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New proposal to criminalize first OWI would increase challenges in court

By: dmc-admin//June 29, 2009//

New proposal to criminalize first OWI would increase challenges in court

By: dmc-admin//June 29, 2009//

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Another push to make first time drunken driving in Wisconsin a criminal offense is underway.

Legislators are circulating a proposal which will make first-time offenders with a blood alcohol content (BAC) of .20 or higher guilty of a misdemeanor and subject to up to six months in jail, up to $1,100 in fines and suspension of their driver’s license for at least one year.

Some, including Rep. Tony Staskunas, D-West Allis, say the plan will have a minimal impact on local prosecutors and allow municipalities to continue to receive revenue from citations.

Currently, first-time offenders with a BAC of .08 or more are subject to a maximum $350 fine and could have their driver’s license suspended for six months or more.

“We’ve gotten quite a bit of pushback from cities and counties about making .08 a criminal offense,” Staskunas said. “But I think it’s important to make a statement that someone at two-and-a-half times the legal limit needs to be looked at in a criminal context.”

But several defense attorneys suggest that splitting the punishments will do little to deter offenders and simply increase the likelihood that first-time offenses will be challenged in court.

Madison attorney Alan G. Habermehl called any criminalization of first-time offenses “pointless” because in his experience defending OWI cases, people are more afraid of getting caught than being punished.

He suggested that creating a threshold would increase the chances that the average citizen will hire an attorney to avoid becoming a criminal.

“I’d never try a .20 on a first offense now because there is nothing to argue about,” said Habermehl of Kelly Habermehl & Bushaw SC. “But if it’s a matter of going to jail [on a .20] or not on a .19, there is much more incentive to go to trial.”

Criminal defense attorney Mark A. Ruppelt agreed and added that the proposal puts too much emphasis on a person’s BAC.

He said like it or not, people respond differently to alcohol in their system and he questioned whether a first time offender’s BAC can solely determine whether they are a criminal.

“Someone could be driving around at a .20 and be fine, but you have some high school kid at .08 and that might not be someone you want to meet on the road,” said Ruppelt, of Gatzke & Ruppelt SC, in New Berlin.

Staskunas conceded that there may be a few more trials, but also suggested many first time offenders around the .20 mark may just plea bargain with the district attorney’s office.

“I think perhaps it’s a wash,” Staskunas said.

Milwaukee County District Attorney John T. Chisholm said the new proposal would likely be less burdensome for prosecutors than if .08 were made a misdemeanor and most first-time offenders test well below the .20 mark.

Still, he said the change would not guarantee the maximum punishment for a first timer with a BAC more than double the legal limit.

“It would definitely increase the number of cases that are litigated,” Chisholm said. “[Right now] if you’ve got a solid .20 test, as a prosecutor, you are usually thinking I’m on high ground here.”

Staskunas said he hopes to introduce the bill into committee soon. He also said it could be introduced as an amendment to a more comprehensive drunken driving bill [AB 283] headed to the full Assembly which he co-authored.

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