(608) 308-9645Criminal Cases that depend on how you count
In Wisconsin all drunk driving charges after the first one are criminal charges handled in Circuit Court. First offense cases are not charged as crimes unless there is a minor in the car or there is an injury. Both criminal and civil drunk driving charges can have profound consequences. This page is about what counts and does not count as a prior conviction. It may surprise you.Which things are counted as prior offenses is listed, confusingly, in Sec. 343.307, Wisconsin Statutes. Penalties (and classification as non-criminal/misdemeanor/felony) is determined by the penalty provisions in Sec. 346.65, Wisconsin Statutes.
Further, the timing and sequence of arrests and convictions can matter.
Civil Cases – First Offense
First Offense OWI / DUI is not treated as a crime in Wisconsin unless there is a child in the vehicle or someone is injured. That does not mean it is treated lightly. First offense OWI / DUI in Wisconsin often results in more significant penalties than in other states that treat this as a crime. However, the procedures are a little different in non-criminal cases and many different courts can hear such cases. If you have never been arrested or cited or in court for an OWI / DUI / Drunk Driving you are treated as a first offender. Except if as an underage drinker you were convicted of an absolute sobriety violation in another state that will count as a prior conviction.
Any one incident more than ten years ago will not count, but more than one will count. That is if a driver had one prior in May of 1989 a charge in June of 1999 (or 2010) counted as first offense. However if the driver had the May 1989 and the June 1999 offenses (both treated as first offenses) and then another in 2010, the 2010 charge would not be a first offense or second offense but a criminal third offense for court purposes. Again, you can have two first offenses more than ten years apart but not three. The look-back period for a any offense after the second is January 1, 1989. The look-back period to determine if a second actual offense is charged as a second offense is ten years, date of offense to date of offense.
No offenses before January 1, 1989 are counted.
Out of State Charges Are Different – Usually in a bad way!
The following are counted as prior convictions in Wisconsin when they occurred in a different state – even if they would not count in the original state:
- Refusing to take a chemical test
- A deferred prosecution for OWI / DUI / Drunk Driving / Drugged Driving that did not result in a conviction
- Operating as an underage drinker you were convicted of an absolute sobriety violation (would not count if in Wisconsin)
- A conviction for OWI / DUI / Drunk Driving / Drugged Driving
Some offenses in or out of Wisconsin are not counted!
Some prior convictions are not counted if proper procedures were not followed. This is a complex determination and requires analysis of all relevant records by an experienced attorney. For instance in one of the cases handled by our office a case originally charged as a third offense was properly revised to be a first offense.
Examples of counting
Example 1 – 3rd offense following two first offenses
| Offense Date | Conviction Date | Counted as |
| May 1, 1990 | June 15, 1990 | First Offense – non criminal |
| June 1, 2000 | August 1, 2000 | First Offense – non criminal |
| July 15, 2011 (or August 15) | September 20, 2011 | Third Offense Criminal Misdemeanor |
Example 2 – Misdemeanor 4th offense, Felony Fifth Offense
| Offense Date | Conviction Date | Counted as |
| May 1, 1990 | June 15, 1990 | First Offense – non criminal |
| June 1, 1991 | August 1, 1991 | Second Offense Misdemeanor |
| July 15, 1994 | September 20, 1994 | Third Offense Misdemeanor |
| July 20, 2005 | November 20, 2005 | Fourth Offense Misdemeanor (Now would be felony – law has changed) |
| July 31, 2011 | November 20, 2011 | Fifth Offense – Felony |
Example 2, above, is what the legislature had in mind when it passed the law, sequential offenses and sequential penalties.
Example 3 – Felony 4th offense, Felony Fifth Offense
| Offense Date | Conviction Date | Counted as |
| May 1, 1990 | June 15, 1990 | First Offense – non criminal |
| June 1, 1991 | August 1, 1991 | Second Offense Misdemeanor |
| July 15, 2004 | September 20, 2004 | Third Offense Misdemeanor |
| July 20, 2005 | November 20, 2005 | Fourth Offense Felony – within 5 years of prior conviction |
| July 31, 2011 | November 20, 2011 | Fifth Offense Felony |
Example 3, above, is also what the legislature had in mind when it passed the law. Compare with other 4th offense examples below!
Example 4 – 1st offense before January 1, 1989
| Offense Date | Conviction Date | Counted as |
| May 1, 1988 | June 15, 1988 | First Offense – non criminal |
| June 1, 1991 | August 1, 1991 | Second Offense Misdemeanor |
| July 15, 2001 | September 20, 2001 | First Offense – non criminal |
| July 20, 2005 | November 20, 2005 | Third Offense Misdemeanor |
| July 31, 2011 | November 20, 2011 | Fourth Offense Misdemeanor |
Note, the 1988 offense was within 5 years of the 1991 offense making that offense a second offense. but by the time of the 2001 offense was not counted because before 1989 and thus the 2001 offense was a first offense because more than ten years after the 1991 offense. The law that said to not count offenses prior to 1989 was passed in the late 1990’s at the same time they started counting lifetime offenses. That happened because the DOT had up until that time been purging records after ten years. I do not believe you can find this provision in the statutes; it is nevertheless the law, you may need to go to the actual law that was passed by the legislature to find this.
Example 5 – Misdemeanor 4th offense, Felony Fifth Offense
| Offense Date | Conviction Date | Counted as |
| May 1, 1990 | June 15, 1990 | First Offense – non criminal |
| June 1, 2001 | August 1, 2001 | First Offense – non criminal |
| July 15, 2003 | September 20, 2003 | Third Offense Misdemeanor |
| July 20, 2010 | November 20, 2012 | Fourth Offense Misdemeanor (now would be Felony because the law has changed) |
| July 31, 2010 | November 20, 2012 | Fifth Offense – Felony |
Note, the fourth offense was not within 5 years of the previous conviction. Compare with Examples 3, above, and 6 and 7, below. Again, (Example 5) we have sequential offenses and sequential convictions.
