What is an Aggravated OWI or DUI in Wisconsin?

What is an Aggravated OWI or DUI in Wisconsin?

While there are some specific circumstances that will increase the penalties for an OWI conviction, there is no specific statute that determines whether an OWI is aggravated or not. For OWIs in Wisconsin, the court will review both aggravating and mitigating circumstances including the amount of alcohol or other controlled substance in the person’s system. An OWI charge will be aggravated by circumstances where the charged individual created more risk, showed disregard for others, or acted especially irresponsibly.    

In this article, we will discuss what an Aggravated OWI is in Wisconsin, Including:

• What is an OWI/DUI in Wisconsin?
• What are examples of Aggravating Factors?
• What are the Penalties for an Aggravated OWI?

What is an OWI/DUI in Wisconsin?

DUI stands for “Driving under the Influence” while OWI stands for “Operating while Intoxicated.” They mean the same thing. Wisconsin Statute 346.63 refers to this offense as “Operating under influence of intoxicant or other drug.” While only a technical distinction, Under Wisconsin Statute 346.63(3), Drive is defined as “the exercise of physical control over the speed and direction of a motor vehicle while it is in motion” while Operate is defined as “the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.” PAC, however, stands for “prohibited alcohol concentration.” While a prosecutor may have to prove that the driver was impaired in some OWI cases, under Wisconsin Statute 346.63(1)(b), in a PAC case, the prosecutor only needs to show that the charged individual had a prohibited alcohol concentration (Blood Alcohol Concentration/BAC greater than or equal to .08 g/mL).

While most commonly associated with alcohol, Wisconsin Statute 346.63 prohibits driving or operating a vehicle while under the influence of an intoxicant, controlled substance, a controlled substance analog, any drug which renders the driver incapable of driving safely, or any combination of said substances.  

OWI’s are “strict liability” offenses. Most crimes require that the individual charged had the requisite intent to commit the crime for which they are charged. For example, theft requires that the charged individual intend to take from and permanently deprive the victim of the victim’s property. With an OWI however, the charged individual does not need to intend to drive under the influence, to be charged and convicted, they only need to 1) drive, and 2) be under the influence of drugs/and or alcohol.  

What are examples of Aggravating Factors?

Aggravating factors are circumstances where the charged individual created more risk, showed disregard for others, or acted especially irresponsibly. If a court finds aggravating factors, it may increase the penalties at sentencing.  

Aggravating Factors Could Include:

• BAC. Blood Alcohol Concentration or Blood Alcohol Content is one of the most common aggravating factors. While a BAC above .08 g/100mL is above the legal limit, the higher the Blood Alcohol Concentration, the worse it is. Some Counties use guidelines to increase penalties depending on how high the charged individuals BAC is.  
• Drugs. Alcohol is not the only intoxicating substance that may be considered. If the charged individual has a significant amount of a controlled substance, or other prohibited drug in his or her system, that drug, and the amount, can also be considered. Having any combination of drugs and/or alcohol in one’s system, as opposed to only one intoxicant, could also be an aggravating factor.  
• Priors. Unless there are aggravating factors, it is unlikely that a charged individual will be sentenced to a period of initial confinement for their first OWI in Wisconsin. However, the more OWIs that an individual is convicted of, the more serious the charges and penalties become.  The more recent previous OWI are, the more significant of an aggravating factor they will be.  
• Harm to others. If intoxicated driving results in the death or injury of another person, that is a serious aggravating factor that will be taken into consideration and may be a charged separately in addition to being an aggravating factor.  

• Damage to property. An accident which results in damage to another party’s vehicle or other property. Failure to notify law enforcement of damage or injury caused is also aggravating.    
• Legal violations. Violating a court order, or the rules of one’s supervision by for example, violating a no-drink rule, could also be an aggravating factor. If, in addition to operating while intoxicated, the driver commits other traffic violations or is speeding, that could be considered as well. This category of factors would also include individuals who do not have drivers licenses or licenses that have been suspended or revoked, especially by previous OWI violation(s).  
• Unjustified risk. If a minor passenger (someone under the age of 16) is in the vehicle at the time of the violation, there are mandatory statutory penalties and jail time. Having anyone else in the vehicle could be an aggravating factor and would likely be more significant a factor for at-risk groups like pregnant women, individuals with a disability, or elderly individuals.  If the OWI takes place in a high traffic or pedestrian area, or in a construction zone, that could be considered by the court as well.  
• Behavior, attitude, and conduct. Being particularly rude or uncooperative with law enforcement at the time of the violation could be taken into consideration. Showing a lack of remorse for one’s conduct, or repeatedly failing to take any action to address problems with alcohol or other drugs could also be aggravating factors.  

Mitigating Factors:

Mitigating factors can help reduce an individual’s penalties at sentencing. Mitigating factors could include the flip side of most of the items on the aggravating factors list. Having a relatively lower BAC, any prior OWIs being significantly older, a long and safe driving record, consistent sobriety, cooperative with law enforcement, etc.    

What are the Penalties for an Aggravated OWI?

In general, judges have a lot of discretion in determining what appropriate sentencing should be. Aggravating factors are likely to increase fines, incarceration, and potentially the class of crime committed. Aggravating factors can also increase the likelihood of and duration of license revocations, court ordered treatment requirements, ignition interlock devices, or other sobriety requirements. While first offense OWIs generally do not involve incarceration, 2nd and 3rd offenses will. If an individual makes it to their 4th OWI or beyond, in addition to other court ordered requirements, the individual will be facing felony charges, and much more significant incarceration time.  

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