In 2022, Wisconsin was named the “drunkest state” in the U.S. According to a 24/7 Wall St. report, 25.2% of adults in the state drink excessively, which is higher than the national rate of 19.8%. The previous year, Wisconsin dominated the top 50 drunkest counties list, claiming 41 spots. Milwaukee, the state's most populous county, is even known as the Brew City due to its long history of beer production and vibrant dive bar scene.
For many people in Wisconsin, drinking is an important part of their lives. However, the sobering truth is that drinking too much alcohol raises the risk of drunk driving accidents, which can hurt or kill people. In fact, the same 24/7 Wall St. report also ranked Wisconsin as the state with the sixth-highest number of fatal car accidents involving alcohol (35.6%).
With these records, it is important for everyone in the state who drives to know the different drunk driving laws and rules. This article informs people in the Badger State about the laws and resources that can help them know their rights if they get into an accident while drunk.
Wisconsin OWI Laws Overview
Wisconsin uses the term operating while intoxicated to describe the offense of driving impaired by alcohol or any restricted controlled substance. People sometimes use it the same way they use driving under the influence, but OWI is a more general term. The word driving in DUI may mean that a person has to be in charge of a moving vehicle in order to be charged with the crime. This depends on how each state defines the crime.
On the other hand, if someone is drunk and sitting in the driver's seat of a parked car, they can still be arrested for OWI if the engine is running. This is because the law says that someone is operating a vehicle if they have control over any part that makes it move. With the term OWI, the car does not need to be moving for the person to be charged with the offense.
An individual can be charged with OWI if they:
Have a blood alcohol concentration of at least 0.08%.
Are proven to be under the influence of a substance that affects their ability to drive safely.
Have a detectable amount of restricted controlled substance in their blood.
There are three types of tickets for those arrested for DUI. An A ticket means OWI charges; a B ticket is for exceeding the BAC limit; and an AM ticket is issued for having a controlled substance in their blood.
Field Sobriety Testing and Chemical Tests
If an officer approaches a driver's vehicle and suspects that they are intoxicated, the driver may be asked to participate in field sobriety testing, or FST, which includes one of the following:
Horizontal Gaze Nystagmus: This is done by looking for nystagmus, an uncontrollable eye movement that is common in people who are drunk (though eye jerking can be caused by other things as well). In this test, the officer looks at six indicators to determine drunkenness.
Walk and Turn: The officer will give the driver instructions and test how well they can listen, remember, and follow them before the actual “Walk and Turn” test. After that, the driver has to do the heel-toe test, which checks their balance and sees if they can follow the officer's specific signals and instructions.
One-Legged Stand: The driver will be asked to raise one foot while counting to 30 out loud. During this test, the officer will assess whether they are swaying, hopping, using their arms for balance, or unable to keep their foot off the ground.
The suspected driver may refuse the tests; however, FST refusal, when combined with other evidence, can potentially lead to an arrest for OWI and may be used against them if the case proceeds to trial.
Implied Consent in Wisconsin
If the officer suspects the driver is high on drugs or alcohol, they may take them to the police station or a hospital to be tested further. The driver will have to take a blood, urine, or breath test to find out their BAC.
In Wisconsin, drivers can choose whether or not to do FST. However, they are required to take a breath, blood, or urine test if a police officer believes they are impaired while driving. This is because of the implied consent rule stated in Wisconsin Statutes 343.305.
Implied consent gives law enforcement officers the right to administer chemical testing regardless of whether the suspected driver submitted to it. Refusal to take the chemical tests can result in license revocation for a year. It can also be used in court as proof of guilt.
Before the chemical tests, the officer is required to provide proper notice and inform the driver of the consequences of their refusal.
Wisconsin’s Not a Drop Law for Drivers Under 21
The state enforces the absolute sobriety rule, also known as the Not a Drop Law, for drivers under the age of 21. This means that underage individuals with any level of BAC in their system are prohibited from operating a vehicle. Underage OWI carries a penalty of a $200 fine, four driver’s license demerit points, and a three-month license suspension. The fine and suspension period can even increase if there’s a passenger under 16 years old in the car during the incident.
