When is an OWI a Felony in Wisconsin?

When facing a drunk driving charge, there are many essential facts you should be aware of. Many states term drunk driving a DUI (Driving under the influence), while in Wisconsin, they are referred to as OWI. OWI or (Operating while intoxicated) is a charge with serious consequences, and you will want an experienced OWI defense attorney on your side if you are accused of this charge.    

OWI’s can be surprisingly complex. They will often include lab results, expert testimony, squad video, body camera video, roadside testing, and more, all of which are potential areas to challenge in your defense.    

When is an OWI Not a Crime in Wisconsin?

First offense OWI is a non-criminal municipal citation with penalties of:  

• $150 to $300 in fines  
• A driver’s license revocation for 6 to 9 months  
• $250 Alcohol and other drug assessment  
• Ignition interlock device if your blood alcohol was above .15%  

Although a first offense is non-criminal, it can still have severe consequences on your life, including losing your license, costs that can reach thousands of dollars, and will always remain on your record.    

Another consideration is that other States view first offenses as criminal offenses, so you may face additional issues if you live out of state or get a second offense in another state.    

Illinois, for example, treats OWI firsts very differently than Wisconsin. You can find more information on Illinois Drunk Driving offenses here: Illinois DUI Changes for 2023.  

When Is an OWI A Misdemeanor in Wisconsin?  

Second-offense OWI is a criminal misdemeanor  

• $350 to $1,100 in fines  
• $435 driver improvement surcharge  
• $250 Alcohol and other drug assessment  
• Driver’s license revocation from 12 to 18 months  
• Ignition interlock device for 12 to 18 months  
• 5 days to 6 months in jail  

Third-offense OWI is still a misdemeanor; however, the penalties are increased.  

• $600 to $2000 in fines  
• $435 driver improvement surcharge  
• $250 alcohol and other drug assessment  
• Driver’s license revocation from 2 to 3 years  
• Ignition interlock device for 1 to 3 years  
• 45 days to 1 year in jail  

When is an OWI a Felony?  

Fourth offense OWI and up are felonies in Wisconsin  

• $600 to $10,000 in fines  
• $435 driver improvement surcharge  
• $250 alcohol and other drug assessment  
• Driver’s license revocation from 2 to 3 years  
• Ignition interlock for 1 to 3 years  
• 60 days to 6 years in jail  

The Penalties for OWI’s increase dramatically after your fourth offense, and you will likely be facing substantial jail or prison time if convicted.    

What is an OWI in Wisconsin?  

Operating while intoxicated is defined under Wisconsin statute 346.63. Reading the statutory language, however, can be dense and complicated. Hence, the most helpful thing to know when facing an OWI is what it actually takes to be convicted of an OWI in Wisconsin.    

To be convicted of an OWI in Wisconsin, the State has to prove two elements:  

1. The defendant (drove) (operated) a motor vehicle on a highway.  

2. The defendant was under the influence of an intoxicant at the time the defendant (drove) (operated) a motor vehicle.  

Now, this seems straightforward; however, the legal definitions of several words in these two elements often surprise individuals when they find themselves in court.  

Common Misconceptions with OWI’s in Wisconsin  

Operate  

One of the most common misconceptions faced with the OWI law is the definition of the word “operate”.    

Under Wisconsin Statute 346.63(3) operate means:  

• The physical manipulation or activation of any of the controls of a motor vehicle is necessary to put it into motion.    

So, under this definition, you can be found to be operating your vehicle even though you are not driving the vehicle. For example, turning the ignition on while sitting in a parking lot in a non-moving vehicle can be the physical manipulation of control necessary to put the motor vehicle in motion.    

Highway  

A highway is defined much more broadly under this statute than the common usage of the word “highway”.    

Under the OWI statute, a highway is defined as:  

• All public ways and thoroughfares.    

In effect, this means that a highway is any area open to vehicular traffic by the public. This can include public parking lots and public driveways as well.    

Motor Vehicle  

A motor vehicle is defined as:  

• A vehicle, including a combination of 2 or more vehicles or an articulated vehicle, which is self-propelled, except a vehicle operated exclusively on a rail. Without limitation, motor vehicles include a commercial motor vehicle or a vehicle that is propelled by electric power obtained from overhead trolly wires but not operated on rails. A snowmobile and an all-terrain vehicle shall only be considered vehicles for purposes made specifically applicable by statute.    

It is important to note that this definition is expansive. It covers cars, trucks, motorcycles, and other common vehicles you see on the road, but it will also cover less apparent vehicles, such as riding lawnmowers, scooters, and snowmobiles. To learn more about other vehicles under OWI Wisconsin read our article, Understanding OWI/DUI Laws in Wisconsin.  

What Are the DUI Alcohol Levels in Wisconsin?  

The limit for blood alcohol in Wisconsin:  

• .08% for your first through third offenses  
• .02% after you have been convicted of three OWIs.    

Can An OWI Be Expunged?  

After you have been sentenced, OWI’s are not available for expungement in Wisconsin. A judge may order the expungement of a charge at the time of sentencing. However, this is very rare when it comes to OWI charges. Expunged OWI’s will also remain on your record in terms of counting prior OWI as well so it will not remove the total number on your record.  

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