OWI FAQ's

Frequently Asked Questions for those who have been charged with OWI:

Will I lose my license immediately?

No. People often believe that they will lose their license immediately after being arrested for an OWI offense. That simply isn't the case. If you are arrested for an OWI, and you provided a breath or blood, sample that indicated your alcohol level is over the legal limit, then the Department of Transportation attempt to administratively suspend your license 30 days from the date of your arrest. If this happens, you will be given a form entitled "Notice of Intent to Suspend" by one of the arresting officers. It is important that either you, or preferably your attorney, request an administrative hearing within 10 days of receiving this form, in order to attempt to prevent your license from being suspended. If you do not submit the request for a hearing within 10 days, then your license will automatically be suspended for 6 months, and in most cases the suspension will start 30 days after your arrest.

I did a really good job on the sobriety tests, why did they still arrest me?

In most instances, when a police officer suspects that you are operating a motor vehicle while intoxicated, the officer will ask you to perform a series of standardized field sobriety tests to determine if you are intoxicated, and to gather evidence to use against you. These tests include the horizontal gaze nystagmus test, the walk-and­-turn test, and the one-legged stand test. It is important to know that you do not need to participate in these tests, although an officer can consider a refusal to do so as evidence of your intoxication. Many people elect to do the field sobriety tests, and are surprised to be told by the officer that they "failed" despite believing they did a good job. While you are performing these tests, the officer is looking for very specific things that the normal individual may not think of or consider as a sign of intoxication. For example, you might believe that you did a great job on the walk-­and-turn test because you walked in a straight line and didn't stumble; but an office may still consider you to have failed because you started the test too early, didn't stand in the correct stance while listening to his or her instructions, and didn't turn around in the same manner as the officer had instructed. If you were arrested after doing field sobriety tests, it is crucial to obtain an attorney to help determine if the officer properly administered the tests, and if your performance actually indicated intoxication.

The police said I refused to do a breath or blood test. What does that mean?

Wisconsin's implied consent law requires you to provide a blood or breath sample (the law also authorizes officer's to request a urine sample-but this is not commonly done in Wisconsin) if an officer has probable cause to believe that you were operating a motor vehicle while intoxicated. Prior to requesting a sample, the officer must inform you of the consequences of refusing such a request by reading you a form entitled "Informing the Accused." If, after being read this information, you refuse to provide a sample, the officer will issue you an additional implied consent citation, which is often referred to as a refusal citation. A refusal citation carries the potential for a lengthy license revocation, a requirement that you install an ignition interlock device in your vehicle, and can make it very difficult to obtain an occupational license. If you receive a refusal citation, it is extremely important that you, or your attorney, file a request for a refusal hearing within 10 days of receiving the citation. This is the only way that you can challenge the citation and avoid the penalties associated with it. If you fail to file a request for a hearing within 10 days of receiving the citation, you will permanently lose your ability to avoid the refusal conviction and the associated penalties.

I got two tickets for the same thing. How is that possible?

If you were arrested for an OWI, you almost certainly received two citations. One for Operating While Intoxicated (OWI) and the other for Operating with a Prohibited Alcohol Content (PAC). These citations are very similar, but they involve two different laws and require the prosecution to prove related but different things. An OWI citation requires proof that you were driving while under the influence of an intoxicant (alcohol or another drug), and the intoxicant impaired your ability to safely operate the vehicle. The prosecution will often try to prove this type of charge by offering evidence of poor driving, poor performance on field sobriety tests, or general observations of intoxication (slurred speech, odor of alcohol, etc.). A PAC citation is a more technical charge. It requires proof that you provided a blood or breath sample that indicated your alcohol level was above the legal limit (.08%). A trial involving a PAC charge will generally surround the validity of the test results, or whether those results accurately reflect your alcohol concentration at the time of driving. However, while you will likely receive both citations, you will not be punished separately for each offense. In the event that you are convicted of both, you will only receive a punishment for one of the citations.

Am I going to go to jail?

Maybe. In Wisconsin, a first offense OWI is generally considered a non-criminal offense. This means that, barring some sort of special circumstance (such as an injury, or a minor in the vehicle), you cannot be sent to jail for your first offense. On the other hand, if you are facing a second OWI offense or greater, there will be a mandatory jail sentence if convicted.

If I'm found guilty, will I still be able to drive?

Usually, although there may be a waiting period before you can. Most people convicted of an OWI offense will be eligible to obtain an occupational license, which will permit them to drive up to 60 hours per week for authorized purposes (including work, school, and child-care). However, depending on the number of prior offenses and the type of offense, there will likely be a waiting period before you will be eligible to obtain an occupational license. These waiting periods often run between 45 and 120 days, but there are circumstances where they can be much longer.

Will I be able to keep my Commercial Driver's License (CDL)?

OWI convictions have very serious consequences for those who have a commercial driver's license endorsement. Regardless of whether you were operating a commercial motor vehicle at the time you are alleged to have been intoxicated or not, your CDL will still be disqualified for a year if you are convicted of a first offense OWI. If you are convicted of a second or subsequent offense, then you face the prospect of a lifetime CDL disqualification.

What about an HD, will I need to have one of those installed?

For the majority of those convicted of an OWI offense, the answer is yes, you will have to install an Ignition Interlock Device (IID) in your vehicle. An IID is mandatory for all second or subsequent offenses, as well as for first offenses if the alcohol level is above a .15%. However, there are many instances where an attorney may be able to avoid an IID on a first offense even with a test result above a .15% by establishing that the alcohol level was lower at the actual time of driving.

What about in my wife or husband's car?

If you are subject to an IID requirement, the general rule is that there must be one installed in each vehicle that is titled in your name, as well as any other vehicle that you drive. This can create big problems and expenses, as it may require you to install an IID in vehicles that are exclusively driven by your spouse or child, or install an IID in a vehicle that you don't even own (such as a vehicle you would drive for work). If you believe you will be in a situation where you would have to install an IID in multiple vehicles, make sure to discuss this with your attorney, as it is possible in certain circumstances to obtain exemptions on some vehicles.

Do I even need a lawyer for this?

Yes. Many people believe that if they provide a breath blood sample that is above the legal limit, there is no hope for their case. But an experienced OWI lawyer will be able to look on the entirety of the case to determine whether the officers involved in the case did not follow the appropriate procedures, whether the test or tests upon which the prosecution is relying was taken and analyzed properly, and whether there may be other defenses available in your case. Additionally, a knowledgeable OWI attorney can assist you in minimizing any consequences of a conviction, helping to reduce fines, jail sentences, and waiting periods for obtaining an occupational license.