by Attorney David E. Saperstein
As the ball dropped and champaign glasses clinked this New Year 2017, Wisconsin impaired driving penalties tightened up again. As of January 1, 2017 a number of significant changes to penalties for repeat OWI offenses, enacted by 2015 Wisconsin Act 371, went into effect. The most notable changes, as outlined in this article, affect the penalties for persons convicted of fourth and subsequent offenses charging operating while intoxicated (OWI), operating with a prohibited alcohol concentration (PAC) and operating with detectible amount of a restricted controlled substance (RCS).
Prior to this recent change in Wisconsin law, only a fourth offense OWI/PAC/RCS offense charged within five years of the previous impaired driving conviction (or refusal adjudication) could be charged as a felony (Class H), punishable by up to six years imprisonment. Any other fourth offense would have been charged as a misdemeanor, with maximum penalties not exceeding one year in jail. This reference back to the previous conviction for the purpose of enhancing the penalties for the fourth offense was known as the “lookback” provision. Wisconsin Act 371 removed that lookback provision on fourth offenses, so that any fourth offense impaired driving violation committed on or after January 1st, 2017 will be charged as a Class H felony.
That change created, in effect, a domino reaction, so that all offenses subsequent to the fourth offense also saw increased penalties as of January 1, 2017. Fifth and sixth offenses, formerly charged as Class H felonies with maximums of six years imprisonment, are now charged as Class G felonies with maximums of 10 years imprisonment. Mandatory minimum incarceration for felony fourth, fifth and sixth offenses remains at six months.
Seventh, eighth and ninth offenses, formerly charged as Class G felonies with a maximum incarceration period of ten years in a Wisconsin State Prison, are now charged as Class F felonies with a maximum of twelve and a half years imprisonment. Mandatory minimum initial confinement for these Class F felonies remains at 3 years. Finally, tenth offenses have been elevated from Class F felonies to Class E felonies, with a maximum of fifteen years imprisonment and a four-year mandatory minimum period of initial confinement.
Although Wisconsin is still the only state in the country where a first offense impaired driving violation is not charged as a crime, the trend line clearly demonstrates increasingly tougher penalties with each update of our law. These latest changes are surely not the last point on that line.
Proposals to make a first offense a crime in Wisconsin are on the legislature’s radar every session. Mandatory ignition interlock orders for all OWI convictions and increased mandatory minimum incarceration for fifth and sixth offenses are among the proposals currently circulating. Stay tuned.