Operating/Driving While Intoxicated

What to do and not do in a traffic stop

Don’t get out of the car. Put your hands on the steering wheel in plain view.
If followed by a police vehicle with flashing lights and/or siren, pull to the right lane but stop in the safe shoulder, if possible, where it is lighted.
If stopped by an unmarked car, politely ask to see and make a note of police identification or badge number.
Politely give your name and home address. Show driver’s license, registration and insurance.
Politely decline to give any other information, regardless of whether you have been advised of your right to remain silent.
Decline to have your car searched without a warrant. Police may look inside your car but only to see what may be in plain view, unless you give them a reason to fear for their safety.
Ask to call your lawyer. You should keep contact information for your lawyer in your wallet. If you don’t have a lawyer, ask for one to be appointed for you and if you can’t afford one, ask for a public defender.

Introduction

All of the information included below applies ONLY to driving within Wisconsin’s borders. Each state and country has its own laws, rules and terminology regarding driving while intoxicated or under the influence, and drivers should consult an attorney immediately if unsure of their rights and responsibilities in other states or countries.

A charge of operating or driving while intoxicated (sometimes called OWI, DUI or DWI) can happen to almost anyone with a driver’s license. Driving is legal and so is drinking; it is even legal to drink and drive, as long as you are not “impaired.”

However, a person can be found guilty of OWI even if the driver does not feel impaired, and even if the person is driving perfectly.

To convict, the prosecutor only needs to show that someone was driving with a blood alcohol content (BAC) of .08 or higher. Since most people do not carry a device with them to tell whether their BAC has reached .08, it can be difficult to tell when it is illegal for them to drive. For repeat offenders in Wisconsin, the threshold for legal impairment can be as little as .02.

Criminal penalties include loss of license, a requirement for alcohol evaluation and counseling, if recommended, and for second and subsequent offenses minimum mandatory jail sentences.

In addition, a person can be subject to severe civil consequences if they cause an injury or loss of life due to their driving while impaired.

OWI/DWI Frequently Asked Questions

Is alcohol the only substance that can lead to a charge of OWI?

No. It is also illegal to operate a motor vehicle under the influence of a controlled substance, under the influence of any other drug that renders the driver incapable of driving safely, or with any detectable amount of certain restricted controlled substances in his or her blood. This means that a person can be charged with OWI even if under the influence of a medication prescribed by his or her doctor.

What clues of impairment do police officers look for on the roads?

The National Highway Traffic Safety Administration (NHTSA) has published a booklet entitled “The Visual Detection of DWI Motorists,” which describes four general categories of behaviors that are used to detect motorists with a BAC of .08 or higher:

problems in maintaining proper lane position (weaving; wide turns)
speed and braking problems (too slow or fast; abrupt stops)
vigilance problems (stopped at a green light; wrong side of road)
judgment problems (taking a turn too fast; dangerous maneuvers)

The clues presented in these categories are assigned probabilities to help predict that a driver is impaired (has a BAC of .08 or higher). For example, if a driver is weaving over lane lines, the probability of impairment is greater than 50%. When a driver is weaving and exhibits any other clue, the probability of impairment jumps to at least 65%. Some clues, such as swerving, accelerating for no reason, and driving other than on the designated roadway, have single-clue probabilities of greater than 70%.

But I wasn’t even driving!

In Wisconsin, you do not need to be driving your car to be charged with OWI; you only need to be in “physical control” of your vehicle. This means that you can get an OWI citation if you decide that you shouldn’t be driving and you just climb into your car as a place to “sleep it off” or pull over to the side of the road to sleep.

What should I do if I am pulled over when I have been drinking?

Be polite. You must show your driver’s license when stopped driving a car. Other than that, you don’t have to answer any questions. You do not have to consent to any search of yourself or your car. If you do consent to a search, it can affect your rights later in court.

What should I do if a police officer asks me to take field sobriety tests?

If you are NOT legally intoxicated or impaired, then performing these tests may get you home in short order. But you are not obligated to perform any roadside tests. Most of us may not know what it feels like to have a BAC of .08. And taking field sobriety tests gives the officer an opportunity observe your behavior in order to build a case for OWI. The officer, who will be looking for signs of intoxication, is the sole judge of your performance. Therefore, in most cases a polite refusal to perform field sobriety tests may be the wisest course of action. Of course, if you really believe that you can pass any field tests without difficulty, then perform the tests.

The police did not read me my rights when they arrested me.

Despite what you might see on television, a police officer is not required to read you your Miranda rights unless you have already been arrested and the officer intends to ask you questions related to the offense of OWI. In many cases an officer does not read the Miranda rights until after you have submitted to chemical testing for alcohol concentration. Once the officer reads these rights to you, you should embrace these constitutional rights by declining to answer any questions, and by asking to speak with a lawyer.

What are the penalties for OWI?

The consequences of being convicted of OWI can vary depending on the circumstances and the jurisdiction. Wisconsin is the only state in the country where a first time OWI is not a criminal charge, so long as nobody is injured. But the penalties are still significant, including a fine and costs exceeding $700, a mandatory chemical dependency assessment, a loss of driving privileges for at least six months, and payment of reinstatement costs.

For a second OWI conviction in Wisconsin, in addition to the penalties described above, the convicted person will have a criminal record and go to jail for a minimum of five days. A person convicted of a second OWI will also be required to have an ignition interlock device installed on their vehicle for at least 6 months.

Can I get a limited license to drive to work?

With a first time OWI conviction you may be eligible for an occupational license to drive back and forth to work or during work if your employment requires driving. With a second or subsequent conviction there may be a waiting period of obtaining an occupational license, or you may not be eligible for an occupational license at all.

For more information in Wisconsin’s drunk driving laws, penalties, vehicle seizures and occupational licenses, click here and here.