What is the difference between OWI, DWI, DUI, BAC, and a Drunk Driving offense?

Sec. 346.63(1) prohibits any person from driving or operating a motor vehicle while under the influence of an intoxicant, while under the influence of a controlled substance, while under the influence of a controlled substance analog, or while under the influence of any combination of an intoxicant, a controlled substance, and a controlled substance analog.

The statute also prohibits any person from operating under the influence of any other drug to a degree that renders him or her incapable of safely driving and prohibits any person from operating under the combined influence of an intoxicant and any other drug to a degree that renders him or her incapable of safely driving. A conviction for any of these violations is referenced as OWI by the Division of Motor Vehicles. The other terms have no legal significance but are commonly understood as the same conduct.

The Division of Motor Vehicles uses the term BAC for operating a motor vehicle while having a prohibited alcohol concentration which could be .08, .04, or .02 under various situations. The Division of Motor Vehicles uses OWI for a person convicted of driving or operating a motor vehicle with a detectable amount of a restricted controlled substance in his/her blood even though being under the influence of a restricted controlled substance is not an element of the offense. The offense occurs if the person has a trace amount of a restricted controlled substance, which is usually cocaine or Delta-9-THC or a metabolite.

My vehicle was parked. I was walking up to the door of my house when the officer drove up. How could I be arrested for operating under the influence?

It is not illegal to operate a motor vehicle while under the influence if there is no operation on a highway and there is no injury to another caused by the operation. A highway is defined as “all premises held out to the public for use of their motor vehicles, all premises provided by employers to their employees for use of their motor vehicles, and all premises provided to tenants of rental housing in buildings of 4 or more units for use of their motor vehicles.”

The issues in your case include whether the prosecution has evidence that shows that prior to being on private property you operated the vehicle upon a highway, whether the officer had articulable reasonable suspicion of wrongdoing, and whether the officer, without a warrant, had the right to enter your residence or the curtilage to your residence.

Are the field sobriety tests accurate?

If performed in a controlled environment by a properly trained officer who administers the tests in the proper manner, and if the officer honestly relates the results, the best that can be said is that the results might be accurate. In fact, research conducted by the National Highway Traffic Safety Administration concluded that the horizontal gaze nystagmus test, if properly conducted and honestly scored, is accurate 77 percent of the time at determining whether an individual has a BAC of .10 or above.

For the same purpose, the walk and turn test is accurate 68 percent of the time and the one-leg stand test is accurate 65 percent of the time when administered in the prescribed standardized manner and when honestly scored. The accuracy rate decreases if the group being tested has BAC levels closer to the legal limit. The testing procedure is more accurate at determining if someone is over the legal limit if the BAC is quite high, such as .19.

What factors could lead to mistaken results on a field sobriety test?

The National Highway Traffic Safety Administration acknowledges that a person’s ability to perform field sobriety tests can be affected by many factors other than alcohol, including nerves, fear, fatigue, illness, traffic, wind, dust in one’s eyes, headlights, strobe lights, weather, physical problems, inner ear disorder, road or sidewalk conditions, age, weight, footwear and lack of coordination. In addition, mistaken results can arise when the law enforcement officer fails to follow the correct procedures. There is also a subjective component to the officer’s determination of whether a person failed a certain task.

If there is a court order for an Ignition Interlock Device must I install the device in any motorcycles titled to me?

The law requires that all vehicles, including motorcycles, must have an Ignition Interlock Device if the conviction mandates an Ignition Interlock Device period. Motorcycles can be exempted with a court order approving the exemption. If you have title to a motorcycle that has been exempted by court order, you are not required to install the Ignition Interlock Device in the motorcycle. There is a May 7, 2012 letter from the Chemical Test Section of the Division of Motor Vehicles documenting that at least some Ignition Interlock Device providers will not install the device in motorcycles for liability reasons. The letter suggests that “courts may wish to exempt motorcycles for the duration of the Interlock order.” The issue of whether a vehicle must be exempted from the Ignition Interlock Device order is different from the issue of whether you can legally operate any motorcycle during the Ignition Interlock Device period. The operation of a motorcycle is authorized for a motorist having a Class M license. Sec. 343.301 only restricts operating privileges for Class D vehicles during the Ignition Interlock Device period.

If the Court requires that I serve time at a Huber jail upon conviction for my criminal OWI, how will I get to and from work if I cannot apply for an occupational license until 45 days after the conviction date?

For a conviction for second offense OWI, the judge can delay the report date for up to 60 days. Sec. 973.15(8)(a)3. On the 45th day, you can obtain your occupational license so that if you are required to serve a sentence at a county Huber jail you might be able to drive to and from work, subject to the rules at the Huber jail. You might be required to provide proof of ownership of the vehicle, liability insurance on the vehicle, and a valid occupational license.

Many judges will not permit a delay of as long as 45 days for the commencement of a Huber jail sentence. The judge is prohibited from permitting any delay if you are convicted for a third or subsequent OWI offense. In this situation, all Huber jails will permit you to get a ride from a family member, co-worker, or friend provided there is proof that the driver has a valid license and has liability insurance for the vehicle being driven. Some counties have public transportation, taxis, or both.

If your case is in a certain county and if your attorney carefully plans, there is a possibility that the judge would permit you to build up jail credit by becoming a Huber bailee prior to sentencing. Sec. 969.02(3)(d). While serving time at the Huber jail you would be able to get to your employment if you have a valid regular or occupational license.

The procedure involves calculating the number of days you must serve to satisfy the sentence that we believe the judge will impose. At sentencing, you will then be given credit for the time already served and if the calculation is accurate you will not be required to serve any further time. From the date of sentencing, you will not be able to legally operate a motor vehicle until you obtain an occupational license. You will not be eligible to apply for 45 days but if your Huber jail sentence has been completed and you are home, you are more likely to be able to get a ride to work.

We recently had a client who lived in western Racine County. His employment was a few minutes from his residence. He was arrested in Waukesha County with the jail being 30 miles from work. A few months after the arrest we obtained a court order for him to be a Huber bailee. He was able to drive from the Huber facility to work. He was able to build up jail credit. He concluded his jail sentence on the same day as his sentencing.

The Court gave him credit for time served and determined that no further jail was required. He returned home. He was able to get a ride to work every day until he could obtain an occupational license. He wrote: “I am very pleased with the final result and I thank you as you did an excellent job handling my case.”


Dismissal of OWI (2nd Offense) – Milwaukee County Circuit Court

After the judge granted our motion to dismiss the case in February 2011, our client said: I don’t even know what to say. I am so happy. This is just a fantastic job. This is fantastic news. The whole thing is dismissed, gone, over, done. Wow, that is incredible! The judge obviously made the right call and the right decision. That is just fantastic. I cannot be happier. Thank you!


image of multiple logos - Attorney Michael Hayes, OWI attorney Milwaukee for wisconsin drunk driving
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