Attorneys Matt Huppertz and Mark Powers are partners at the criminal defense law firm of Huppertz & Powers, S.C. in Waukesha.
Since beginning his career in 1982, Huppertz has argued before the Wisconsin Supreme Court five times and has lectured on the admissibility of DNA evidence in criminal cases.
Powers served as an Assistant District Attorney with the Waukesha County District Attorney's office as well as a municipal judge in North Prairie.
For more information, please visit www.waukeshacriminalattorneys.com.
It’s an interesting question. Should we “forgive and forget” when it comes to the manner in which the legal system handles drunk driving convictions? After a set amount of time, should a past conviction be allowed to expire instead of remaining on a person’s record?
Right now, Wisconsin has a “look-back factor” that goes back to 1989. If you’ve ever had a prior conviction going back to January 1, 1989, that conviction can and will be used against you in subsequent offenses. The trick is, on an OWI first or second offense, there’s a 10-year window.
For example, let’s say you committed your first OWI offense in January 2000. If you were charged with another first offense after January 2010, you would, in effect, be outside that 10-year window and would be charged with a first offense. So there is a bit of a grace period if you are outside of 10 years with your second offense.
When we work with anything other than a second offense, third or higher, the court looks at your record going back to January 1, 1989. For a few years, if you had .08 to .10 blood alcohol level OWI offense, and you didn’t have another OWI within 10 years, this offense would be wiped off your record. This is no longer the case since the new Wisconsin legislature changed the OWI laws in 2010.
When we use the term “grace period,” a number of things come into play. For example, if you get a second OWI outside that 10-year period, you are charged with another OWI first offense on your ticket. It used to be more expansive prior to the law change where if you didn’t get one in that 10-year window, that prior offense was wiped out altogether. Today, if you get two outside that 10-year period, the court will look all the way back lifetime until 1989 excepting OWI homicides, instead of letting that first offense be wiped off your record. This means if you received OWI convictions in 1990 and 2001 that while those would both be non-criminal first offenses, any third offense would be treated as a criminal third offense.
The question now is should we go back to letting that original offense expire after 10 years? In this day and age, there is a public policy concern regarding “forgive and forget” because society now expects that if you are charged with an OWI, that needs to be known by everybody because repeat OWI offenses and those who continue to drink and drive are threats to society. We’re talking about people dying or getting seriously injured on our roads and this line of thinking certainly makes sense.
Wisconsin is the only state in the nation that has a ticket for an OWI first offense so, in effect, you’re already getting a break in our state if you get an OWI first offense. Those who advocate for the “forgive and forget” approach are often people who are applying for jobs or are going through their careers where an OWI on their record is a definite hang-up.
Again, the sword cuts both ways because an OWI first offense in this state is just a ticket offense. It’s not a crime so the end result is public policy dictates that your record should be maintained. OWI offenses can’t be expunged so if you get one, it’s on your record, in effect, forever.
In a nutshell, it doesn’t appear that the courts will be allowing OWI offenses to “expire” anytime in the foreseeable future. People need to understand that by running the risks of drinking and driving, they are exposing themselves and many other people to far reaching negative consequences. Certainly, nobody wants to hurt or kill anybody as a result of drinking and driving. Nobody wants to go to jail.
Remember, when you get your first OWI offense, it’s not like getting a speeding ticket and you get your license points back after a year. This is something that anytime an employer or school wants your driving record, they are going to see that OWI and may think twice about offering you employment or schooling.
An OWI offense will stay with you for many, many years to come. Think about that the next time you get the urge to party hardy and get behind the wheel.