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Facing OWI 10th+ charges in Wisconsin? Contact Van Severen Law Office at (414) 270-0202 to schedule a consultation.
Operating while intoxicated penalties in Wisconsin escalate until you hit a 10th offense OWI. Once things get to that point, the maximum penalty remains the same: a 10th offense is a Class E felony, a 15th offense is a Class E felony, and even a 20th offense is a Class E felony. The maximum penalty no longer changes. But that doesn’t mean future charges shouldn’t be taken seriously. Fifteen years prison is a long time.
If you’re reading this page, it’s safe to say that you’re very familiar with drunk driving laws, drugged driving laws, and the penalties associated with them. You’re familiar with the driver license revocations and the ignition interlock devices that come after previous convictions. But you’re also familiar with the motion issues: Why did the cop stop you? Was there probable cause to arrest you? And your rights, like trial.
At Van Severen Law Office, we believe that individuals accused of serious crimes deserve aggressive, effective criminal defense. We’ve won motion issues on behalf of clients facing OWI charges. We’ve won trials. And we’ve negotiated reasonable plea offers for clients facing serious charges. Perhaps most importantly, we understand the uphill battle you’re facing, and we’re prepared to help clients in your position. Give us a call and let’s talk about your situation, things we can do to help, and whether you’re a good match for representation by our firm. You can reach us 24/7 at (414) 270-0202.
What Wis. Stat. § 346.63(1) prohibits
Section 346.63(1) of the Wisconsin Statutes provides the law prohibiting operating while intoxicated in Wisconsin. It applies to 1st offense OWIs, 10th offense OWIs, everything between, and everything after. The statute indicates:
(1) No person may drive or operate a motor vehicle while:
(a) Under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving; or
(am) The person has a detectable amount of a restricted controlled substance in his or her blood.
(b) The person has a prohibited alcohol concentration.
(c) A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of any combination of par. (a), (am), or (b) for acts arising out of the same incident or occurrence. If the person is charged with violating any combination of par. (a), (am), or (b), the offenses shall be joined. If the person is found guilty of any combination of par. (a), (am), or (b) for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under ss. 343.30 (1q) and 343.305. Paragraphs (a), (am), and (b) each require proof of a fact for conviction which the others do not require.
Let’s break subsections (a), (am), (b), and (c) down further:
Paragraph (a): operating while under the influence
This is the impairment offense, and it covers more than alcohol. A driver violates paragraph (a) by operating while under the influence of an intoxicant, a controlled substance, a controlled substance analog, or any combination of those. It also reaches any other drug, and a combination of alcohol and another drug, when the substance leaves the driver incapable of safely driving. What the State has to prove is impairment: that the substance affected the driver’s ability to operate the vehicle safely. It does not have to prove any particular alcohol concentration.
Paragraph (am): a detectable amount of a restricted controlled substance
Paragraph (am) works differently. It applies when a driver has any detectable amount of a restricted controlled substance in the blood, and it does not require proof that the drug affected driving at all. The presence of the substance is the violation. Because impairment is not part of what the State must show, a driver can violate paragraph (am) without displaying any sign of being affected.
Paragraph (b): a prohibited alcohol concentration
Paragraph (b) is the number offense. It is violated when a chemical test shows a prohibited alcohol concentration, with no separate proof that alcohol affected the driver. For most drivers that concentration is 0.08 or more. For a driver with three or more prior countable offenses, which describes everyone facing a tenth, the limit drops to more than 0.02. A tenth offender operates under a much lower legal limit than a first-time driver.
Paragraph (c): charging more than one at once
Paragraph (c) lets a prosecutor bring more than one of these from a single incident. In an alcohol case, that usually means operating under the influence under paragraph (a) charged alongside operating with a prohibited alcohol concentration under paragraph (b). The counts are joined. If the driver is found guilty of more than one, the statute directs a single conviction for sentencing and for counting the offense, so two guilty verdicts from one arrest still produce one OWI. Because paragraphs (a), (am), and (b) each require proof of a fact the others do not, they can be charged together without one merely restating another.
The penalty for 10th offense operating while intoxicated in Wisconsin: Wis. Stat. § 346.65(2)(am)7
The previous described what OWI in Wisconsin is. The penalties are found in Wis. Stat. § 346.65. Section 346.65(2)(am)7 provides the punishment for individuals convicted of their 10th or a subsequent OWI:
- Except as provided in par. (f), is guilty of a Class E felony if the number of convictions under ss. 940.09 (1) and 940.25 in the person’s lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1), equals 10 or more except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one. The court shall impose a bifurcated sentence under s. 973.01 and the confinement portion of the bifurcated sentence imposed on the person shall be not less than 4 years.
The language that indicates “equals 10 or more” is where the law indicates that 10th offenses involve the same maximum penalties as all subsequent offenses. Those penalties are as follows:
- OWI 10+ offenses are Class E felonies. A Class E felony has a maximum penalty of 15 years prison, $50,000.00 in fines, or both.
