How to Fight a Second Offense OWI Criminal Charge in Wisconsin

Facing a second Operating While Intoxicated (OWI) charge in Wisconsin marks a severe turning point. Unlike a standard first offense, which is typically a civil ticket, a second offense transitions into the realm of criminal law. The state prosecutes repeat offenders aggressively, and the potential consequences include mandatory jail time, massive fines, and a long-term loss of your driving privileges.

Because your freedom is directly on the line, trying to navigate the criminal justice system alone is highly risky. We encourage you to use our Lawyers Directory to find a seasoned criminal defense attorney in Wisconsin who can protect your constitutional rights, analyze police evidence, and build a strong defense strategy on your behalf.

The 10-Year Lookback Rule for 2nd Offenses

To determine if your new charge is a second offense, Wisconsin applies a specific timeframe. According to Wis. Stat. § 346.65(2)(am)2, a second OWI is classified as a misdemeanor only if your first OWI conviction occurred within the last 10 years. If your first OWI happened 11 or more years ago, the state will generally treat the new incident as a civil first offense again, provided there are no other aggravating factors.

However, the calculation of this 10-year period can be tricky. It is measured from the date of the previous offense to the date of the new offense, not the conviction dates. An attorney can review your driving abstract to verify if the prosecutor is correctly applying the lookback rule.

Navigating the Wisconsin Court System

Since a second OWI is a crime, your case will bypass municipal courts and go straight to the county circuit court. If you were arrested in Madison, you will report to the Dane County Circuit Court, Madison. If the incident happened in Green Bay, your hearings will take place at the Brown County Circuit Court, Green Bay. Circuit courts have formal procedures, involving initial appearances, discovery of evidence, motion hearings, and potentially a jury trial.

Securing Huber Work Release

The most daunting aspect of a second OWI is the mandatory minimum jail time. Wisconsin law requires a minimum of 5 days in jail, with a maximum of up to 6 months. Fortunately, courts often grant 'Huber privileges' to offenders.

Huber work release allows you to leave the county jail during the day to go to your job, attend school, or participate in medical treatment, and then return to the jail to sleep. This is crucial for maintaining your employment while serving your sentence. Your defense attorney can petition the judge to explicitly grant Huber privileges during sentencing, though the final approval often rests with the county sheriff's department managing the jail.

How Electronic Monitoring (EMP) Serves as a Jail Alternative

In many Wisconsin counties, you may not have to sit in a physical jail cell at all. An alternative to traditional incarceration is the Electronic Monitoring Program (EMP), commonly known as house arrest. An ankle bracelet monitors your location, allowing you to serve your mandatory sentence from home while continuing to work.

Not all counties offer EMP, and those that do have strict eligibility requirements. You generally must have a landline or specific cell service, pay daily monitoring fees, and strictly adhere to pre-approved schedules. A lawyer can argue for your placement in the EMP program as a safer, more productive alternative to county jail.

Common Defenses and Costs

Defending a second OWI often involves challenging the traffic stop, the field sobriety tests, or the accuracy of the blood/breath tests. Wisconsin courts are highly scrutinizing of police procedures. For example, in State v. Quartana, 213 Wis. 2d 440 (WI Court of Appeals 1997), the court examined the limits of police authority during an OWI arrest, which can be leveraged to suppress evidence if your rights were violated.

Frequently Asked Questions (FAQ)