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Will lawmakers find support to make first drunken driving offenses criminal?

ddDespite plenty of compelling arguments for making first-time drunken driving offenses a crime, Wisconsin won’t be moving in that direction anytime soon, predicts defense attorney Andrew Mishlove.

“The financial and bureaucratic impact is so daunting it has never been given serious consideration in my 35 years of doing this,” said Mishlove, whose office is in Glendale. “It is periodically proposed and never gets very far.”

Rather than trying to impose criminal penalties on those nabbed the first time for drunken driving, lawmakers this year have introduced bills specifically targeting repeat offenders. Deterrence, they hope, will come from higher fines, mandatory jail sentences and similar measures.

“We at least have to do everything we can to keep them from getting behind the wheel while drunk,” said, state Rep. Jim Ott, R-Mequon, a lawmaker who frequently sponsors legislation meant to fight drunken driving.

Doing what they can

About a dozen drunken driving-related bills have been introduced this year, including bills that would require the state Department of Transportation to revoke the licenses of those who have been caught driving drunk five times or more.

Among the proposals is a package of OWI bills that were introduced in October by Ott and Sen. Alberta Darling, R-River Hills. In general, the two lawmakers have proposed increasing penalties and creating mandatory minimum sentences for some drunken driving offenses.

“There’s too much drunk driving Wisconsin,” Ott said. “There are too many injured, too many killed and too many outrageous things happening. Some people are arrested for the 11th or 12th time driving drunk — wrong-way drivers. That’s the reason.

“In comparison to other states, Wisconsin is more lenient,” Ott added, “and one of the ways to discourage drunk driving is to make the penalties higher.”

Lawyering up

Some question, though, whether heightened penalties are ever enough, on their own at least, to prevent someone from getting behind the wheel after having had too much to drink. Skeptics say the real beneficiaries of deterrence attempts are likely to be lawyers.

For defense attorneys in particular, higher penalties generally mean more business.

“Not one study of which I am aware has ever shown that criminal sanctions decrease the incidents,” said attorney Chris Van Wagner. “Not one.”

Mishlove said that when the stakes are made higher for clients, lawyers tend to respond by litigating even more.

“Even a first offense can destroy a career,” he said. “We have lots of good citizens who have been good for decades who wind up having their careers and families destroyed.”

Van Wagner, a defense attorney in Madison, agreed, saying that mandatory minimum sentences and higher penalties often do little more than stiffen a client’s resolve to fight.

“Basically it doubles the amount of lawyers that get hired because people don’t want to have a record,” he said.

At the same time, both Mishlove and Van Wagner are quick to concede that state lawmakers did manage in 2010 to pass an effective deterrent when they required that ignition-interlock devices be installed in the vehicles of those who had been convicted of drunken driving two or more times. The devices prevent a vehicle from being started if the driver, after breathing into a sensor, is found to have an alcohol concentration above a certain level.

As effective as such technology can be, many say it does not get to the root of the problem.

STAFF PHOTO BY KEVIN HARNACKAttorney Andrew Mishlove says that when drunken driving stakes are made higher for clients, lawyers tend to respond by litigating more. (Staff Photo by Kevin Harnack)

Attorney Andrew Mishlove says that when drunken driving stakes are made higher for clients, lawyers tend to respond by litigating more. (Staff Photos by Kevin Harnack)

Elephant in the room

The most successful deterrents, Mishlove said, often couple the threat of tougher penalties with the opportunity to avoid harsh punishment by taking various remedial steps. First-time offenders, he said, should be given a chance to opt out of jail time or fines if they agree to go through treatment.

Most states, Mishlove said, provide that sort of choice. Illinois, for example, has a system that rarely if ever results in criminal convictions for first-time drunken driving offenses. Defendants are instead allowed to avoid jail time or fines by going into a court diversion program, and most choose that option.

But it’s hard to make the carrots effective, Mishlove said, unless there is a big stick hanging overhead.

