tools normally prohibited in a drunk driving case. These procedures are not normally available in a drunk driving case.

These tools can be invaluable. They can permit the defense lawyer to question the arresting officer, for example, in the lawyer's office, under oath, and without a judge present. The answers can be used in court, and to prepare for court. The answers can disclose information the police withheld from their reports, and didn't want to disclose. Back to Top

The blood alcohol "curve" -- why when you drink can be as important as how much you drink?

The law prohibits being intoxicated at the time that you're driving, not some time later when you're finally tested. A test result obtained an hour or more after you were stopped may not accurately reflect the alcohol in your system at the time you were driving.

Alcohol is absorbed and eliminated from the body over time. The rate at which alcohol is absorbed and eliminated is sometimes referred to as the "blood alcohol curve."

The rate of absorption of alcohol into the bloodstream is not particularly predictable, and can depend on a number of factors. Though many people believe that most alcohol is absorbed within an hour after consuming the last drink, that's not always true. Scientific research conducted on so-called "fasting subjects," meaning people who haven't eaten in a long time and have no food in their stomachs, shows that the highest alcohol concentration in a person's blood may not occur until hours after the end of drinking. Moreover, the peak isn't predictable. A "fasting subject" in one scientific study did not reach his peak alcohol level until 183 minutes after the last drink -- more than three hours.

Moreover, as soon as alcohol enters the blood, the liver begins eliminating it. So, even as a person is drinking alcohol, he is eliminating it from his system. Unlike the rate of alcohol absorption, the rate of alcohol elimination is predictable. The rate varies from .013 to .018. with .015 normally used in calculating so-called "burn off" rates. This can mean that a person who has consumed a substantial volume of alcohol over several hours time duration may have a rather low alcohol concentration.

What you drink and what you weigh also matter.

The more you weigh, the more blood you have in your body, and the lower the concentration of alcohol will be after consuming a set quantity of alcohol.

In this setting at least, bigger is better.

What you drink can also make a difference. Though many agencies publish charts that equate an ounce of whiskey with a 12 ounce beer because they contain the same amount of alcohol (including the DOT charts in the thumbnails above), they won't necessarily be absorbed in the same time duration, or lead to the same alcohol concentration. Generally, beer absorbs at about half the rate as hard liquor. In other words, for the same amount of alcohol in whiskey and beer, it may be expected that the alcohol peak of the person drinking whiskey will be twice that of the beer drinker, in half the time.

These scientific facts can be the basis of a defense to drunk driving charges, because even a test above the "legal limit" may not mean that you were above it when you were driving.

For example, a test done within a half hour after drinking may give a high test result because the person is still absorbing alcohol and had a lower alcohol concentration earlier. That may be true, as well, even when the test is two hours or more after drinking.

Gender also matters. A woman will have a higher alcohol concentration than a man of the same weight, assuming identical consumption. Proportionally, women have a greater percentage of their body weight in fatty tissue. Because there are few blood vessels in fat, women have less blood in their bodies than men of the same weight. Less blood means a higher alcohol concentration for the same consumption. That's why calculations concerning alcohol concentrations must always start with the subject's gender.

In training its Breathalyzer and Intoxilyzer operators in years past, Wisconsin's Department of Transportation has employed charts that illustrate the absorption and elimination of alcohol over time according to the gender and body weight of the individual. You can see and use those charts -- they're at our "Curve" Defenses page in this website. Back to Top

The myth of field sobriety tests

"Field Sobriety Tests" aren't tests and they don't measure sobriety. These tests are designed for failure.

All people are inherently imbalanced when standing on one leg or walking heel-to-toe. That's why you have two legs, attached side-by-side. The only creature that normally stands on but one leg is a flamingo. Police officers practice in their training how to do this task, so that they don't fall down when demonstrating it.

Police still use the "finger to nose test" -- even though it was discredited by the National Highway Traffic Safety Administration over fifteen years ago. NHTSA established that no one -- sober or intoxicated -- can reliably do that test. Police officers learn as part of their "standardized field sobriety test" training that the test isn't reliable. Yet police still routinely employ this bogus "test." They do it precisely because no one can pass it.

Don't feel bad if you didn't do well on the police "field sobriety tests." They were designed to assure that you couldn't.

That tells you something about the way police operate. Back to Top

What about my CDL?

Because Wisconsin, like all states, permits only one driver's license to be issued to a person, a drunk driving conviction will always result in suspension or revocation of the person's commercial driver's license, or "CDL." A "CDL" is not a separate driver's license. It is actually an 'endorsement' conferring additional privileges to operate commercial vehicles requiring specific qualifications. It is an endorsement, however, based on issuance of a regular driver's license and, consequently, conviction of an offense requiring suspension or revocation of the driver's license always means that the "CDL" is revoked or suspended. This is true even if the person was not operating a commercial vehicle or 'as a CDL' at the time of the violation.

