Are You Facing an Impairing Driving Charge?

Operating while under influence (OWI) types of cases are full of their own nuances.  An effective defense requires that your attorney have in-depth knowledge of Wisconsin’s OWI laws, the penalty structure for such offenses, the field sobriety testing procedures used by the police, and the devices used to test people’s breath or blood for the presence of alcohol.  Below is a brief primer on the things you’ll want to understand if you are currently facing this type of charge:

Understanding the Different Charges

The common charges associated with impaired driving in Wisconsin are often confusing and seemingly repetitive.  To understand what to do about the charges you face, you need to first understand the charges themselves.  Here is a partial list with a brief explanation of each type of charge:

  • Operating while under the influence (OWI) – This is the most common impaired driving charge in Wisconsin.  Normally this is associated with operating while under the influence of intoxicant (i.e. alcohol), but it can also be charged if the police think you were under the influence of a controlled substance, which includes both illicit drugs and even prescription medication.  To prove you guilty of the charge, the State must show that you were operating a motor vehicle on a public roadway or other area held open to the public and, at that time, your ability to operate safely was impaired because you consumed alcohol or some other substance.  The State does not need to show any particular level of alcohol in your system to convict you of this offense.  A common question is how an OWI is different from a DUI or DWI.  The answer is all three are just different abbreviations for the same type of offense.  In Wisconsin, it is OWI because our law uses the verb operate, instead of drive.
  • Operating with a prohibited alcohol concentration (PAC) – This charge is often filed along with an OWI.  To prove this charge, the State needs show that you were operating a motor vehicle on a public roadway or other area held open to the public and, at that time, you had a prohibited alcohol concentration.  For most people that is 0.08 g/210L, but for some people it can be as low as 0.02 g/210L.  Like an OWI, a PAC can be charged as either a forfeiture, misdemeanor, or felony depending on the number of the offense.  First offenses are civil (non-criminal) forfeitures.  Second, third, and some fourth offenses are misdemeanors.  Some other fourth offenses (those that occurred within five years of the third offense) and all fifth and subsequent offenses are felonies.  While you will probably be charged with both an OWI and PAC, and you might even be convicted of both, you can only be punished for one of them.
  • Implied Consent Violation/Refusal – Wisconsin law holds that anyone operating a motor vehicle has consented to submit to a chemical test of his/her blood, breath, or urine if they are arrested for an impaired driving offense.  This concept is called “implied consent.”  While you can still refuse such a test, you will be charged with a separate civil offense for violating the implied consent law.  These cases, commonly known as refusals, are prosecuted separated.  The most important thing to keep in mind if you are facing a refusal is that you must demand a hearing within just ten days or you will lose any chance of defending yourself against the charge.  Also, keep in mind that if you refuse, the officer might still be able to force you to submit to the test, which means it is possible to face an OWI, PAC, and refusal all at the same time!
  • OWI or PAC with a minor passenger – If when you are arrested for OWI or PAC, you had a minor passenger under the age of 16 in the vehicle with you, then the minimum and maximum fine, jail time, and driver’s license revocation period all double.  A first offense involving a minor passenger is a criminal misdemeanor, not a civil forfeiture.  A third or subsequent offense with a minor passenger is a felony.
  • OWI or PAC causing injury – This is what you will be charged with if you are arrested for an OWI or PAC and you were involved in an accident in which someone was injured.  This includes one of your passengers, not just someone in a different vehicle.  As with the charges involving a minor passenger, the potential penalties you can face increase because of your involvement in the injury of another person.

What You Need to Know about Field Sobriety Tests

Field Sobriety Tests (FSTs) are a series of tests that police officers administer to people they suspect might be operating under the influence.  There are three standard tests, which are used by most officers in such cases.  Officers receive training in how to administer these tests using materials developed by the National Highway Traffic Safety Administration (NHTSA).  NHTSA training requires that these tests be administered in a certain manner if someone wants to trust their reliability.  Not all officer actually do that.  Here is a brief description of the three standardized FSTs:

  • Horizontal Gaze Nystagmus (HGN) – This test looks for an involuntary jerking of the eyeball that can be caused by alcohol consumption.  While you are instructed to keep your head still and follow the officer’s stimulus (usually a pen of flashlight) with your eyes only, that is not the test.  It is the jerking of the eyeball for which the officer is actually looking.  It’s important to note that there are other causes of nystagmus besides just drinking alcohol.  Sometimes, officers fail to rule out any of those other causes.
  • Walk and Turn (WAT) – This test involves you walking a series of steps on a line, turning and doing a second series of steps back.  The officer is looking for a lot of different clues on this test, which he/she will then try to use against you in court.  It is easier than you might think to “fail” this test, even if you are stone cold sober.
  • One Leg Stand (OLS) – For this test, an officer asks you to raise one foot and maintain your balance for 30 seconds while counting out loud.  As you can imagine, there are several different physical ailments that would prevent you from doing this test regardless of whether or not you drank alcohol.  If you put your foot down, sway, hop, or use your arms for balance, the officer will hold it against you.

