OWI 5th and OWI 6th charges in Wisconsin are serious. Call Van Severen Law Office, S.C. for help: (414) 270-0202
Facing an OWI 5th or OWI 6th criminal charge in Wisconsin can be a scary situation. These offenses both carry the same penalty, which includes mandatory prison. Old law treated some fourth offense OWI cases as misdemeanors, so it’s possible that this fifth offense is the first felony criminal charge you’ve ever faced in your life. The escalating OWI penalties in Wisconsin group 5th and 6th offenses, 7th, 8th, and 9th offenses, and 10th/subsequent offenses together. Each group carries its own penalties.
Fifth and sixth offense operating while intoxicated charges in Wisconsin are both Class G felonies. Their penalties are as follows:
Initial confinement in prison of 1 year – 5 years. The “mandatory minimum” listed in section 346.65(2)(am)5 of the Wisconsin Statutes is 18 months initial confinement, but indicates the court can sentence the defendant to as little as 12 months. The period of initial confinement is followed by a period of up to 5 years extended supervision.
Driver license revocation of 2 -3 years plus confinement length. (If your prior OWI conviction was less than 15 years ago, the Department of Transportation will permanently revoke your license.)
Ignition interlock device (IID) installation for 1 – 3 years plus confinement length.
Fine of up to $25,000.00.
The OWI defense lawyers at Van Severen Law Office regularly represent drivers throughout Wisconsin facing drunk driving and drugged driving charges. We’re familiar with the administrative timeframes, constitutional issues, and criminal laws relevant to these charges. We’ve won motions for clients and obtained complete dismissals. And importantly, we’ve won for clients facing OWI charges at trial.
To schedule an initial consultation with any of our defense attorneys, contact us at (414) 270-0202.
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;(am) The person has a detectable amount of a restricted controlled substance in his or her blood; or (b) The person has a prohibited alcohol concentration.
Section 346.63(1) creates three theories of criminal liability. Subsection (1)(c) lets the State charge more than one theory from the same incident, but clarifies that the defendant can only be convicted once.
Subsection (1)(a) prohibits driving or operating while impaired. The State must prove that alcohol or a controlled substance actually affected your ability to safely drive.
Subsection (1)(am) prohibits driving or operating with a detectable amount of a restricted controlled substance in the blood. The State does not have to prove impairment or that you knew the substance was present. Detection is all that is needed.
Subsection (1)(b) prohibits driving or operating with a prohibited alcohol concentration. The State does not have to prove impairment. It only needs a chemical test result above the applicable threshold. For OWI 5th and 6th, that threshold is more than 0.02 grams of alcohol in 210 liters of breath or 100 milliliters of blood. The figure comes from Wis. Stat. § 340.01(46m), which sets four PAC limits: 0.08 for most drivers, and .02 for drivers with three or more prior OWI convictions.
Wisconsin Criminal Jury Instruction 2663 – operating a motor vehicle under the influence of an intoxicant
Jury instructions provide the elements that the government must prove beyond a reasonable doubt in order to sustain a conviction against the defendant. The specific instruction used for all criminal OWI cases is Wis JI-Criminal 2663. We’ll also discuss the instructions for a prohibited alcohol concentration charge, as it’s a companion charge usually charged alongside criminal OWI cases involving alcohol. The jury instructions for a criminal PAC charge (involving a .02 BAC) are found in Wis JI-Criminal 2660C.
The elements of a criminal OWI in Wisconsin are as follows:
Firstly, 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.
Secondly, the defendant was under the influence of an intoxicant at the time the defendant drove or operated the motor vehicle.
“Under the influence of an intoxicant” means the defendant’s ability to operate a vehicle was impaired because of consumption of an alcoholic beverage.
The elements of a criminal PAC charge in Wisconsin are as follows:
Firstly, the defendant drove or operated a motor vehicle on a highway.
Secondly, the defendant had a prohibited alcohol concentration at the time the defendant drove or operated the motor vehicle.