In addition to OWI, having alcohol in a vehicle, whether in an open or closed container, can result in a fine ranging from $20 to $400 and up to two years of license suspension.
Aggravated OWI in Wisconsin
A person may be pulled over and charged with aggravated OWI if:
They had a BAC of at least 0.15%.
They had a BAC of 0.08% and a passenger under 16 years old was in the same vehicle.
They had a BAC of 0.08% and caused a vehicular accident that resulted in someone else’s injuries or death.
They had multiple OWI in their records.
In terms of penalties, aggravated OWI is more severe than regular OWI. A first-time regular OWI offense carries a $300 fine and a license suspension of six to nine months. However, if a child is present in the vehicle at the time of the accident, the driver may face fines of up to $1,100, and their driver's license may be suspended for six months.
Wisconsin’s OWI Laws for Commercial Vehicle Drivers
In Wisconsin, commercial driver's license holders face stricter drunk driving laws. CDL holders cannot refuse field sobriety tests when pulled over by an officer, unlike regular license holders. They must also have a BAC of less than 0.0%. If their BAC is more than 0.04%, they could lose their job and CDL. The OWI laws for commercial vehicle drivers apply even if they are driving a personal vehicle when they are pulled over.
What Are the Penalties for a DUI in Wisconsin?
Below are the penalties for OWI offenses in Wisconsin:
Type of Conviction
Length of Confinement in Jail
Non-criminal municipal citation or civil offense
$150 to $300
6 to 9 months of suspension
$350 to $1,100
Up to 6 months
12 to 18 months of suspension
$600 to $2,000
45 days to 1 year
2 to 3 years of suspension
Class H felony
$600 to $10,000
60 days to 6 years
2 to 3 years of suspension
Fifth or sixth offense
Class G felony
$600 to $25,000
1 to 10 years
2 to 3 years of suspension
Seventh, eighth, or ninth offense
Class F felony
Up to $25,000
3 to 12.5 years
2 to 3 years of suspension
Tenth or subsequent offense
Class E felony
Up to $50,000
4 to 15 years
2 to 3 years of suspension
Penalties for OWI Involving Injuries and Death
Individuals who committed OWI and caused injuries or death face harsher penalties. If a person's first offense causes an injury to another person, it is a misdemeanor punishable by a $2,000 fine and up to a year in jail. If it is a second OWI offense that results in an injury, the person could face up to $10,000 in fines and up to six years in prison.
Additionally, an OWI charge involving “great bodily harm” to one or more people is a Class F felony, with a fine of up to $25,000 and a prison sentence of up to 12.5 years. Great bodily harm can be caused by potentially fatal injuries or any injury that leads to impairment of proper organ function, significant permanent disfigurement, or permanent or prolonged disability.
A driver who causes the death of another person due to impaired driving may be charged with vehicular manslaughter or vehicular homicide. It is a Class D felony with harsher penalties, including up to 25 years in prison and a $100,000 fine.
OWI Penalties for CDL holders
Below are the possible penalties for CDL holders charged with OWI:
BAC greater than 0.0%: $10 forfeiture, 24-hour out-of-service, and three demerit points
First-offense OWI: One-year CDL suspension
First-offense OWI if transporting hazardous materials: Three-year CDL suspension
Second-offense OWI: Permanent disqualification of CDL
<h2>Wisconsin’s Dram Shop Law
According to Wisconsin Statutes 125.035, licensed alcohol sellers such as bars, restaurants, and liquor stores, as well as social hosts like people who plan private parties, are not liable if their customers or guests become intoxicated and cause an accident. For example, if a bartender or party host serves more alcohol to someone who is already drunk, they will not be charged. The only time they can be held liable is if:
They give alcohol to someone under 21 years old, even though they are aware that the drinker is underage.
They force or deceive someone into drinking alcohol.