For those who are subject to federal regulation, a drunk driving conviction will be considered a "major" violation and, thereby, can result in legal disqualification under applicable federal rules.

Insurance carriers often have their own rules governing employment of drivers with drunk driving convictions. Though each insurance company makes its own rules, trucking companies who haul interstate frequently are unwilling to hire or retain drivers with a drunk driving conviction because their insurance carriers will not allow them to do so. Companies who only haul inside Wisconsin generally are not subject to such strict insurance requirements.

There are also specific drunk driving offenses that focus on those who operate a commercial motor vehicle after having consumed alcohol. Operating a commercial motor vehicle with an alcohol concentration of 0.04 or more is illegal in Wisconsin. A driver who tests at or above that level will receive an immediate 24 hour out of service order, in addition to the citation for violating the 0.04 prohibited alcohol concentration law. Back to Top

How can you beat a blood test

By preventing them from using the results.

If your arrest wasn't legal, the blood test results cannot be used against you. If you were stopped without legal cause, that's a basis to keep the test results out of evidence. If you asked for another type of test, and the police didn't let you have it after you submitted to the blood test, that violates your rights under the Implied Consent Law. The Wisconsin Supreme Court held long ago that police blood test results can't be used against a driver if the police interfere with the driver's right to his own, or alternate, test.

Also, courts in at least four Wisconsin counties have held that blood test evidence cannot be used as evidence in a drunk driving case when the police could have asked for a breath test instead. These courts have held that the test results cannot be used as evidence in the drunk driving trial, because it was obtained by the police illegally. Back to Top

Will I go to jail?

Jail is a mandatory penalty for all drunk driving convictions except the first one. There is no jail penalty in a first offense case. For all other drunk driving convictions, there is a minimum amount of jail time which must be served. The amount of the jail time which you are facing will depend on how many times you've had a conviction for drunk driving in the past, your alcohol concentration, and whether you refused a blood or breath test. The more past convictions, the higher the jail time: a minimum of five days for a second offense, 30 days for a third offense, 60 days for a fourth offense. Fifth and subsequent offenses are felonies and you can be sent to prison, if convicted. Additionally, if there was a child under age 16 in the vehicle at the time of the offense, the minimum and maximum penalties double. Back to Top

How much jail time am I facing?

Probably more than the minimum. All counties use a sentencing guideline system that equates the length of the jail sentence to the alcohol concentration revealed by testing, or to the fact of a refusal to submit to testing. Generally, these guidelines require longer sentences for higher alcohol concentrations and for refusing. There is a considerable variation in the severity of these sentencing guidelines among counties, though the scheme in Milwaukee County is generally regarded as the most harsh. Other factors that may be considered include whether there was an accident or other bad driving and, in some counties, whether there has been affirmative involvement in alcohol dependency treatment. Back to Top

Do my past drunk driving convictions count

Many lawyers miss this one.

Under Wisconsin law, if you have past drunk driving convictions or refusal revocations, you're probably subject to higher penalties for a new drunk driving. But, even though you may fall into one of these categories, these penalties may not apply to you if the court didn't follow proper procedures in the past case.

The statutes state that a second drunk driving within ten years of a first drunk driving or refusal revocation, counted from dates of violation, is a second offense. Third offenses count all past drunk driving and refusal revocations in your lifetime, though DOT records generally don't go back past January 1, 1988, and convictions before that date actually are not counted. Convictions and refusal revocations from other states also count.

But, if your past conviction or convictions resulted from a guilty or no contest plea and that past conviction resulted in your going to jail, then the court which accepted that plea was required to follow specified procedures to assure that the plea was a knowing and voluntary waiver of your right to a jury trial, privilege against self incrimination and, if you didn't have a lawyer, your right to counsel. If those procedures were not followed -- and many judges have taken short-cuts in plea proceedings because they were trying to do them quickly -- then the plea is probably Constitutionally invalid. If so, it may not be counted as a prior offense in determining the grade of the present case, i.e., second, third, etc.

Challenging invalid prior convictions is an essential component of proper defense of a third or subsequent offense drunk driving case. Nonetheless, it is a defense which is frequently overlooked. If you are charged with a third or greater offense drunk driving, it is important that you select an attorney who is familiar with the grounds for Constitutional challenges to past convictions.

Past convictions may be challenged in a new case without reopening the old one.

Because first offense cases are not considered criminal, the validity of past convictions normally is an issue only in third and greater offense cases, i.e., only when a challenged past conviction was itself criminal. Back to Top

What are the other penalties?

You can lose your driver's license. You can lose your car. You can be ordered to alcohol treatment. You can be fined a lot of money.