“Prohibited alcohol concentration” means more than 0.02 grams of alcohol in 210 liters of the person’s breath or more than 0.02 grams of alcohol in 100 milliliters of the person’s blood.
Why .02 and not .08 for the prohibited alcohol concentration? Again, section 340.01(46m) of the Wisconsin Statutes indicates that if the driver has 3 or more prior convictions, the PAC moves from a .08 to a .02.
The 18-month mandatory minimum
Section 346.65(2)(am)5 sets the mandatory minimum for OWI 5th and 6th at 18 months of initial confinement in prison:
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 one year and 6 months. The court may impose a term of confinement that is less than one year and 6 months if the court finds that the best interests of the community will be served and the public will not be harmed and if the court places its reasons on the record.
The penalties for OWI 5th and OWI 6th offenses in Wisconsin are needlessly confusing. Every other drunk driving charge in the state carries a mandatory minimum penalty. And while that’s also the case here, the statute goes on to clarify that the mandatory minimum penalty actually isn’t mandatory. Instead, the court can sentence the defendant to less than the mandatory minimum.
But how low can that sentence go? In State v. Shirikian, 2023 WI App 13, the Court of Appeals answered that question for us. In that case the trial court placed the defendant on probation and required her to serve 9 months jail as a condition of probation. The appellate court determined the sentence was illegal. It went on to hold that when the best interests of the community exception applies, the defendant must still serve a prison sentence. This means that the shortest term of initial confinement that applies in these cases is 12 months.
When a fourth offense OWI didn’t trigger lifetime license revocation
Wisconsin makes lifetime driver license revocation the default consequence of a fourth OWI conviction under Wis. Stat. § 343.31(1m)(b):
Upon receiving a record of conviction … that together with other records of the department show that the number of convictions under ss. 940.09 (1) and 940.25 in the person’s lifetime, plus the total number of other convictions, suspensions, and revocations counted under s. 343.307 (1), equals 4 or more, the department shall revoke the person’s operating privilege permanently. This paragraph does not apply if the most recent conviction, suspension, or revocation counted under this paragraph occurred more than 15 years after the next preceding conviction, suspension, or revocation counted under this paragraph.
The last sentence is the 15-year lookback. Permanent revocation attaches to a fourth (or later) qualifying offense only when the most recent one lands within 15 years of the one before it. If there’s a large enough gap in someone’s history, the fourth doesn’t trigger permanent revocation.
That’s how a permanent revocation sometimes slides down to a fifth or sixth offense. A person with an OWI 1st in 1998, an OWI 2nd in 2002, and an OWI 3rd in 2005 who picks up an OWI 4th in 2024 is outside the 15-year window. Their fourth doesn’t trigger permanent revocation. If they catch an OWI 5th in 2028, the most recent offense is within 15 years of the fourth, and the permanent revocation attaches on the fifth. Obviously the right facts can push this further, to a sixth of even a seventh offense.
Individuals subject to the Wisconsin permanent driver license revocation are not eligible to receive an occupational license. After 10 years, the person may apply for reinstatement under Wis. Stat. § 343.38 if they haven’t had any further OWI offenses and submit to an alcohol assessment and treatment within 45 days of applying.
Fifth and sixth offense OWIs in Wisconsin are felony charges and the penalties include mandatory prison. Contact Van Severen Law Office to speak with our OWI defense lawyers about how to defend these cases.
When a fifth offense is your first felony conviction
Before January 1, 2017, some OWI 4th offenses in Wisconsin were misdemeanors. The only time the offense was a felony was if the previous OWI conviction fell within 5 years of the current offense.
2015 Wisconsin Act 371 removed the 5-year requirement. Effective January 1, 2017, every fourth OWI is charged as a Class H felony regardless of when the prior offenses occurred.
Some defendants facing an OWI 5th today have four previous OWI conviction, but none are felonies. Their fourth resolved under old law an counts as a misdemeanor. This means that some individuals facing fifth offense operating while intoxicated offenses are also facing their first felony charges ever.
