Skip to main content

Am i able to go to rehab instead of jail for 3rd offense of owi with child

Lancaster, WI |
Attorney answers 5


No, if you are convicted of 3rd OWI in WI, you will face lengthily mandatory jail time, or even prison, if a minor was in the vehicle at the time and DA pursues the minor occupant penalty enhancer to the end. Partial reprieves for in patient rehabilitation are very rare, but may result in a lesser sentence. Here in Racine County, I have also sometimes been able to get clients into a local county jail rehab program allowing offenders to obtain major jail time reductions, but this rehab program within the jail and does not allow Huber release (usually ruling out release for care for your kids). Many other counties have similar local programs so you should ask your local attorney to check into this. Your attorney may also find technical defenses which could beat the charge or improve your bargaining position against the DA, so you should not delay in hiring an experienced local criminal lawyer. Many defenses tend to be lost due the passage or time or after the first court appearance. You might also be able to gain a small advantage by contesting the administrative suspension of your license, but only if you do so within the first 10 days after you are cited, so time is of the essence.

Do not assume that I am your attorney due to this answer, but feel free to call my office in Racine (262-633-3090 or email for clarifications or further questions. Otherwise, I would not be taking any further action on your case. See me on the web at View my past answers at , or

My answer here does mean that I am representing you, so be sure to consult your own attorney before deciding on what you should do, or contact my office at 262-633-3090, 333 Main St, Racine, WI 53403, during business hours if you desire formal representation. See me on the web at, or view over 15 years of my previous answers at answers may contain advertising materials.


By statute you will need to serve at least 48 hours in custody I believe but then there are programs county-by-county aimed at rehabilitating people so that they don't lose their livelihoods/families. How these programs are used is generally up to the judges and to some extent up to the DAs. Driving twice with a child as a passenger is going to be seen as wildly irresponsible. You need to get the best attorney you and your friends and family can afford under the circumstances.

ALWAYS mark answers you appreciate with positive feedback and select a best answer!<p><a href=""> Attorney Nicholas J. Passe</a><p>Disclaimer: Per the community guidelines, no attorney/client relationship is created by the asking or answering of questions on this web site, nor do the answers constitute legal advice. Always hire an attorney before making any important legal decisions. Posting details of a case on may be subject to discovery in criminal or civil litigation, so erring on the side of nondisclosure is wise.<p><a href="">Moen Sheehan Meyer, Ltd.</a>


No. A third offense enhanced by the presence of a child in the vehicle is a felony. Not only is there a mandatory minimum jail sentence that applies, but prison is also a possibility. Getting yourself immediately into treatment will help mitigate your sentence, but you need to get yourself a lawyer.

This answer is provided for general information only. No legal advice can be given without a consult as to the specifics of the case.


There is a minimum mandatory jail term for a third offense. So long as the court imposes the minimum term, the judge has discretion to place the defendant on probation. One condition of probation may be that the defendant enroll in an alcohol rehabilitation program. If my clients are out on bail, I recommend that they get into treatment immediately (i.e. while the case is still pending). Doing this allows the defendant to demonstrate for the sentencing judge that he/she is serious about taking responsibility.

This answer is for informational purposes only. By answering this question, no attorney/client relationship is created. Although the legal information is accurate, it may not be appropriate for your situation. The best way to handle any legal problem is to seek the advice of an attorney.


The mandatory minimum jail is 45 days without a child in the car. Because there was a child in the car, the minimum is doubled to 90 days. However, the DA is not likely to offer and the judge is not likely to order the minimum. The maximum of 1 year is also doubled to 2 years because there was a child in the car. Unless you win, you would expect, I'd say 5-7 months with proof of counseling, and 9+ months without counseling as a statewide ballpark expectation, assuming your BAC was near the state average of .17. Time to lawyer up.