OWI 7th, 8th, and 9th offense defense in Wisconsin
Section 346.63(1) of the Wisconsin Statutes prohibits operating while intoxicated. The law prohibits driving or operating a motor vehicle under the influence of an intoxicant, with a prohibited alcohol concentration, or with a detectable amount of a controlled substance in your blood. The penalties for operating while intoxicated in Wisconsin escalate based on the number of previous convictions the defendant has. This article discusses OWI 7th, OWI 8th, and OWI 9th offenses, which share the following penalties:
These offenses are Class F felonies, which carry up to 12.5 years prison. OWI 7, 8, and 9 charges include a mandatory minimum of 3 years in prison.
Up to $25,000.00 in fines.
Driver license revocation: 2-3 years plus length of confinement. (Drivers convicted of 4th and subsequent drunk driving offenses are subject to a Department of Transportation lifetime driver license ban.)
Ignition interlock device: 1-3 years plus length of confinement.
Wisconsin is a state known for alcohol consumption, and individuals charged with drunk driving at this level face an important change: once an individual has three prior OWI convictions, the prohibited alcohol concentration moves from a .08 to a .02. That’s one or two drinks. This BAC change applies to 7th, 8th, and 9th offense operating while intoxicated charges. No similar modification applies to drugged driving charges.
Van Severen Law Office is a Wisconsin criminal and drunk driving defense law firm. A significant portion of the work we do focuses on defending individuals charged with felony-level OWI offenses throughout the state. We’ve successfully argued motions that led to dismissals, won at trial, and even successfully resolved cases for clients since the inception of our firm. Contact us at (414) 270-0202. Let’s talk about your case, answer your questions, and figure out if you’re a good match for our firm.
(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. (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) in the complaint, the crimes shall be joined under s. 971.12. 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 sub. (2)(am) and s. 343.307 (1).
Paragraph (a): under the influence of an intoxicant or a controlled substance
Paragraph (a) covers driving or operating while impaired by an intoxicant, a controlled substance, a controlled substance analog, or any combination. To obtain a conviction under paragraph (a), the State has to prove your ability to safely operate the vehicle was actually impaired at the time you drove or operated. A breath or blood result can be evidence, but paragraph (a) needs proof of impairment beyond the number on the machine.
Paragraph (am): detectable amount of a restricted controlled substance
Paragraph (am) applies when the person has any detectable amount of a restricted controlled substance in the blood. If the State can prove a restricted controlled substance was in your blood at the time you drove or operated, that alone supports a conviction under paragraph (am). The list of restricted controlled substances comes from Wis. Stat. § 340.01(50m). It includes all schedule 1 substances, heroin, controlled substance analogs, cocaine, methamphetamine, and delta-9 THC.
Paragraph (b): prohibited alcohol concentration
Paragraph (b) applies when your alcohol concentration crosses the prohibited alcohol concentration provided in § 340.01(46m). The State only needs to prove your alcohol concentration at the time you drove or operated crossed the number that applies to you. Normally, it’s 0.08. At a 7th, 8th, or 9th offense prior count, that number is more than 0.02.
Paragraph (c): joinder and single conviction
Paragraph (c) is a procedural rule about how the State charges these offenses. When the same incident supports charges under more than one of paragraphs (a), (am), and (b), the State can pursue any combination, and the counts have to be joined. A plea hearing will only involve a conviction for one of those counts. But sometimes at trial, the court or jury find the defendant guilty of both PAC and OWI. In this situation, paragraph (c) makes clear that the court can only enter a judgment of conviction on one of those counts.
Standardized field sobriety tests
Standardized field sobriety tests are used by law enforcement officers to determine whether a driver is under the influence of drugs or alcohol. Frequently the failures observed during the test are discussed at trial to show the defendant’s impairment. Officers are trained to administer a standardized battery of three tests approved by the National Highway Traffic Safety Administration: horizontal gaze nystagmus, the walk and turn, and the one leg stand. For a deeper walk-through, see our full guide to standardized field sobriety tests.
Horizontal gaze nystagmus, or HGN, is an eye test. The officer holds an object (typically a pen or fingertip) roughly a foot from your face and moves it slowly side to side while watching your eyes. The officer looks for for involuntary jerking of the eye at specific angles. Some involuntary jerking is normal, but it becomes more pronounced while impaired by alcohol and certain drugs.