Sometimes officers use other tests besides or in addition to the three standard tests described above.  These tests might involve touching the tip of your nose with the tip of your finger, reciting a portion of the alphabet, or counting backwards.  None of these non-standardized tests have been shown to be at all accurate in predicting whether someone is impaired.  Even the standardized tests are by no means 100% accurate, and remember officers are supposed to administer them just as they were instructed to do so.

What You Need to Know about Chemical Tests of Your Breath and Blood

As discussed above, Wisconsin’s implied consent law allows the police to request a sample of your blood, breath, or urine for alcohol testing if you have been arrested for an OWI or in certain other circumstances.  (Almost no jurisdiction in Wisconsin actually does urine tests.)  If you refuse such a test, you can be punished for that refusal as a separate offense.  Also, if you refuse, you might still be forced to provide a sample anyway.

Many people when faced with a test result above the legal limit think there is nothing they can do to defend themselves.  This is simply not true.  First of all, the test itself might have taken place a long time after you were actually stopped.  This means that even if the machine’s estimate of your alcohol content is correct, it does not reflect the level you were at when you were actually driving.

Furthermore, there are reasons to doubt the accuracy of both breath and blood tests.  The breath test machines used in Wisconsin rely on a number of assumptions to make their estimates, and all of those assumptions don’t necessarily apply to you.  Also, a number of external factors can impact the results of a breath test, such as body temperature, breath temperature, breathing patterns, and certain medical conditions.  Blood tests can also be flawed because of the way the sample was collected, preserved, or handled at the laboratory.

Understanding the Impact on Your Driving Privileges

If you submit to a chemical test that shows you had a prohibited alcohol concentration at the time of operation, the Department of Transportation will try to administratively suspend your license for six months.  This administrative action takes place separate from any civil or criminal charges you might be facing.  You can demand a hearing to challenge the administrative suspension of your license, but you must make that demand within ten days of receiving notice that you will be suspended (usually within ten days of your arrest).  If you hire our firm in time, we will be happy to request that hearing for you and handle it when the time comes.

If you are convicted of an OWI, PAC, or your refusal to take a requested test is found unreasonable, your operating privileges will be revoked.  The length of that revocation will range from six to 36 months depending on the seriousness of your case and the number of offense.  To get a better idea of the potential revocation you might be facing, you can look at this chart ( from our Department of Transportation.  Any administrative suspension will be applied to the revocation a person faces for an OWI or PAC after their conviction; so, you will get credit for the time you spent administratively suspended.

Just because you get suspended or revoked does not mean that you won’t be able to drive at all.  You will be eligible for an occupational license that will allow you to drive for certain limited purposes, such as work, school, and homemaker duties.  If this is your first offense, you will be immediately eligible for an occupational license.  If you have been revoked for a second or subsequent OWI or PAC, you will have to wait 45 days after you are convicted to get an occupational license.  Everyone is eligible for an occupational license right away during an administrative suspension, regardless of the number of offense.  You are able to check your eligibility for an occupational license and your license status in general at the Department of Transportation’s web site (

If you are convicted of a first offense OWI/PAC with an alcohol content of more than 0.149 g/210L, any subsequent OWI/PAC offense, or any refusal, you will also be subject to an order for an Ignition Interlock Device (IID).  This is a device that will have to be installed in any vehicle that you own or drive.  You will have to blow into it intermittently to prove your sobriety in order to drive.  A restriction showing that an IID is required will be noted on your license.  The length of an ignition interlock order can range from 12 to 36 months.

If you are an out-of-state driver, the rules for suspensions, revocations, and IID requirements all still apply to you, but only as it relates to your driving in Wisconsin.  If you are convicted in Wisconsin, our Department of Transportation will notify authorities in your home state and you will likely face penalties there appropriate for the level of offense.  The good news is that since our firm has connections with impaired driving defense attorneys in all 50 states, we can help you to navigate the likely ramifications in your state.  You can also learn more about impaired driving laws in other states and find attorneys that specialize in this area of law from other states at

Understanding the Penalties For OWI and Other Impaired Driving Charges

The penalties for an OWI/PAC first conviction includes a monetary forfeiture, driver’s license revocation, mandatory alcohol assessment and treatment, as well as Ignition Interlock Device orders in cases where the court finds an alcohol content of more than 0.149 g/210L.  Penalties for a second or subsequent OWI/PAC conviction include some amount of confinement (jail or even prison for high level offenses), a fine, driver’s license revocation, Ignition Interlock Device order, and an alcohol assessment and treatment.  Our Wisconsin Department of Transportation has a helpful chart ( outlining the penalties associated with impaired driving charges.