For a first offense drunk driving conviction, you'll lose your license for 6 to 9 months and pay a money penalty of at least $650.00,

In second offense cases, the fines are larger, often over $1,000.00. Third offense cases carry even larger fines, and the State can decide that it wants to keep your car. By the fourth offense, under present law, the State is required to seize your car. A fifth offense is a felony, so there is a serious risk of going to prison, for up to two years.

Anyone convicted of drunk driving or a test refusal is always required to submit to an alcohol assessment, and to comply with whatever "Driver Safety Plan," i.e., Group Dynamics or alcohol treatment, in or out-patient, is recommended by the assessing agency. These services must be paid by the convicted driver.

In addition, depending on the number of prior offenses, the driver may be required to have an ignition interlock installed on his or her vehicle, or may be required to immobilize the vehicle by having it booted. In third and subsequent offense cases, a judge may order a vehicle owned by the driver and used to commit the drunk driving offense seized by the Sheriff, and ultimately forfeited to the State. (That, however, requires a separate lawsuit.)

The statutes allow judges to impose various forms of community service in drunk driving cases, but this authority is seldom exercised. Back to Top

Can I get an occupational license?

Probably. But you may have to wait awhile first. Wisconsin allows an immediate occupational license after a first offense conviction. But there is a waiting period, which can be from 30 to 90 days, in other circumstances. Also, you cannot get an occupational license if you've already lost your license for some other reason in the preceding 365 days. Lastly, you'll have to file proof of insurance with the motor vehicle department to qualify for an occupational license. This is normally done by getting an SR-22 from your insurance agent, and is likely to lead your insurance carrier to raise your rates and, possibly, reduce your coverage. Driving under an occupational license is limited. Generally, you may drive for work purposes or for "homemaking," but you are limited to not more than 12 hours in a single day and 60 hours in the total week, according to a schedule that is maintained in the DOT files. Back to Top

Why did I get two tickets

You received one ticket for drunk driving: "operating a motor vehicle while under the influence of an intoxicant." The second ticket was for having a "prohibited alcohol concentration," which means that you got a ticket for testing above the legal limit. Even though you got two tickets, the penalties for each are the same and, by law, there can be only one set of penalties imposed, regardless of whether you're convicted of one or both tickets. Back to Top

Will my insurance go up if I'm convicted?

Yes. How much will depend on your insurance carrier. A bigger problem than rates, however, may be coverage. Often, insurance companies after a drunk driving conviction refuse to write liability policy limits that are more than $ 50,000 in coverage. This can leave your assets and family unprotected against a lawsuit if there is later a claim. A $ 50,000 liability limits policy can be used up in a week's hospitalization and treatment. So, the real impact of a drunk driving conviction may be to put your family's financial security at risk. Back to Top

Is this a felony?

A first offense drunk driving case is classified as a "civil forfeiture." It is not a crime because it does not carry a possible jail sentence. Usually, second, third, and fourth offense violations are criminal misdemeanor offenses. Fifth offense violations are felonies. However, if a passenger in the vehicle was under age 16, maximum penalties double. This means any third or fourth offense drunk driving where a passenger is under age 16 will be felony offense. Back to Top

Can they take my car?

Wisconsin law allows a judge to order a vehicle to be seized for forfeiture whenever its owner is convicted of a third or subsequent offense drunk driving violation. In a case taken to the Wisconsin Supreme Court, the scope of the law was limited to allow only a vehicle both owned by the driver and used by the driver to commit a drunk driving offense, 3rd or greater, to be forfeited. Forfeiture, moreover, requires a separate lawsuit be filed, after conviction of the drunk driving charge itself. So, if there's no conviction, there can't be a vehicle forfeiture. In 1999, the statute was amended to make this an explicit restriction in the law.

The legislation signed by the Governor in 1999 also made other changes to the forfeiture statute. Under the old law, forfeiture was mandatory if there were a conviction for a fourth or greater offense drunk driving or PAC (or refusal) case. These mandatory forfeitures have now been eliminated, though any vehicle owned by a person convicted of a third or greater offense drunk driving violation is still subject to forfeiture if it was used to commit the offense. It's just that it's optional, in the discretion of the judge and prosecutor, rather tan being required. This means that prosecutors can decide to seek forfeiture of an expensive car, but ignore a junker.

If a vehicle is forfeited, any money owed to the bank or other secured party must be first paid out of the proceeds realized by the Sheriff's selling the car. As a practical matter, this means that many vehicles cannot be forfeited, because the price at a sale wouldn't exceed the outstanding loan balance. Also, leased vehicles cannot be forfeited, because they're not owned by the driver. Similarly, a vehicle owned by an employer or third party, such as a rental car, cannot be forfeited.

As mentioned already, whenever a judge orders a vehicle seized for forfeiture, the statutes require the district attorney bring a separate lawsuit to accomplish forfeiture. Forfeiture cannot be ordered directly in the drunk driving case itself. Back to Top