In Wisconsin all drunk driving charges after the first one are criminal charges handled in Circuit Court. First offense cases are not charged as crimes unless there is a minor in the car or there is an injury. Those non-criminal (civil) charges may be handled in municipal court or Circuit Court. Both criminal and civil drunk driving charges can have profound consequences. A criminal case can be either a misdemeanor (with a jail sentence) or a felony (with a potential prison sentence). This page describes Dane County practice but much of it is the same regardless of which county a case is charged in. Sometimes an incident charged as drunk driving may happen in more than one county, in which case it may be charged in any county where the driving under the influence occurred.
First Offense OWI / DUI is not treated as a crime in Wisconsin unless there is a child in the vehicle or someone is injured. That does not mean it is treated lightly. First offense OWI / DUI in Wisconsin often results in more significant penalties than in other states that treat this as a crime. However, the procedures are a little different in non-criminal cases and many different courts can hear such cases. This page focuses on criminal cases in Dane County Circuit Court. See What Counts as a prior offense?
Normally a case for OWI / DUI in Wisconsin begins with an arrest. After the arrest a person is asked to take a breath or blood test. (A urine test can be requested but never is requested.) Refusal to take the test can result is substantial penalties and can be counted in future cases as if it were a conviction. Often if a person refuses, the police will take the person to a hospital and have blood drawn without consent anyway.
There is no right to consult with a lawyer before deciding on taking this test.
See DUI / OWI (Drunk Driving) Wisconsin Ten Day Warning. It is very important that a person consult an experienced attorney as soon as possible and not wait until the Initial Appearance.
The first appearance in court is called the "Initial Appearance" or "Arraignment." In Dane County this is where you get the formal charge, called a "Criminal Complaint" and bail is set. The Criminal Complaint is a formal document signed by a police officer under oath before a prosecutor. It tells the court which crime(s) the defendant is charged with and gives enough facts to support those charges. It tells the defendant what the maximum (and minimum) penalties for the offense are. The bail is almost always a "signature bond" where you promise to pay an amount of money if you miss court or if you violate other conditions of your bond.
The court automatically enters a "not guilty" plea at this appearance.
At the Initial Appearance the prosecutor will usually know very little about the case or the defendant. At the initial appearance in Dane County the defendant (defendant's attorney) is usually given a copy of the police reports and served with a copy of a motion for "discovery" requesting information from the defense. Also included is a paper authorizing police agencies to release video or photographic evidence to the defense. When the defendant signs the bail bond, he/she is usually given a notice of the next court hearing - the Settlement Conference.
The Settlement Conference
The Settlement Conference will be set for a morning four to six weeks after the initial appearance. During settlement conferences the prosecutor actually handling the case should be in one of the conference rooms available. The defendant and attorneys are told which prosecutor is where. Plan on this taking between half an hour and three hours.
If an agreement is reached, the prosecution and defendant will appear before the judge and a plea entered. Usually the defendant will be sentenced immediately and may be required to start serving the jail sentence right away. Often even if there is an agreement, the matter will be set for another date for the plea and sentencing.
If no agreement is reached, the matter will be set for further court proceedings.
If there were things wrong with the arrest or other police or court procedures, the defense attorney may bring a request for a court order, called a motion, before the court. Both sides may ask the court for an order as to future procedures or trial rules. These motions will usually be set for a separate hearing. At that hearing there may be people testifying and other evidence introduced. Such motions are sometimes brought even if the attorney bringing them does not expect to get the order requested. This can be done for tactical reasons so long as there is a real basis for the motion. In OWI / DUI cases motions are sometimes brought attacking the validity of prior offense convictions, attacking the validity of the stop, or questioning the sufficiency of the evidence for the arrest. Suppression motions may be brought challenging the admissibility of statements or of results of a questionable search.
One or more court dates titled a "pretrial hearing" will be scheduled. Such hearings are for the defense attorney and prosecutor to bring the court up-to-date on the status of the case. They usually involve discussions of the case between the lawyers followed by a brief court appearance. The scheduling notice for a pretrial hearing will often also contain scheduling information for jury selection and jury trial dates.
Jury selection in Dane County is always done on a Monday morning. (If Monday is a legal holiday, Jury Selection for that week is done on Tuesday.) During Jury Selection both sides are allowed to ask questions of prospective jurors to assure that they can be fair. Neither side gets to pick who they want to be on the jury; instead each side can indicate some people from the panel that they do not want on the jury. In other counties, jury selection is usually done the morning of the trial. Many cases will be scheduled for jury selection in Dane County on the same day for the convenience of prospective jurors and the courts.
Trial by jury is a constitutional right for the defendant (and a statutory right for the government). At a jury trial the government must prove beyond a reasonable doubt that the defendant committed the crime(s) charged. The defendant does not have to prove anything. The defendant has the right to testify and call witnesses but is not required to do so. Evidence presented by either side is subject to cross examination (questioning) by the other side. Jurors may be permitted to ask questions. Both sides get to give a brief statement at the beginning of the trial about what they expect the evidence to show and at the end of the case about what they believe the evidence did show. The judge explains the law to the jurors before they decide the case. All of the jurors must agree on any verdict in a criminal case (guilty or not guilty). If the jury finds the defendant "not guilty" of all charges, the case is dismissed. If the jury finds the defendant "guilty" of one or more charges, the judge will be required to sentence the defendant.
If the defendant is convicted by a jury or pleads guilty, the court will find the defendant guilty and sentence him/her for the crime(s) of conviction. Sentences are given within a range between the minimum and maximum penalty prescribed by the statute. Minimum sentences are rare as are maximum sentences; both do happen. Both sides are allowed to argue for a particular sentence, but the decision on the sentence is up to the judge and is usually follows the district's judicial guidelines. Even if both sides agree on what the sentence should be, the judge decides. In all cases of third offense OWI (or higher) the defendant will be immediately taken to jail following sentencing. Jail terms are usually served with work release (Huber) and may be served on electronic monitoring. In certain third-offense OWI cases the defendant will be offered a treatment court option which will significantly reduce jail time. See DUI / OWI Treatment Court for more information about this.
Other penalties include loss of license and a requirement that the defendant install an ignition interlock device (breathalyzer) in all vehicles registered to the defendant and that the defendant not drive any motor vehicle without such a device for a period of time. Fines in OWI cases can be quite high, especially after the addition of court costs and other fees.
Whether sentencing follows a trial or is after a plea of guilty, the judge will consider not only the crime of conviction but other factors in the defendant's life. A major factor can be treatment for alcohol or drug problems before sentencing.
This page is not intended to be legal advice or substitute for legal advice. It is intended to provide general information. Legal advice can only be given with a full understanding of the actual facts of a case, generally in a face-to-face consultation. Note that there are exceptions to many of the statements made here. No one should act or refrain from acting in court based on anything stated in this web page. My office does not give legal advice to non-clients over the phone or internet. Further, the law and procedures in drunk driving cases are changing rapidly. This page reflects procedures in place in Dane County, Wisconsin, on August 31, 2012.