New Page 1

Operating While Intoxicated:

What Happens?

Attorney Steve Olson

For additional information: link to Radosevich, Mozinski, Cashman & Olson LLP

What is the legal limit for alcohol in Wisconsin? In September, 2003, the limit was reduced to .08 from .10 BAC, due to federal pressure: if Wisconsin didn't lower its limit, federal highway funding would be reduced and ultimately ended. The .08 limit applies to the first three offenses a person has, however, the legal limit drops to .02 for a fourth or subsequent offense in a person's lifetime. Interestingly, statistics show the average blood alcohol of an arrested driver in Wisconsin is .17.

How much does it take to reach .08? It depends on your weight and sex. For example, according to DOT studies, the average 180 pound male can have four twelve ounce beers or four one oz. shots of 100 proof alcohol in an hour and still be just under .08. However, a 180 pound female drinking the same amount would register about .09. Remember one thing: once you approach the legal limit, the amount you can consume after that point drops to less than one additional drink per hour - anything more and you will go over the limit. Additionally, how impaired you are with a particular amount of alcohol will depend on a number of factors, including whether and what you have eaten, how experienced a drinker you are, etc.

An officer must have what is called reasonable suspicion to stop you. You must have done something out of the ordinary, even though it may not be illegal, for police to conduct a traffic stop. For example, if you've been weaving within your traffic lane, that's grounds for a traffic stop, even though it's not illegal. If the officer suspects you may be under the influence, he or she may require you to perform field sobriety tests and submit to a Preliminary Breath Test (PBT) at the scene.

If the officer decides to arrest you for Operating While Intoxicated (OWI), you will be asked to take a formal chemical test. In Manitowoc County, this will probably be a blood test performed at a hospital Emergency Room. In other counties, it may be an Intoximeter breath test performed at the police or sheriff's station. Wisconsin's implied consent law requires you to take the formal test the officer requests even though you may already have blown into the PBT: the PBT doesn't count as the formal test. If you refuse the formal chemical test, the drivers license revocation for refusing will be greater than the revocation for an OWI conviction. In most instances, even if you refuse, the courts have approved the officer forcing you to take a chemical test anyway. Officers will strap you to a gurney so a lab tech can withdraw your blood.

What penalties will you face? That depends on what offense it is for you. For a 1^st offense, you will receive a drivers license revocation of 6-9 months, a forfeiture of approximately $700-900, and must attend an alcohol abuse assessment at a cost of about $200 and follow-through on the results of that assessment. If you refused the formal chemical test, you will have your drivers license revoked for a year. On a second offense, you will be jailed between five days and six months, be fined $900-1200, and be revoked 12-18 months, along with the assessment. If you refused the chemical test, you will be revoked two years. A fifth offense has a strong possibility of prison rather than county jail. No matter what offense, if you kill someone as a result of drinking and driving, you will go to prison.

Will you be eligible for an occupational drivers license? It depends. If you have had two OWI convictions within any five year period, you must wait one year before you are eligible. This is the case even if this is your 3^rd OWI, and you had two OWI's in 1990 and 1993 (you have two within any five year period). You will also be ineligible for an occupational if you had a prior suspension or revocation within the preceding one year period from the date of your current conviction. Second and subsequent OWI's in a person's lifetime also carry separate, shorter occupational license waiting periods.

Don't: Even think about fleeing. Not only is it dangerous, the officer is probably trained in high-speed, pursuit driving. In our area this will likely have occurred at Road America where the officers have the opportunity to put their squads through the paces. It's also extremely unlikely you'll be able to outrun the officer's radio & other squads. Fleeing is also a felony with a lifetime firearms ban: forget about ever hunting again.

Don't: Refuse the chemical test. Police will likely forcibly draw blood even if you refuse. Your DL will be revoked longer for refusing the test than for an OWI conviction. If you should have a jury trial, the jury will be informed you refused. The jury will probably conclude you refused because you knew you were intoxicated.

Do: Cooperate. Be respectful. If a jury ever hears your case, they will likely consider any uncooperativeness, obscenities, etc., as evidence of intoxication.

Do: Take the alternate chemical test. The officer will read you a form which says you must take the chemical test the police agency requires. However, that form also tells you that once you have taken the first test, you can request a second, free test the agency has available. In Manitowoc County the first test will likely be blood and the second an Intoximeter test of your breath. The Intoximeter test will likely give a lower reading than the blood test and, if nothing else, at least be different. However, if you don't ask for the second test, you won't receive it.