Example 6 – Misdemeanor 4th offense, Felony Fifth Offense – Fourth offense occurred before Third offense
| Offense Date | Conviction Date | Counted as |
| May 1, 1990 | June 15, 1990 | First Offense – non criminal |
| June 1, 2001 | August 1, 2001 | First Offense – non criminal |
| July 15, 2010 | November 20, 2012 | Fourth Offense Misdemeanor (now would be Felony because law has changed) |
| July 20, 2010 | September 20, 2012 | Third Offense Misdemeanor |
| July 31, 2010 | November 20, 2012 | Fifth Offense – Felony |
Note, the fourth offense conviction was was within 5 years of the third offense but the offense was not within 5 years following the second offense conviction. That was the last prior conviction at the time of this offense. The fourth charge was counted as a third because at the date of conviction there were only two earlier convictions. The third charge was counted as a fourth because at the date of conviction there were three convictions counted. If the conviction date on the third and fourth offense had been in the same order as the offenses, the fourth would have been a felony. The law on this has changed and now all fourth offenses are felonies. See below for more.
Example 7 – Felony 4th offense, Felony Fifth Offense – Fourth offense occurred before Third offense
Offense Date Conviction Date Counted as May 1, 1990 June 15, 1990 First Offense – non criminal June 1, 2004 August 1, 2007 First Offense – non criminal July 15, 2010 November 20, 2012 Fourth Offense Felony July 20, 2010 September 20, 2012 Third Offense Misdemeanor July 31, 2010 November 20, 2012 Fifth Offense – Felony Note, this is the same as example 6 except for the date of the second offense and conviction. The fourth offense conviction (third charged) was within 5 years of the second offense and the offense was within 5 years following the second offense conviction. The fourth charge was counted as a third because at the date of conviction there were only two earlier convictions. The third charge was counted as a fourth because at the date of conviction there were three convictions counted.
Example 8 – Out-of-state deferral without conviction
| Offense Date | Conviction Date | Counted as |
| May 1, 2001 Illinois Drunk Driving |
June 15, 2002 No conviction – dismissal following supervision |
Not a DUI in Illinois |
| June 1, 2003 | August 1, 2003 | First Offense Wisconsin (or Illinois) |
| July 20, 2005 | November 20, 2005 | Third Offense Misdemeanor Wisconsin |
Note: State v. List, 691 NW 2d 366 – Wis: Court of Appeals 2004, 277 Wis.2d 836 (2004), 2004 WI App 230, 691 N.W.2d 366 decided saying that the Illinois deferral counts as a prior offense. The June 1 offense would have counted as a second offense in Wisconsin had List been the law.
Example 9 – Out-of-state absolute sobriety conviction that would not count as a prior if committed in Wisconsin
| Offense Date | Conviction Date | Counted as |
| May 1, 2001 Illinois Absolute Sobriety |
June 15, 2001 No DUI |
Not a DUI in Illinois or Wisconsin |
| June 1, 2007 | August 1, 2007 | First Offense Wisconsin (or Illinois) |
| July 20, 2011 | November 20, 2011 | Third Offense Misdemeanor Wisconsin |
Note: State v. Carter, 2010 WI 132 (Dec. 2, 2010) decided saying that the Illinois absolute sobriety suspension counts as a prior offense. This does not necessarily apply to all out-of-state absolute sobriety convictions. Read the case!
IID Requirement (Ignition Interlock Device) – one more wrinkle on counting
Repeat Offenses
An IID is required for all second or subsequent offenses, even if the offense would be counted as a first offense for other penalty purposes. Village of Grafton v. Seatz, 2014 WI App 23 (Jan. 29, 2014). But, see DMV OWI Penalty Chart.
This is true even if none of the offenses involved alcohol. (No one ever said that the laws had to make sense.)
More Serious First Offenses
If there is an alcohol level of .15 or higher (at the time of the offense). Note: The alcohol reading on the evidentiary breath test may be higher than the alcohol level was at the time of the offense! Also, these machines are not calibrated to measure at the .15 level. Talk to a drunk driving defense lawyer!
If there was an unlawful refusal to take an evidentiary test that is specified in the Wisconsin Implied Consent law.
Can last longer than the revocation even if ordered for the same length of time – usually will last longer!
If an 18-month revocation period and an 18-month IID requirement are both imposed, do they end at the same time? Usually not. The revocation period gives credit for any period of administrative suspension (up to six months). In addition, the revocation period runs out once the time is up. The IID requirement does not start running until the driver has a license (occupational or regular).
Applies to all cars owned or driven, whether or not an owned car can even run!
If the DMV has record of the driver owning a vehicle, even if it has been junked or is undrivable, the driver will be required by the DMV to install an IID in it unless the vehicle is exempted by the Court.
Warning – Use at your own risk.
This page is not intended to be legal advice or substitute for legal advice. It is intended to provide general information. Legal advice can only be given with a full understanding of the actual facts of a case, generally in a face-to-face consultation. Note that there are exceptions to many of the statements made on this page. No one should act or refrain from acting based on anything stated in this web page. My office does not give legal advice to non-clients over the phone or internet. Further, the law (and procedures) in drunk driving cases are changing rapidly. This page reflects procedures in place in Wisconsin on January 1, 2014. In this session of the legislature, the Assembly has passed bills that would change many things stated on this page; those changes have not been adopted by the Senate, yet.