Consequences of a felony conviction beyond the sentence
A felony conviction carries consequences beyond the criminal sentence. They don’t apply just to felony OWIs, but any felony conviction in Wisconsin.
Firearm disability. You cannot possess a firearm for the rest of your life. Wis. Stat. § 941.29(1m) makes it a Class G felony for a person with a Wisconsin felony conviction to possess a firearm. Federal law contains a similar prohibition under 18 U.S.C. § 922(g)(1).
Voting rights. Under Wis. Stat. § 6.03(1)(b) and § 304.078(3), a Wisconsin felony conviction disqualifies the person from voting until the entire sentence is served, including any extended supervision. Voting rights are automatically restored once the person is off paper.
Public court record. The case is a permanent CCAP entry visible to landlords, employers, and anyone else who searches the website.
Employment and licensing. Wisconsin’s Fair Employment Act limits how far an employer can hold a criminal record against an applicant, but a felony OWI routinely affects positions involve responsible driving.
Contact Van Severen Law Office for help with your OWI 5th or 6th case
OWI 5th and OWI 6th convictions carry mandatory prison, driver license consequences that can be permanent, ignition interlock orders, and fines up to $25,000. And that’s just the sentence. A felony conviction under section 346.65(2)(am)5 also strips your right to possess a firearm for life, disqualifies you from voting until you finish extended supervision, and puts a permanent felony entry on CCAP that landlords and employers can pull up in seconds.
The OWI defense lawyers at Van Severen Law Office, S.C. handle repeat OWI cases throughout Wisconsin. We know the mandatory minimum framework, the sentencing requirements set in State v. Shirikian, the 15-year lookback on permanent revocations, and the felony consequences that follow a conviction out of the courtroom. We’ve won pretrial motions, obtained dismissals, and won at trial on OWI cases.
Finally, our drunk driving and drugged driving defense attorneys offer free consultations to potential clients facing these charges. Contact us at (414) 270-0202 to learn more.
Frequently asked questions about OWI 5th and 6th offense defense in Wisconsin
What is the prohibited alcohol concentration for OWI 5th or 6th?
More than 0.02 grams of alcohol in 210 liters of breath or 100 milliliters of blood, under Wis. Stat. § 340.01(46m). That is a fraction of the 0.08 standard that applies to most drivers, and it does not take much to reach. A single drink within an hour of the stop can put many people over it.
Do I lose my driver license forever after an OWI 5th or 6th?
Wisconsin permanently revokes a driver license after a fourth or later OWI conviction only if the most recent conviction happened within 15 years of the one before it. If your convictions fit that timeline, the DOT will permanently revoke your license on an OWI 5th or 6th. If a big enough gap breaks the sequence, you get the standard 2-to-3-year revocation plus the length of any confinement instead. Even a permanent revocation isn’t necessarily forever: after 10 years, you can apply for reinstatement.
Are the penalties for OWI 5th different than those for OWI 6th?
Section 346.65(2)(am)5 includes the same penalties for both OWI 5th and OWI 6th cases. However, courts are unlikely to treat these offenses in the same manner. It’s safe to assume that most OWI 6th cases are punished more harshly than OWI 5th cases. The number of previous convictions is an aggravating factor, and having 5 previous offenses is a more aggravated situation than having 4 previous offenses.
Are the consequences of an OWI 5th or 6th felony conviction the same as any other felony?
A few collateral consequences follow any felony conviction: the firearm disability, the loss of voting rights during the sentence, the CCAP record, and the impact on both employment and various licenses. But felony OWI convictions carry a few additional consequences: driver license revocation, ignition interlock device requirements, and mandatory minimum incarceration penalties.
What happens if I drive after losing my license permanently on an OWI?
Driving after a permanent license revocation subjects the driver to additional criminal charges and penalties. Operating while revoked under section 343.44 of the Wisconsin Statutes is an unclassified misdemeanor in Wisconsin. Different penalties apply to this offense, but if the revocation is due to an OWI or similar offense, the maximum penalty is 1 year in county jail and $2,500.00 in fines.
