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New Wisconsin OWI Bills - Will they solve the Problem?

OWI Laws

Wisconsin state legislators are currently deliberating on three new bills that would induce tougher penalties for those convicted of drunk driving offenses. If passed, these bills would increase OWI penalties in the following ways:

  • Any drunk driver who causes bodily harm would be sentenced to a minimum of six months in jail.
  • Any drunk driver who kills someone in an incident would be sentenced to a minimum of ten years in prison.
  • All third consecutive OWI offenses would be classified as felonies.

Do Increased Penalties Really Solve the Problem?

Every year, it seems, legislators are trying to "toughen up" on drunk driving, but the increased penalties proposed do little to actually address Wisconsin's drunk driving problem. I have not seen any meaningful data that suggests setting a mandatory minimum on OWI homicides and/or OWIs causing bodily harm actually decreases recidivism in OWI cases.   In fact, many OWI offenders are likely substance abusers rather than criminal thinkers, and incarcerating them for extended periods of time may actually lead to an increased risk of re-offense, since many studies show that low-risk individuals who are held with high-risk individuals have a tendency to pick up higher risk traits and/or criminal thinking where it may have been previously absent.

Serial OWI Offenders & IIDs

Serial OWI offenders are the outliers in the criminal justice system here in Wisconsin - the vast majority of first offenders do not have a second offense, and the vast majority of defendants who do receive a criminal OWI conviction (OWI 2nd) very rarely receive a 3rd offense. Additionally, the best tool we have to eliminate or decrease the risk of drunk driving is the installation of IIDs (interlock ignition devices) on vehicles owned or operated by convicted drunk drivers.  The current law in Wisconsin already requires IID installation on 2nd offenses and higher regardless of blood alcohol levels at the time of conviction, and requires IID installation on non-criminal first offense OWIs when the blood alcohol level is .15 or greater.

Failure to Account for Individual Circumstances

Mandatory minimums on the injury and death cases fail to take into account the individual circumstances of any particular case.  A few examples:  for OWI controlled substance crimes, a defendant could have a low but detectable level of THC in his or her system at the time of driving, and thus be subjected to a mandatory minimum upon conviction, when, in reality, the low THC level did not actually contribute to the cause of the accident/death. They also fail to account for the factors each Wisconsin judge is required to take into account at sentencing:

  • The character of the offender
  • The gravity of the offense
  • The need to protect the public

Obviously, even cases of injury size does not fit all---injuries can range from fairly minor (bruises and scrapes) to severe (paralysis, broken bones, brain injuries, etc).  Similarly, I'd assert there is a different level of culpability with each individual offender.  Was the offender at a .08 or a .24?  Did the offender attempt to flee the scene, or stay and cooperate with authorities?  These are relevant questions that judges, prosecutors, and defense attorneys should be asking about each case prior to a sentencing.

Who do these Bills Benefit?

The reality?  The people that will be benefited most by passing tougher drunk driving legislation in this state are criminal defense attorneys, since many individuals who would choose to forgo the expense of hiring counsel are more likely to do so when the matter is a felony offense and/or carries significant mandatory minimum penalties.  The public at large?  Probably not benefiting at all, at least not in terms of decreased recidivism or increased public safety.


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