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.
Wisconsin’s drunken driving laws are once again the subject of potential change by way of new legislation being proposed by Republican lawmakers. Wisconsin has long had a reputation for being one of the weakest states in the country in deterring drunken driving and binge drinking. The proposed new law would make a third OWI offense a felony and no longer a misdemeanor.
When we consider an OWI third offense, we should note that Wisconsin has some quirky ways of counting things that can make the playing field uneven from one person to the next. For example, right now someone could conceivably get two OWI “first” offenses and get two traffic tickets if they are outside of a 10-year period.
Let’s say a person got a ticket in 1990, another in 2001 and then picked up the third ticket in 2011. Should this particular circumstance, where a person had such a wide range in between occurrences, be punishable to the same extent as the person who committed three offenses in five years or three within the same year?
What’s more, is the threat of a felony going to dissuade people since they already know an OWI third offense is still a crime? Do we have statistical analysis that says recidivism rates (the act of repeating the offense even though you’ve been punished for that behavior) are reduced by the level of punishment as opposed to are those rates being reduced because people are being taught why they shouldn’t drink and drive? It seems pretty clear that we need to teach people why they shouldn’t get behind the wheel of a car after having any amount of alcohol that could be impairing.
In the big picture from a defendant’s perspective, with stricter penalties come more reasons to put up a fight. There will also be additional costs to the state’s prisons and the criminal justice system at a time when the state’s budget is pretty tight. On top of this, from the financial standpoint, an OWI first offense can be prosecuted by a municipality or by the state as a crime.
From my experience, municipalities like to have their citations in their municipality because when the fines and costs are paid the money goes back to that municipality. That’s not the case with the state so you are possibly taking revenue from a local municipality and putting it into the state’s system.
The proposed legislation would make an OWI first offense, which currently warrants a traffic ticket, into a crime if the driver’s blood alcohol level is 0.15 or greater. From a practical standpoint, this raises concerns because it could bring the criminal justice system to a grinding halt. Anybody who’s even close to a 0.15, 0.16 or 0.17 will have an absolute incentive to try that case, to have a jury trial to argue that they were below 0.15.
There’s also the issue of uniformity. What language will be incorporated that would allow a prosecutor on their own discretion to say the driver may have been under 0.15 and, therefore, “We will just proceed on this as a ticket.”
I think it’s wrought with peril to associate a relatively arbitrary blood alcohol concentration to determine whether the offense is a crime or not. There’s also the perception, at least when we’re referring to an OWI first offense, that Wisconsin is very lenient. What needs to be pointed out is that when we look at other states like Illinois for instance, they have a supervision program where if you stay out of trouble for a set amount of time there’s no potential for jail time and, in effect, the offense is removed form your record.
So it’s kind of in the eye of the beholder. Who’s being tougher on OWI’s? Is it Illinois because they charge you with a crime but you end up having it wiped off your record if you comply with their conditions? Or is Wisconsin because you only get a ticket for the first offense and you can’t have it removed from your record?
One thing seems certain: Wisconsin’s drunken driving laws will be the focus of much discussion and debate for the foreseeable future.