An OWI 5th charge carries serious felony penalties.  Hire a top drunk driving defense attorney.

If you’re being charged with an OWI 5th, you’ve faced a prison sentence before.  An OWI 4th charge is a felony and carries a maximum penalty of 6 years in prison.  Unfortunately, your fifth is even more serious.  The maximum penalty you face after being convicted of an OWI 5th is 10 years in prison.

Our defense attorneys regularly defend all drunk driving crimes.  Your first was a ticket.  The second OWI sent you to jail.  Your fourth drunk driving resulted in a felony conviction.  If you’ve successfully avoided prison in the past, now it’s even more crucial that you hire a top drunk driving defense attorney to defend you.  Prior to a change in the penalty scheme for 5th offense OWIs, our law firm successfully kept clients out of prison.  The way the law stands now suggests that a presumptive minimum penalty of 1.5 years applies to these cases, but that with appropriate justifications the court can move lower.

Felony OWI convictions result in serious collateral consequences, such as your right to possess a firearm.  Even though drunk driving doesn’t have anything to do with firearms, a felony conviction will prohibit you from ever possessing a gun again.  Along with the many collateral consequences of a felony conviction, there’s also a negative stigma attached to charges this serious.

Our goal is to help you through this situation the best way we can.  To speak with one of our top drunk driving defense attorneys, contact Van Severen Law Office at (414) 270-0202.  We understand that OWI arrests frequently happen at night, and answer calls 24/7.

What is an OWI 5th?

Generally, Wisconsin prosecutors pursue operating while intoxicated charges in connection to drunk driving situations.  Operating while intoxicated is abbreviated “OWI.”  While this article discusses OWI 5th charges, the same general law applies to DUI 5th charges.  Section 356.63(3) of the Wisconsin Statutes defines “drive” and “operate”:

(a)Drive” means the exercise of physical control over the speed and direction of a motor vehicle while it is in motion.
(b) “Operate” means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.
Prosecutors generally pursue OWI charges, rather than DUI charges, in Wisconsin.  After reviewing the definitions we just provided, it’s likely clear why that is.  Operate is easier to prove.  Driving requires that the vehicle actually be moving.  With an operating charge, prosecutors simply need to prove that you started the vehicle.  Arguably, operate is broad enough to include drive.
Many individuals have a hard time with this.  “If I wasn’t actually driving the car, why should I be charged?”  Fortunately, frequently these situations still serve to mitigate the case and consequences.  If you were only able to make it into your case before passing out, and that’s how the police found you, at least you didn’t put others in harm’s way.
A woman passes out from intoxication from an OWI 5th
Facing a 5th offense OWI charge in Wisconsin can be scary. Facing it with one of our drunk driving defense lawyers at your side could be a lot less scary. Contact Van Severen Law Office, S.C. at (414) 270-0202 for help.

Felony fifth offense OWI elements:

Wisconsin Criminal Jury Instruction 2663 defines criminal operating a motor vehicle while under the influence of an intoxicant.  The elements of this offense are:

  1. The defendant drove or operated a motor vehicle on the highway; and
  2. The defendant was under the influence of an intoxicant at the time the defendant drove or operated a 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.  Prosecutors must prove that the defendant was less able to exercise the clear judgment and steady hand necessary to handle and control a motor vehicle.  Particular acts of unsafe driving aren’t necessary.  Instead, prosecutors must show impairment of the defendant’s ability to safely control the vehicle.

Elements of the offense are the first place that our defense attorneys begin defending your case.

What penalties do I face for a fifth offense drunk driving charge?

If we beat your OWI charge, there’s no penalty.  Upon a conviction for fifth offense OWI, these penalties apply:

  • Up to 10 years prison
    • 1.5 year presumptive minimum in custody
    • 1 year mandatory minimum in custody
  • 24-36 month driver license revocation (eligible for occupational license after 45 days)
  • 12-36 month ignition interlock device
  • $600+ fine
  • Alcohol assessment and treatment

Sometimes individuals are confused because of how previous OWI law worked.  Previously, if you were convicted of four offenses within five years, the fourth offense was a felony.  If your offenses were spread out by more than five years, the fourth offense was still a misdemeanor.  Sometimes individuals get this confused when talking about OWI law.  To be clear, all 4th and 5th offense drunk driving charges in Wisconsin are felonies.

No mandatory minimum OWI penalty?

Section 346.65(2)(am)5 of the Wisconsin Statutes describes the penalties associated with 5th and 6th offense OWIs.  Importantly, the penalties between the two are the same.  Some confusion lies in the very last portion of this statute:

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.

There’s a mandatory minimum penalty that includes 1.5 years initial confinement in prison.  But the court can impose a lesser “term of confinement” if the court finds certain communal interests satisfied.  So the court can move down to a 1 day jail sentence, correct?  Incorrect.  The phrase “term of confinement” refers to the in-custody portion of a bifurcated sentence – in other words, initial confinement, or the in-custody portion of a prison sentence.  Because a prison sentence is required for an OWI 5th charge, the mandatory minimum is 1 year in custody.

free consultation client testimonials

How do we win my OWI 5th case?

If you’re facing fifth offense OWI charges, there are four OWI convictions on your record.  Are all of those drunk driving charges the same?  Surely your answer is no.  Perhaps some of those cases involved traffic stops.  Others may have included civilian observations of you driving, with subsequent law enforcement contact.  Or perhaps you were doing something like trying to “sleep it off” in your car.  One thing is certain: all drunk driving cases are different, and that requires different defenses.

In all drunk driving cases, one of our first questions will be “how did the cops stop you?”  The reason for this is simple: it’s the first potential motion we can file, challenging police behavior.  Law enforcement must have probable cause to believe that a crime is occurring, or just occurred.  Alternatively, they must have reasonable suspicion of the same.  Probable cause usually involves them seeing a violation such as speeding.  Reasonable suspicion is a combination of all the facts and circumstances surrounding your driving.  Those factors must lead the officer to believe that a crime, like OWI, is occurring.  Did the offense occur at bar time?  Was it in a bar district?  How was your driving?  If we can challenge the reason for your stop, we will.

Frequently the next questions involve the arrest.  Were field sobriety tests correctly administered?  How was your behavior with the police officer?  And, after reviewing dash/body camera footage, do we have a basis to challenge the arrest?

While it’s truly impossible to determine exactly how we’ll defend your case (at least at this point), one thing is for sure: you always maintain a right to jury trial.

Hire a top drunk driving attorney from Van Severen Law Office

Fifth offense drunk driving charges are obviously serious.  The maximum penalty you face upon conviction for this Class G felony is ten years in prison.  That ten years prison doesn’t require ten years actually locked up, but converts into five years initial confinement and five years extended supervision.  At Van Severen Law Office our criminal defense attorneys regularly defend individuals facing high-level felonies.  And that certainly includes drunk driving charges.

You’ve faced potential prison time before, and you know how scary that is.  We understand where you’re coming from, and it’s our opinion that an ally in your corner is invaluable.  We’ve prepared for fight for you and will fight for the most-fair result in your case.

Contact Van Severen Law Office at (414) 270-0202.  Let’s start talking about your case.  From that phone call we’ll set up a time to meet for a free initial consultation.  At that consultation we’ll discuss how to move forward and how we can help you.  And finally, we certainly recognize that drunk driving cases frequently happen in the middle of the night.  For that reason, we answer phones 24/7/365.

icon-angle icon-bars icon-times