The walk and turn test asks you to walk heel to toe along a real or imaginary line for nine steps, turn in a specific way, and return the same way. The officer watches for the following clues for impairment: whether you keep your balance while listening to instructions, start too soon, stop while walking, miss heel to toe, step off the line, use your arms for balance, turn improperly, or take the wrong number of steps.
The one leg stand test asks you to stand on one foot roughly six inches off the ground with your arms at your side and count out loud until told to stop. The officer watches for various failures: swaying, hopping, putting the foot down, and using the arms for balance.
Drugged driving and marijuana
Not every OWI 7th, 8th, or 9th case involves alcohol. As you’ll recall, section 346.63(1)(a) also includes impairment by a controlled substance. Section 346.63(1)(am) includes any detectable amount of a restricted controlled substance. These two charges operate in similar manner to how an alcohol-based OWI and PAC charge are charged together.
Frequently when OWI cases don’t involve alcohol, they do involve marijuana. Section 340.01(50m) of the Wisconsin Statutes provides a list of “restricted controlled substances” for an OWI charge. These include all schedule 1 substances, heroin, controlled substance analogs, cocaine, methamphetamine, and delta-9 THC (at a concentration of 1 or more nanogram per milliliter of a person’s blood).
When drug impairment is suspected, the State often calls a drug recognition expert, or DRE. A DRE is a police officer trained through the International Drug Evaluation and Classification Program, coordinated by the International Association of Chiefs of Police with support from the National Highway Traffic Safety Administration. The DRE evaluates the driver and offers an opinion about whether the driver’s impairment is caused by drugs. Our blog covers what a DRE is and how the examination works.
An OWI 7th, 8th, or 9th is a felony-level charge. A conviction includes mandatory incarceration in prison. Contact Van Severen Law Office, S.C. at (414) 270-0202 to discuss your case with any of our OWI defense attorneys.
Contact Van Severen Law Office regarding your OWI 7th, 8th, or 9th in Wisconsin
Van Severen Law Office regularly represents drivers charged with operating while intoxicated throughout Wisconsin. This includes both drunk driving and drugged driving. It also includes non-criminal first offenses, misdemeanors, and felonies. We defend drivers facing OWI 7th, 8th, and 9th charges.
The fact that you have multiple previous convictions does not mean that the government’s evidence should go unexamined. We believe that everyone deserves a qualified, aggressive drunk driving defense attorney on their side, and we strive to provide that. We’re familiar with the constitutional issues regularly present in OWI cases, and we’re prepared to challenge them. We’re seasoned trial attorneys. And if you’re simply looking to resolve your case, we can help you with that.
Finally, let’s find a time to get together to discuss your case. We offer free initial consultations to potential clients, and we’d like to learn more about the situation you’re facing. Contact us at (414) 270-0202 to learn more.
Frequently asked questions about OWI 7th, 8th, and 9th offenses in Wisconsin
What are the penalties for 7th, 8th, and 9th offense operating while intoxicated in Wisconsin?
7th, 8th, and 9th offense OWIs in Wisconsin are Class F felonies, which carry a maximum sentence of 12.5 years prison. The mandatory minimum term of initial confinement for these offenses is 3 years in prison. Additional penalties include up to $25,000.00 in fines, a driver license revocation of 2-3 years plus length of confinement (a separate DOT lifetime DL revocation), and required ignition interlock device installation for 1-3 years plus confinement.
Are the penalties for OWI 7th, 8th, and 9th in Wisconsin the same?
Yes. The penalties for 7th, 8th, and 9th offense OWI in Wisconsin have the same penalty. That being said, it’s unlikely the court will give an individual facing a 7th offense conviction the same sentence as when he is sentenced for his 9th offense OWI. Obviously the more previous convictions you have, the more aggravated your case is.
Why does my PAC threshold drop to more than 0.02?
Wisconsin bases the prohibited alcohol concentration on the number of previous OWI offenses the driver has. Section 340.01(46m)(a) uses “0.08 or more” for anyone with 2 or fewer priors counted under § 343.307(1). Section 340.01(46m)(c) applies a lower “more than 0.02” threshold for anyone with 3 or more priors. If you’re facing a 7th, 8th, or 9th offense OWI, you have more than 3 priors and the .02 threshold applies to you.