For example, a group of friends goes to a bar for a night out. One of them, 21-year-old Ben, begins drinking heavily and becomes visibly inebriated. Despite his obvious intoxication, the bartender serves him more alcohol. Later that evening, Ben attempts to drive home and causes an accident, resulting in serious injuries to another driver. The victim can sue Ben; however, as per Wisconsin's dram shop law, they cannot sue the bar or the bartender for serving him drinks he could not handle.
How Much Can Someone Sue for a Drunk Driving Injury in Wisconsin?
OWI is a criminal offense, but accident victims cannot sue for a criminal case. Only the government has this authority.
Victims of drunk driving accidents can seek compensation in two ways. They can begin by filing a claim with their own or the at-fault driver's insurance company. Another option is to file a civil or personal injury lawsuit against the drunk driver.
Victims are entitled to compensation for economic damages, including medical expenses, vehicle repair costs, and lost wages, as well as non-economic damages, such as pain and suffering, disfigurement, and loss of enjoyment of life. They may also be awarded punitive damages if they can show that the at-fault driver acted maliciously or with willful disregard for the plaintiff's rights. Punitive damages are not intended to compensate the plaintiff for their losses but rather to deter the wrongdoer from repeating the same crime or behavior.
Punitive Damages Caps
Wisconsin implements a punitive damages cap in all personal injury cases. Plaintiffs may be awarded up to $200,000 or twice the amount of their other compensatory damages, whichever is higher. Several factors affect the amount of punitive damages an accident victim may receive. These include:
The severity of the at-fault driver’s action.
The at-fault driver’s degree of malice.
The potential and actual damage resulting from the at-fault driver’s action.
The at-fault driver’s financial capacity to pay.
The Statute of Limitations in Wisconsin
In Wisconsin, victims of drunk driving accidents have three years from the date of the accident to file a claim against the at-fault driver, whether for injuries or property damage. Families of wrongful death victims, on the other hand, have two years to seek compensation if their loved ones died as a result of another person's drunk driving.
The law, however, has exceptions in some cases, including:
If the victim is a minor when the accident happens, they can file the claim until they turn 20 years old.
If the victim is disabled or determined by the court to be incompetent, they can file a claim up to two years from the day their condition becomes better.
If the claim is against a state government employee, the victim must file a claim within 120 days from the date of the accident. They must file a notice of injury and claim with Wisconsin’s attorney general. If the claim is denied, they can still make a civil claim against the at-fault party within three years.
Resources for OWI Defendants and Folks Injured by an Impaired Driver in Wisconsin
Wisconsin’s Department of Transportation provides various online resources related to OWI. This page covers information about first offense OWI, license revocation, OWI assessment, driver safety plans, and the state’s point system. It also contains a link to the Wisconsin Department of Motor Vehicles’ email service for individuals who have queries.
Anyone who has been in an accident in Wisconsin can order a copy of their crash report online from WisDOT. Only the document number, the date, and the Wisconsin driver's license number are required. They can obtain crash reports for up to four years after the accident. Once payment is received, the copies can be downloaded or printed immediately.
MADD is a non-profit organization that aims to eliminate drunk and drugged driving, support the crime’s victims, and address underage drinking. Its advocates offer emotional support and resources to DUI/OWI victims, including one-on-one support, therapy referrals, guidance on victims’ rights, and even assistance in securing national and local financial help. It also provides other types of services, such as accompanying the victims or surviving family members in court and guiding them in creating a victim impact statement. MADD Wisconsin is available 24/7 through its Victim Help Line (877-MADD-HELP or 1-877-623-3435).
The Wisconsin Department of Justice provides compensation to crime victims and surviving family members for their financial losses. The program pays for legitimate expenses that they incur but are not eligible for reimbursement from either their insurance company or the at-fault party. Among those eligible for the program are Wisconsinites injured in car accidents involving other drivers who committed OWI. They may receive up to $40,000 and up to four years of reimbursement for out-of-pocket expenses that neither their nor the at-fault party's insurance plan covers. Qualified applicants can submit an application online or by mail.
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