What's New in OWI Defense?

PROPOSED LEGISLATION designed to destroy the right to discovery in refusal cases: find out which legislators are in the prosecutor's pockets.

The "New" OWI statute -- what it does, and doesn't, change

What started out last year as A.B. 221 has now been adopted, in somewhat changed form, as Senate Bill 125 and signed -- at ceremonies staged at Miller Brewing Company's headquarters in Milwaukee -- into law by the Governor. For the most part, its provisions become effective on January 1, 2001.

The new law significantly expands the use of ignition interlocks, repeals the mandatory forfeiture of vehicles (it remains an option, however), prohibits work release/Huber privileges for any convicted driver who is not in compliance with court ordered assessment and treatment requirements, and increases fines in certain drunk driving cases.

Here's a summary of what the new law provides:

Ignition interlocks can be ordered in second-offense cases. The statute allows judges to require anyone convicted of a second offense drunk driving or second offense test refusal to have an interlock installed on his or her vehicle. The interlock is a judicial option, however. Judges are allowed, but not required, to order interlocks in second offense cases. If the judge orders an interlock, it must be for at least a year and cannot exceed the maximum length of driver revocation allowed by law for the offense or refusal. (An interlock is a device which requires that the driver submit an alcohol-free breath sample to a device before the vehicle can be started and, at intervals while the vehicle is operating, to keep it running.) The interlock requirement, however, an be applied only to non-commercial vehicles.

As an alternative to interlocking, the statute also expands the availability of "immobilization" to second offense drunk driving and refusal cases. As with the interlock, if there is a conviction of a second offense drunk driving or a second offense test refusal, the judge may -- but isn't required to -- order the vehicle used in the offense, if owned by the person committing the offense/refusal, be immobilized (which generally means "booting"). As with interlocking, if the judge orders immobilization, it must be for at least a year and cannot be for longer than the maximum period of revocation allowed for the offense/refusal.

Interlocking or immobilization are options in second offense cases. The judge isn't required to do either and may do neither.

The statutory requirement of an interlock or immobilization in third offense cases is not affected by the new provisions. However, the new bill does restrict interlocks and immobilization to a vehicle which is both owned by the convicted person and which was "used in the violation or improper refusal."

The new law repeals mandatory vehicle forfeiture in fourth and subsequent offense cases, though it remains an option available to the prosecutor. Instead of mandatory forfeiture, use of interlocking and immobilization is also increased by making these available options upon conviction of a fourth or subsequent offense drunk driving or test refusal. Previously, seizure and forfeiture of a vehicle was a judicial option in third offense cases and mandatory after a fourth offense conviction for drunk driving or test refusal. This has now been amended. While a court may still order seizure for forfeiture in any third or subsequent offense/refusal case, forfeiture is no longer mandatory in any case. The court may, instead, order an interlock or immobilization.

The statute also requires the Wisconsin Department of Transportation create rules governing the installation and use of ignition interlocks, regulating interlock providers (including reporting requirements), and setting the fees that providers may charge.

Also, the method of counting prior convictions is slightly changed: convictions for homicide or great bodily harm by use of a motor vehicle will count lifetime in calculating whether a new drunk driving or refusal is a first, second, third, etc. (This provision originated as A.B. 665.)

Further, the prohibited alcohol concentration level is lowered to 0.02 for those with fourth offense or greater drunk driving violations. In other words, if the driver has three or more past drunk driving convictions or refusal revocations or combination of those, the PAC level is now 0.02.

The new law also vastly increases fines in third and subsequent offense drunk driving cases where the alcohol concentration was high: the minimum and maximum fine ranges are doubled if the BAC is 0.17 to 0.199, tripled from 0.20 to 0.249, and quadrupled above that. However, an escape clause which already existed in prior law is expanded to allow a judge to impose lower fines for those that can't pay the higher amounts and require the person to use the reduction in amount to pay for the assessment and "driver safety plan," i.e., treatment.

The new statute prohibits Huber law or work release privileges for drivers doing jail or prison time for a drunk driving conviction if that person is not in compliance with the convicting court's order for an alcohol assessment and the "driver safety plan," i.e., Group Dynamics or treatment, recommended by the assessing agency. But, there's a loophole: under the bill, "[t]his subsection does not apply if the prisoner does not have sufficient funds to make any payments necessary to obtain the assessment or to comply with the driver safety plan."

Under the new law, the requirement that a stop title transfer order be filed with the Wisconsin Department of Transportation whenever a driver is charged with a third or subsequent offense drunk driving is modified. Under prior law, these orders applied to all vehicles which the person owned. Now, the orders are limited only to the vehicle which is both owned by the person and which was used in the violation or improper refusal.

Municipal court practice in drunk driving cases is also affected. In a seemingly minor change, Wis. Stat. sec. 800.03(4) is changed to provide that an appearance "may be" -- rather than 'is' -- required by a "municipality" (not 'municipal court or judge') in a drunk driving case. Apparently, this is intended to validate default judgments in municipal court drunk driving cases.

As a housekeeping measure, Wis. Stat. sec. 343.323(2)(b) was amended to require that all driver records of convictions, revocations, or suspensions that would count as priors in a drunk driving case, i.e., those listed in Wis. Stat. sec. 343.307, be kept by the Wisconsin Department of Transportation "permanently," i.e., forever. This simply codifies present DOT practice.

Lastly, a "safe-ride" program is created -- essentially, DOT is allowed to grant money to municipalities and counties to fund giving people rides home from bars -- and a year's study of treatment as an alternative to incarceration is ordered and funded.

A.B. 666 -- Proposed ban on discovery in refusal proceedings

The decision in State v. Schoepp, in which Tracey A. Wood's former law firm established the right to use civil discovery statutes in refusal proceedings, is again under attack by the prosecutor's lobby and state legislators who believe justice is served best by giving prosecutors an unfair advantage. A.B. 666, sponsored by Representatives Stone, Brandenmuehl, Ryba, Ladwig, Hahn and Hundertmark, and co-sponsored by Senator Huelsman, would prohibit all discovery in a refusal proceeding.

Under the proposal, discovery would be restricted to the police reports of witnesses called at a refusal hearing. Moreover, the reports would be produced only at the hearing and only at the time the witness testifies, although "for cause" the judge could require the reports be disclosed "before the hearing."

Prosecutors in Wisconsin have been complaining since Schoepp was decided in 1996 about its requirements, which impose on prosecutors the same discovery obligations imposed on drivers. So, prosecutors are trying to win in the Legislature a case that they lost in court.

The Legislature adjourned without taking action on this proposal, but it is certain to resurface in the next regular session.