Christian Schneider

Author, Columnist

A Blueprint for a New Wisconsin Drunk Driving Law

Lawmakers in Wisconsin now appear serious about getting tough on drunk driving in Wisconsin, following the death of 39 year-old Jennifer Bukosky, her unborn child and 10-year old daughter at the hands of three-time convicted drunk driver Mark Benson. Even Governor Jim Doyle has proposed making a third drunk driving offense a felony. Other lawmakers have proposed confiscating offenders\’ cars after a third offense, as well as sending drunk drivers directly to prison (Benson killed Bukosky and her children during a period before he was supposed to report to jail after his third conviction.)

When crafting a tougher new law, the sensible thing for legislators to do is to see what other states have done to crack down on drunk driving. The National Conference of State Legislatures has provided a chart that details every state\’s criminal drunk driving statute. When you look over the list, Wisconsin stands out in how light we are on drunk driving offenders. In the overwhelming majority of states, first non-accident offenses are at least a misdemeanor (although, admittedly, \”misdemeanor\” means different things in different states.) Exceptions from first-time misdemeanors include New York, New Jersey, Massachusetts, Louisiana, and New Hampshire – although subsequent offenses usually ratchet up the penalties in those states.

Generally, it is the third, fourth, and fifth offense (usually within a period of a few years) that moves the offense up to a felony in most states. Yet in Wisconsin, the first non-injury offense is a civil conviction. Injury-related DUI offenses constitute either a Class D or Class F felony. Second through fourth offenses are criminal misdemeanors that carry time in the county jail, with a fifth offense moving up to the felony level. (And, as we hear about at least once a year in Wisconsin, if you lose your license, you can always drive your tractor to the liquor store.)

For a full list of Wisconsin\’s criminal drunk driving penalties, click here.

(In addition to being a civil conviction, Wisconsin law is even lighter on drivers with blood alcohol content between .08 and .1. For a summary of the .08 law, click here.)

While higher criminal penalties are one way other states go after repeat drunk drivers, they aren\’t necessarily the only option.

25 states have opted for mandatory ignition interlock systems for some drunk drivers. Wisconsin is one of 20 states that allows ignition interlock devices to be installed \”at judicial discretion,\” which is weaker than some states that make the interlock devices mandatory in some or all cases. Several studies show drunk driving recidivism rates drop between 50 and 95 percent when ignition interlock devices are utilized. While some fear that these devices are too easy to circumvent (such as by having someone else blow into the tube for them), newer technology is arriving that makes that more difficult. For instance, some new devices include breath pulse codes, hum-tone recognition, and \”blow-and-suck patterns.\”

From the NCSL report on ignition interlock systems:

Four states have taken the lead on ignition interlocks by making them mandatory for all convicted drunk drivers, even first-time offenders. New Mexico was the first state, with a law passed in 2005, to require ignition interlocks for all offenders. The state has seen a 28 percent decline in alcohol-related fatalities since the new law went into effect.

Since then, three more states-Arizona, Illinois and Louisiana-have passed similar laws that mandate an ignition interlock for every convicted drunk driver. Oregon and Washington require ignition interlocks for all offenders who want to have their driving privileges reinstated. Colorado, Kansas and New Hampshire make them mandatory for repeat offenders and those convicted of so-called \”high BAC\” offenses. Sixteen states require them in some circumstances, while 20 states and the District of Columbia allow interlocks at the discretion of the courts.

Five states at some point have employed either special license plates for drunk drivers, or required a sticker be affixed to their license plate. The effectiveness of these programs seems to be mixed, as Oregon let their pilot program lapse without reauthorizing it, and Iowa repealed the law altogether. According to NCSL, five states considered new license plate laws in their 2008 sessions.

27 states have passed laws creating enhanced penalties for driving drunk with children in the car. (In 2003, one Louisiana woman was found passed out in her car with five children, ages 4 to 9, in the car with her.) 16 states have increased the penalties for refusing chemical blood alcohol tests.

A new Wisconsin law could employ any number of these strategies. But it must be done right, and it has to pass the common sense test to which it will undoubtedly be subjected to by the public.


  1. First offense should be a criminal misdemeanor.

    Second offense within five years should be a Class I felony. Second offense outside of five years should be a misdemeanor with a minimum 5 days in jail or 120 hours of community service.

    Third offense in five years should be a Class H felony. Third offense outside of five years should be a Class I Felony with 10 days in jail or 275 hours of community service required.

    Fourth offense or higher should be a Class F felony and none of the jail time can be suspended into probation.

    Any offenses committed while your license has been suspended raise the offense one felony level.

    Wisconsin should consider using SCRAM alcohol monitors. It is an ankle device, similar to a home detention bracelet, that measures alcohol consumption through the pores in your skin and reports any violations.

    Refusing a blood/breath test should result in a 365 day license suspension, regardless of whether the test would have shown the presence of alcohol (i.e. you refuse, they get a warrant and you blow 0.0, your license is gone for 1 year).

  2. In response to the posted comment, I’m with ya almost until the end. But refusing to incriminate yourself should never result in mandatory punishment. The burden of proof should never be placed on the accused. Creeping me out here….

  3. First offense should be misdemeanor with the blood alcohol content being the major factor. Anything over .14 would permit stiffer penalties. Over .2 would put you into the same situation that a person with 2 OWI’s has.

    Second offense, up to 1 year in jail but no less than 6 months. Guidelines also include your B.A.C. Penalties for higher would be stiffer.

    3rd offense should be a felony and include prison time.

  4. I know this is way late, but here is my response to the comment about a penalization for refusing to incriminate yourself? Come on, it’s fundamental law that should never go away in my opinion. DUI Penalties

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