Operating While Intoxicated (OWI) charges in Wisconsin differ in severity based on how many prior OWI charges the defendant has. That is, an OWI-1st offense may be charged as misdemeanor, whereas an OWI-4th offense is charged as a felony.*
The question is, then: How do Wisconsin Courts count prior OWI convictions?
Counting OWI-1st, OWI-2nd, and OWI-3rd
OWI - 1st Offense
When a defendant receives their first OWI in Wisconsin, it will either be an ordinance violation or a criminal misdemeanor.* A defendant’s first OWI will always be counted as a first.
*depending on the blood-alcohol content (BAC) level, whether there was aggravated driving, and whether there was a minor in the vehicle.
Ordinance violation: a violation of a local city ordinance. *non-criminal, held in municipal court. Criminal misdemeanor: a violation of a local county law. *criminal, held in circuit court. BAC: if under 0.15 = ordinance violation. if 0.15 or greater = criminal misdemeanor. Aggravated driving: accident or injury occurred. Minor in vehicle: automatically criminal misdemeanor. and holds higher consequences.
OWI - 2nd Offense
When a defendant receives their second OWI in Wisconsin, it will be charged as a criminal misdemeanor.* This charge will either be counted as a first or as a second.
However, Wisconsin has a niche rule when counting prior OWI convictions. In order for an OWI-2nd Offense to be considered a “second” offense, the first offense must have been within the last ten years. If the first OWI was more than ten years ago, then this second OWI offense will be counted as an OWI-1st again. Here is an example:
SCENARIO 1: January 1, 2012: Defendant receives an OWI. *the defendant has no prior OWIs, so this is an OWI-1st. January 2, 2023: Defendant receives another OWI. *the defendant has no prior OWIs within the last ten years, so this is also an OWI-1st.
SCENARIO 2: January 1, 2012: Defendant receives an OWI. *the defendant has no prior OWIs, so this is an OWI-1st. January 2, 2020: Defendant receives another OWI. *the defendant has 1 prior OWI within the last ten years, so this is an OWI-2nd.
OWI - 3rd Offense
A defendant’s third OWI is always counted as a third, no matter how much time has passed since the first and second OWI convictions.
This can get confusing because even if a person had never been officially convicted of an OWI-2nd, they may still get an OWI-3rd charge against them. If a person receives an OWI-3rd, they either had already received an
OWI-1st and OWI-2nd, or
OWI-1st and [more-than ten-years-later] another OWI-1st. For example:
SCENARIO 1: January 1, 2012: Defendant receives an OWI. *the defendant has no prior OWIs, so this is an OWI-1st. January 2, 2023: Defendant receives another OWI. *the defendant has no prior OWIs within the last ten years, so this is also an OWI-1st. January 3, 2050: Defendant receives another OWI. *the defendant has two prior OWIs, so this is automatically an OWI-3rd.
SCENARIO 2: January 1, 2012: Defendant receives an OWI. *the defendant has no prior OWIs, so this is an OWI-1st. January 2, 2020: Defendant receives another OWI. *the defendant has 1 prior OWIs within the last ten years, so this is an OWI-2nd. January 3, 2050: Defendant receives another OWI. *the defendant has two prior OWIs, so this is automatically an OWI-3rd.
PLEASE NOTE:
OWIs from other states are still counted when determining which OWI offense to charge in Wisconsin.
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