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Drunk Math: When a Second OWI is a First, a Third OWI is a Third, and a Fourth OWI is Trouble.

When someone is charged with an OWI offense, one of the first obstacles is determining how many prior OWI-type offenses that individual has. While this may seem like task fit for a Sesame Street character, piecing together the complicated definitions of what constitutes a prior "offense" with the applicable time limits can often feel like advanced algebra. We at Nicholson & Gansner hope to offer some clarity on OWI "counting" to ensure that, if you are cited for operating a motor vehicle while intoxicated, your penalties are not increased for a prior offense that shouldn't be held against you.

intoxicated, your penalties are not increased for a prior offense that shouldn't be held against you.

The first step in this process is trying to determine what type of prior "offenses" can be used to increase the penalties for a subsequent OWI. Aside form the obvious--a prior OWI conviction--a number of other infractions can be counted against you. Specifically, prior convictions or license suspensions for refusing to take a required test for intoxication, or administrative license suspensions or revocations from a different state that were the result of allegations of drunk or drugged driving are all "countable" offenses under Wisconsin law. Thus, in certain circumstances, if your license was administratively suspended based on preliminary test results indicating you were operating a motor vehicle with a prohibited amount of alcohol in your system, even if you weren't ultimately convicted of the charge, the suspension could still count as a previous offense against you.

Once you determine the number of previous countable offenses, you must look at the period of time between those offenses. If you are being charged with a second offense, the previous offense must have occurred within the past 10 years. If the previous offense occurred more than 10 years before the date of the current offense, then the offense should be charged and prosecuted as an OWI--first offense, even though it is your second lifetime offense.

However, if you have two or more qualifying offenses, then the timing between the offenses does not matter. This is because, by state statute, for third and subsequent offenses, the number of priors is determined by counting the total number of lifetime prior offenses. The difference between the 10-year look-back period used for second offenses and the lifetime look-back period for third and subsequent offenses can lead to the bizarre results, such as an individual being convicted of two first offenses, and then a third offense, without ever being convicted of a second offense.

A final area where the time between previous offenses becomes important is in determining whether a fourth offense is charged as a felony or as a misdemeanor. By statute, if you have committed an offense within 5 years prior to the day of the current offense, then you can be charged with committing a felony fourth offense OWI, which is a class H felony. However, if you have not had a previous offense within 5 years of the new offense, then you will simply be charged with a misdemeanor fourth offense.

Ultimately, if you are charged with a second or subsequent OWI-offense, it is important to make sure that you are being prosecuted for the proper offense number. Given the complexity outlined above, make sure to contact an attorney who is experienced in handling OWI litigation if you find yourself charged with an OWI-related offense to make sure you are not facing penalties that are more severe than they should be.

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