OWI Laws Should Crack Down on Dangerous Drivers

It's no secret that Wisconsin has a strong drinking culture.

That fact alone is not necessarily a terrible thing, but when drinking gets out of control or when drinking mixes with driving, the drinking culture becomes a serious problem — for example, . Given our drinking culture, how do we address alcohol on the roads?

Our state and local drinking culture is undeniable. Although I have never been able to confirm the story, I heard an anecdote about a vehicle that pulled over on the side of the road somewhere near Beloit, because the driver was intoxicated. The vehicle then got struck by a second drunk driver. And, while the two drivers were discussing the accident, a third drunk driver struck the two vehicles.

Whether the story is true doesn't matter — it's the fact that we find it remotely believable that says a lot about our drinking culture.

We also sustain a relatively high number of taverns in each town in Wisconsin.

Locally, Port Washington has nine bars (not including restaurants, hotels, or bowling alleys, nor taverns outside of the city limits), and Saukville has four.

In other words, there is approximately one bar for every 1,000 men, women and children in the Port Washington and Saukville area. Again, that excludes restaurants, hotels and bowling alleys — which easily cut that number down to one establishment for every 500 people. Although the bars they've been surviving — which means that people are still drinking strong.

The primary plan to address the societal dangers of alcohol is to keep alcohol separate from driving.

Everyone should be familiar with the standard of 0.08, in other words, if there are more than 0.08 grams of alcohol in 100 milliliters of a driver's blood, that driver is operating under the influence.

Determining blood alcohol concentration before driving is clearly a difficult thing to do as our bodies vary greatly and circumstances alone can affect how we absorb alcohol. But, for most people, two to three drinks (standard size drinks, not the extra-large drinks that are often counted as one) over the course of an hour will put them close to the legal limit.

Even with a BAC lower than 0.08, a person can be arrested with as little as a trace of alcohol in his system, provided that the intoxicant affects his driving. Under state law, it is illegal to drive with any substance in your body that renders you “incapable of safely driving.” Operating while under even such a minimal influence is penalized the same as a violation of the 0.08 standard.

Unlike any other state, a first offender in Wisconsin is not charged with a criminal misdemeanor for operating while intoxicated. Instead, that violation is treated similarly to a speeding ticket — the offender is fined, faces some administrative suspension for his license and sometimes must install an ignition interlock device.

If the person goes ten years without another OWI, his second offense is penalized as if it were a first offense. All other second offense OWI's are criminal misdemeanors. The offender is required to spend between five days and six months in jail and pay a fine between $350 and $1100.

The penalties step up for any third offense — requiring 45 days to one year in jail and a fine of $600 to $2000. Once an offender reaches a third offense, the prohibited blood alcohol concentration drops from the standard 0.08 to a 0.02 BAC. In effect, most people would be over the 0.02 standard after a single drink.

If the offender can hold off on a fourth offense at the new standard for over five years, the next penalty is still a misdemeanor — requiring a minimum of 60 days in jail and a fine of $600 to $2000.

A fourth offense where the driver was not able to hold off five years from his previous OWI is the first level of felony OWI in Wisconsin. In all cases, a fifth offense or more is a felony in Wisconsin. For some fourth offenses, and all fifth or sixth offenses, offenders are required to serve a minimum of six months in jail and face a maximum of six years in prison.

If the offender gets to a seventh, eighth or ninth offense, he must serve three years in prison, up to a maximum of ten years. Anything beyond that and the offender is required to serve four years in prison, up to a maximum of twelve years and six months.

If the OWI offense caused injury or death, the offender can face additional criminal charges ranging from misdemeanors (causing injury during a first or second OWI) to felonies (causing injury on any subsequent OWI, causing great bodily harm by OWI or Homicide while OWI).

As it stands, the law itself does not vary penalties based upon how intoxicated an individual was when driving. The courts have adopted guidelines that try to penalize offenders based upon the BAC and surrounding circumstances, but a second offense where the driver had a BAC of 0.40 will not get the driver a penalty more severe than six months in the county jail (absent other criminal circumstances).

On the flip side, an offender convicted three times in fifteen years of operating at a BAC of 0.08, will always receive at least six months in jail if, within five more years, he is caught operating with a BAC of 0.02.

The current penalties probably help reduce the intoxication of most of us responsible enough to consider the consequences of a night out.  In other words, the majority of people like to toe the line without crossing it — and if the line is lowered from 0.10 to 0.08, the average driver will stay below the 0.08, and those close to the line are effectively less intoxicated by about one drink.

However, the current system does very little to address the most dangerous drivers on the road. Certainly any impairment is dangerous, but the greater the degree of impairment, the more dangerous that conduct will be.  And the very fact that states have lowered the threshold BAC in recent years shows that they understand that the higher the BAC, the more impaired a driver becomes, and the more dangerous he or she is on the roads.

A penalty system should factor in both the degree of danger and the factor of notice to the driver that he or she may be breaking the law. The current structure weighs repetition as notice, but fails to address heightened intoxication or other factors that should notify a driver of his impairment. If a driver has been convicted of an OWI before, that driver should have notice to change his drinking habits with regard to driving, and the present system recognizes that.

But even on a first offense, there are factors that should be considered as notice to a driver that he or she is breaking the law.

Given the different sizes and strengths of drinks, and the variable effects of bodies and circumstances on alcohol absorption, a driver operating at 0.08 may have no reason to believe that he is impaired. A driver operating at 0.24, however, does not have that same argument. 

The driver with more notice that he is breaking the law should be punished more severely than the one who doesn't intend to be or have reason to believe that he is intoxicated.  The present structure is lenient to infrequent offenders with low BACs, and appropriately so, however, it extends that leniency to offenders who are bombed out of their mind — provided the offender hasn't been caught much.

If OWI penalties get changed in the near future, and they tend to change very frequently, the state should revamp the system to continue its leniency on infrequent offenders with very low BACs, but should crack down on any offenders with BACs that are well in excess of the legal limit.