- The mandatory minimum sentence for OWI 10+ offenses is 4 years initial confinement. Due to the bifurcated nature of Wisconsin felony penalties, a term of extended supervision must accompany this.
- Driver license revocation of 2-3 years plus confinement. More importantly, a lifetime Department of Transportation driver license revocation applies to fourth and subsequent OWIs.
- Ignition interlock device installation of 1-3 years plus confinement.
Jury instructions and the elements of a tenth offense OWI
Jury instructions are the plain-language statements a judge reads to a jury so it understands what the State must prove. They define the offense whether or not a case reaches a jury trial. Wisconsin’s OWI jury instructions have several versions, including separate instructions for alcohol, controlled substances, and prohibited alcohol concentration. They all begin with the same first element:
- The defendant drove or operated a motor vehicle on a highway.
- “Drive” means the exercise of physical control over the speed and direction of a motor vehicle while it is in motion.
- “Operate” means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.
Driving requires the State to show the vehicle was moving under the defendant’s control. Operating requires less: physical manipulation or activation of the vehicle’s controls can satisfy the definition even when the vehicle never moves. This is why Wisconsin uses the term OWI rather than DWI.
The second element depends on the type of OWI charge:
- OWI (alcohol): Under Wis JI-Criminal 2663, the State must prove the defendant was under the influence of an intoxicant at the time of driving or operating.
- “Under the influence” means the person’s ability to operate a vehicle was impaired because of consumption of an alcoholic beverage.
- OWI (controlled substance): Under Wis JI-Criminal 2664, the State must prove the defendant was under the influence of a controlled substance at the time the defendant drove or operated a motor vehicle.
- Prohibited alcohol concentration: Under Wis JI-Criminal 2660, the State must prove the defendant had a prohibited alcohol concentration at the time of driving or operating. For drivers facing a 10th or subsequent OWI charge, that means 0.02 grams or more of alcohol in 210 liters of breath or 100 milliliters of blood.
Criminal charges that sometimes accompany an OWI 10th
OWI charges in Wisconsin usually don’t arrive by themselves. Here are a few offenses that regularly accompany an OWI 10th in Wisconsin:
Operating after revocation
A fourth offense OWI in Wisconsin triggers automatic, permanent, driver license revocation by the DOT. If the defendant did not have a valid driver license at the time of his arrest, and his previous driver license we revoked due to an OWI, a criminal operating while revoked charge will accompany the OWI. An OAR charge has a maximum penalty of 1 year in the county jail, a fine of up to $2,500.00, or both.
Prohibited alcohol concentration
An alcohol-based OWI almost always includes a second count: operating with a prohibited alcohol concentration. It is proven with the breath or blood test alone, without any showing that alcohol affected your driving. In cases where a PAC charge accompanies an OWI charge, the defendant can only be convicted of one of the offenses.
Talk to Van Severen Law Office about your case
A tenth or subsequent OWI carries felony penalties and a mandatory prison term, and we believe anyone facing a charge this serious deserves representation from an experienced OWI defense attorney. Van Severen Law Office handles serious felony OWI cases throughout the Milwaukee area. Call (414) 270-0202 for a free consultation. We answer 24/7.
Frequently asked questions about tenth offense OWI in Wisconsin
What is the most serious OWI penalty a defendant can face in Wisconsin?
10th and subsequent OWI offenses are subject to the most serious OWI penalties in the state. These charges qualify as Class E felonies, meaning the maximum penalty is 15 years prison. These penalties apply to 10th offenses and all OWI offenses beyond that.
What are the penalties for a tenth or subsequent offense OWI in Wisconsin?
A tenth or subsequent OWI is a Class E felony, which carries a maximum penalty of 15 years prison. The mandatory minimum period of incarceration is 4 years initial confinement, and it must be followed by a period of extended supervision. The defendant faces a fine of up to $50,000.00. The driver faces a driver license revocation of 2-3 years (plus the term of incarceration) from the court, and a lifetime revocation from the Department of Transportation. An ignition interlock device must be installed for 1-3 years plus the term of incarceration.
Will a driver facing a tenth or subsequent offense OWI in Wisconsin lose his license forever?
Kind of. Under Wis. Stat. § 343.31(1m)(b), the Department of Transportation permanently revokes the operating privilege of a driver whose countable offenses reach four or more when the most recent offense falls within 15 years of the previous one, which is almost always the case by a tenth offense. During that revocation there’s no occupational license. It isn’t necessarily forever, though. After 10 years of the revocation have passed, a driver may apply for reinstatement under Wis. Stat. § 343.38. Our blog covers this in more depth in do I lose my license forever.
Do offenses after a tenth OWI carry the same penalty?
Yes. Wisconsin’s OWI penalty ladder tops out at ten. Once your countable offenses reach that number, the offense is a Class E felony, and an eleventh, twelfth, or later offense is charged and sentenced at that same level. There is no separate, higher classification for offenses beyond the tenth. The mandatory minimum and the bifurcated prison sentence apply the same way each time.
