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What Are The Penalties for an OWI Accident in Wisconsin?

Preventing accidents is the primary public policy argument in favor of the creation and enforcement of OWI laws. Accidents, however, are only involved in a small percentage of OWI arrests. When an accident does occur or when there is a significant threat of an accident occurring such as driving the wrong way on a divided highway, the penalties under Wisconsin law are severe. A felony prosecution for second degree reckless endangerment under Sec. 941.30(2) is often pursued in Milwaukee County and other southeastern Wisconsin counties. The prosecutions are currently based on a January 23, 2013 report to the Milwaukee County sheriff entitled “2013 Wrong-Way Driver Analysis.”

A conviction is punishable by up to 10 years in prison and a fine up to $25,000. The motorist also faces the companion charge of operating under the influence, punishable by up to 6 months in jail for second offense and up to one year for third offense. For a fourth offense if the third offense was more than 5 years earlier, incarceration is up to one year. If the third offense occurred within 5 years of the fourth offense, the maximum penalty for the fourth offense is three years initial confinement in prison. All operating under the influence offenses result in a drivers license revocation, a forfeiture or fine, AODA assessment and follow through, and a $200 reinstatement fee. Second and subsequent OWI convictions result in an Ignition Interlock Device order for 1-3 years.

All the above penalties can apply even if there is no accident. If the operation of a motor vehicle while under the influence results in an accident and there is no injury to anyone other than the intoxicated driver and if the driver is not charged with reckless endangerment, it is unlikely that the maximum penalty for operating under the influence will increase although this might occur if there are additional related charges such as hit and run of an occupied vehicle or fleeing from a law enforcement officer. Within the sentencing range, however, the fact of an accident may be considered by the judge as an aggravating factor and this may result in a more punitive sentence than would have occurred if there had been no accident.

If the accident caused by a motorist operating under the influence results in an injury (term defined as substantial bodily harm under Sec. 939.22(38), effective April 9, 2014) there are additional penalties. The following additional penalties can significantly increase if the intoxicated driver has one or more prior OWI convictions occurring on or after January 1, 1989; is operating with a suspended or revoked license; has a minor passenger under the age of 16; is operating in violation of an Ignition Interlock Device order; or has a BAC of .17 or above, .20 or above, or .25 or above. Assuming none of these enhancers apply, the following penalties are applicable:

1.         Causing injury by intoxicated use, Sec. 346.63(2)(a), punishable by a fine of up to $2,000 + costs; 30 days to one year in the county jail if jail is imposed (jail is not mandatory); 1-2 year license revocation; 60 day wait for an occupational license; and 1-2 year Ignition Interlock Device order.

2.         Causing great bodily harm while intoxicated, Sec. 940.09(1), punishable by a fine of up to $25,000 + costs; up to 12.5 years in the Wisconsin state prison with up to 7.5 years initial confinement; 2 year license revocation; 120 day wait for an occupational license; and 1-2 year Ignition Interlock Device order.

3.         Homicide by intoxicated use, Sec. 940.09(1), punishable by a fine of up to $100,000 + costs; up to 25 years in the Wisconsin state prison; 5 year license revocation; 120 day wait for an occupational license; and 1-5 year Ignition Interlock Device order.

Depending on the facts of the case an experienced defense attorney can employ all challenges applicable to any OWI prosecution and in addition can challenge whether intoxication caused the collision and whether the State has admissible evidence of an injury that meets the statutory definition.

Wisconsin law provides that it is a defense to the crime if the injury would have occurred even if the intoxicated driver had been exercising due care and had not been under the influence. The burden is on the intoxicated driver to prove by evidence that satisfies a jury to reasonable certainty by the greater weight of the credible evidence that this defense is established. Any failure of a victim to exercise due care does not by itself provide a defense to the crime charged against the intoxicated driver.

A skilled defense attorney may by filing motions obtain a court order preventing the prosecutor from using any evidence of an injury at trial. In some cases a victim’s refusal to sign a consent for disclosure of all medical records may deprive the prosecutor of the right to use any evidence of any injury.

Civil liability for the intoxicated motorist must also be considered, particularly if the intoxicated driver has auto liability insurance limits that will not cover the civil damages incurred by the victim. If the intoxicated driver does not have auto liability insurance or if the coverage is insufficient, a judgment not covered by insurance may be non-dischargeable in a Chapter 7 bankruptcy under 11 USC 523(9) which provides that a bankruptcy discharge does not discharge an individual debtor from any debt “for death or personal injury caused by the debtor’s operation of a motor vehicle...if such operation was unlawful because the debtor was intoxicated from using alcohol, drug or another substance.” In civil court a money judgment for punitive damages might also be awarded to the victim. Punitive damages are not covered by an auto liability policy.  For a very fine discussion of the intricacies, see “Punitive Damages against a Drunk Driver” by Dustin Woehl and James Ryan, Wisconsin Lawyer, Vol 78, No. 8, August 2005, and the Wisconsin State Supreme Court case of Kimble vs. Land Concepts, et al., 2014 WI 21.

For a free consultation with the law firm that has represented more motorists charged with operating under the influence than any other firm in the state, contact Hayes & Rothstein, S.C. 


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