“We have such a lenient first-offense program,” Mishlove said. “A system where there is no negotiation or plea bargaining … no options or incentive … is a failure. I think we need a dramatic increase in treatment options.”

Seeking safe passage

Ultimately, the biggest question for lawmakers is: What can they realistically hope to get passed? Compared with proposals to place tough penalties on first-time offenders, bills such as those put forward by Ott are more likely to make it out of committee and on to the floor of one of the state Legislature’s two chambers.

Ott, for instance, said he sees strong chances of adoption for a bill that would increase the penalties for third, fifth and sixth drunken-driving offenses. Likewise for his proposal to eliminate a rule stipulating that an instance of drunken driving, in order to be considered a subsequent offense, has to occur within a certain number of years — usually five to 10 — of a previous offense.

Tougher to pass, meanwhile, will be a bill that would require seven years of imprisonment for those who kill someone while driving drunk. As with so many of these proposals, lawmakers seem likely to balk at the predicted cost to the state of prosecuting those who, threatened with heightened penalties, might feel they have little choice but to fight in court.

Such considerations have been the chief undoing of past attempts at making first-time drunken driving offenses a crime, and could easily be so again this year.

Gov. Scott Walker, when serving as a state Assemblyman, joined former state Sen. Gary Drzewiecki in 1997 to introduce a bill that would have imposed criminal penalties on first-time offenders.

The proposal didn’t even make it to a committee vote.

A similar fate could be in store for a bill introduced this year by state Rep. Terese Berceau, D-Madison, in September. The bill would not only make a first instance of drunken driving a misdemeanor but would also offer an incentive to avoid repeat offenses. Drivers who were convicted but then went on to have no subsequent OWI-related offenses within five years would be able get the original charges reduced to a civil violation.

Berceau said the odds of the bill passing are bleak, although it’s not for a lack of support from at least some of the Republicans who control the state Legislature. Ott, for one, has signed on as a supporter, but said he too is not optimistic about the proposal’s chances.

The bill had not been scheduled for a committee vote as of late November.

“We at least have to do everything we can to keep them from getting behind the wheel while drunk.” — Jim Ott (Republican state representative from Mequon)

“We at least have to do everything we can to keep them from getting behind the wheel while drunk,” says Jim Ott, a Republican state representative from Mequon.

No will, no way

Berceau said her bill faces two hurdles. The first, she said, is opposition from the powerful Tavern League of Wisconsin, which gives campaign donations to lawmakers on both sides of the political aisle. The second is the tolerance that many lawmakers continue to show toward first-time drunken drivers.

“The perspective is the first time you (get caught driving drunk) it’s a mistake, and you shouldn’t be punished and that you’ve probably learned your lesson,” she said.

Mishlove said he thinks such proposals fail because criminalizing first-time offenses would necessitate an overhaul of Wisconsin’s court system. As a result of such a change, thousands of the sorts of cases now handled by municipal courts would be shifted to circuit courts, burdening prosecutors and judges with more work.

Ott, drawing on his 14 years of experience in the Assembly, has concluded that there simply is a lack of political will. The opposition has shown itself to be bipartisan and is strong enough to prevent any attempt at criminalizing first-time offenses from passing.

He noted that in the state Legislature’s 2009-2010 session, when Democrats controlled both houses, he worked with then-state Rep. Peggy Krusick, D-Milwaukee, on a series of OWI bills, including one that would have imposed criminal penalties on anyone found guilty of drunken driving for the first time. Support was lacking then and Ott said he has found no reason to believe it has increased since.

Rather than criminal penalties for all first-time offenders, lawmakers had to settle for a law making first-time drunken driving a misdemeanor only if a child is present in the vehicle. Ott said that he thought anything broader simply would not have gotten enough votes.

“This is a problem,” he said. “It cuts across political lines.”


About Erika Strebel, [email protected]

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.

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