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Wisconsin's foremost authority on drunk driving law, Attorney Tracey Wood, appeals prior conviction to Wisconsin Court of Appeals on a third offense drunk driving conviction (a crime with a mandatory jail time). The Court of Appeals overturns the lower court conviction and orders the court to convict on a first offense drunk driving charge (not a crime).
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Prior Drunk Driving Convictions

Wisconsin Priors - DUI Convictions Refusals

Challenging invalid prior convictions is an essential component of proper defense of a third or subsequent offense drunk driving case. Nonetheless, it is a defense which is frequently overlooked. If you are charged with a third or greater offense drunk driving, it is important that you select an attorney who is familiar with the grounds for Constitutional challenges to past convictions.

Past convictions may be challenged in a new case without reopening the old one.

Because first offense cases are not considered criminal, the validity of past convictions normally is an issue only in third and greater offense cases, i.e., only when a challenged past conviction was itself criminal.

Under Wisconsin law, if you have past drunk driving convictions or refusal revocations, you're probably subject to higher penalties for a new drunk driving. But, even though you may fall into one of these categories, these penalties may not apply to you if the court didn't follow proper procedures in the past case.

The statutes state that a second drunk driving within ten years of a first drunk driving or refusal revocation, counted from dates of violation, is a second offense. Third offenses count all past drunk driving and refusal revocations in your lifetime, though DOT records generally don't go back past January 1, 1988, and convictions before that date actually are not counted. Convictions and refusal revocations from other states also count.

But, if your past conviction or convictions resulted from a guilty or no contest plea and that past conviction resulted in your going to jail, then the court which accepted that plea was required to follow specified procedures to assure that the plea was a knowing and voluntary waiver of your right to a jury trial, privilege against self incrimination and, if you didn't have a lawyer, your right to counsel. If those procedures were not followed -- and many judges have taken shortcuts in plea proceedings because they were trying to do them quickly -- then the plea is probably Constitutionally invalid. If so, it may not be counted as a prior offense in determining the grade of the present case, i.e., second, third, etc.

In Wisconsin, there is a "step-up" method for handling multiple OWI convictions for the same person; however, it does matter where you were previously convicted. (Click here to read Attorney Tracey Woods article regarding her Challenge of Prior Drunk Driving OWI Convictions in another state).

Wisconsin Drunk Driving Law prohibits and defines it as an illegal activity in Wisconsin for a driver over the age of 21, with no OWI (Operating While Intoxicated) convictions to operate a motor vehicle, with a Blood Alcohol Concentration (BAC) of 0.08 or greater, while under the influence of an intoxicant, or while under the influence of a controlled substance or any other drug. According to Wisconsin Drunk Driving Law, a driver is "under the influence" when his or her ability to operate a motor vehicle is impaired.

OWI number 1: On a first OWI conviction there may be a fine ranging between $150-$300, plus $355 surcharge with a suspension or revocation of your driving privileges ranging between 6-9 months; however, an occupational license can usually be availed immediately or your driving privileges may be retained while charges are pending provided a request for a hearing is filed within 10 days of the date of the violation and you prevail at that hearing.

As the number of OWI conviction increases, the penalties accordingly increase, having a fine ranging between $600 - $10,000, with $355 surcharge and a possible jail term ranging between 6 months to 6 years.

OWI-DUI-DWI charges can be much more severe if the person is found and proved guilty of causing injury, causing great bodily harm, or vehicular homicide. Those fines can reach up to $100,000 and a possible jail term of 25 years. Additionally, these more severe actions may also result in civil lawsuits. For drivers with three previous OWI convictions, the limit is lower: they are not allowed to operate a motor vehicle if their blood alcohol content is greater than 0.02.

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Attorney Tracey Wood | Attorney Chris Van Wagner
Drunk Driving Offenses | Drunk Driving Law | Test Refusal