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Changes could be coming to Wisconsin OWI laws

Nathan Dineen is a partner at Vanden Heuvel & Dineen SC, Germantown. He practices OWI defense throughout Eastern Wisconsin. He can be contacted at [email protected]

In Wisconsin’s war against drunk driving, Sen. Alberta Darling, R-River Hills, has been a consistent crusader.

She fought for tougher OWI penalties in 2009, but ran into stiff opposition. Darling was partially successful in her efforts, however.

Wisconsin Act 100, which took effect July 1, 2010, increased the penalty for a fourth OWI conviction to a felony when a prior conviction occurred within five years prior. It also made a drunken driving offense a misdemeanor if it occurred with a minor child (under the age of 16) in the vehicle and it required the installation of an ignition interlock device for first-time offenders with a blood-alcohol concentration of more than .15 and for all repeat offenders.

Now Darling is again pushing for harsher OWI penalties, aided by state Rep. Jim Ott, R-Mequon. This has resulted in a dramatic increase in media attention to police OWI enforcement statistics, police videos of impaired drivers attempting to pass field sobriety tests and Milwaukee County Sheriff David Clarke’s weekend police patrols to crack down on drunken drivers.

Darling and Ott have proposed a series of Senate and Assembly bills that will 1) impose felony status on a third OWI conviction, 2) make a first offense with a BAC of .15 and above a misdemeanor, 3) create pilot programs for sobriety checkpoints, and 4) develop better treatment programs for repeat offenders.

So what are the odds of these proposals being enacted into law?

First, the state of Wisconsin cannot financially afford these proposed changes. Recent history makes it clear that there will be a significant monetary impact from the proposed changes. For example, making a fourth offense OWI within five years a felony reportedly cost Wisconsin an estimated $85 million. This number will grow if a third OWI is made a felony in Wisconsin.

The costs of incarceration already are high but this proposed legislation will increase that figure as well as increase the burden on law enforcement, prosecutors and crime labs.

The new proposals also would bog down the judicial system by increasing aggressive litigation on all OWI cases, ratcheting up work for public defenders and district attorneys, and expanding the number of appeals from circuit courts to the Wisconsin Court of Appeals and the Wisconsin Supreme Court.

The proposed pilot programs also will face stiff opposition. Darling’s and Ott’s proposed sobriety checkpoints are currently prohibited in Wisconsin and are expected to face significant opposition from the standpoint of the invasion of a person’s right to privacy. Recent reports estimate a single sobriety checkpoint in one municipality will cost approximately $2,000, which could prove to be quite a financial burden on police and sheriff’s departments.

Is Wisconsin ready to spend the money to make the changes proposed? Does the legislature have the political “guts” to pass such legislation in this state? How will the legislature and governor balance significant economic considerations and pressure versus the right to drive safely on Wisconsin’s roads?

It will be interesting to follow the debate as it unfolds over the next few months.

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