The question arrives in almost the same words every time: this is my third one — is it a felony?
Under current Wisconsin law, no. A third offense of operating while intoxicated is punished under Wis. Stat. § 346.65 (2) (am) 3. as a misdemeanor. The felony line sits one notch further along, at the fourth offense. That is the honest answer, and it is worth giving plainly, because a great deal of what circulates on the subject is wrong.
It is also, on close inspection, cold comfort. The misdemeanor label conceals a set of consequences that behave very little like a misdemeanor, and it obscures the single provision that does the most damage in these cases — a counting rule with no expiration date.
What the statute actually imposes
For a third offense, § 346.65 (2) (am) 3. requires a fine of not less than $600 nor more than $2,000, and imprisonment of not less than 45 days nor more than one year in the county jail. The forty-five days is a mandatory minimum. It is not a maximum a court may work down from; it is a floor the court must reach.
The one-year ceiling is what keeps the offense a misdemeanor, and it is also why the sentence is served in a county jail rather than a state prison.
The felony grade begins at the next tier. Under § 346.65 (2) (am) 4., a fourth offense is a Class H felony carrying a fine of not less than $600 and imprisonment of not less than 60 days. The tiers climb from there — Class G, then Class F, then Class E — as the count rises. Our explanation of what the misdemeanor-felony line actually changes in Wisconsin covers why that boundary matters well beyond the sentence itself.
The counting rule is where most people are caught out
This is the provision to understand, and it is almost always the reason a person is facing a third offense when they believed they were facing a second.
Wisconsin’s second-offense tier, § 346.65 (2) (am) 2., counts prior offenses within a 10-year period. That ten-year window is real, it is well known, and it is the source of the widespread belief that old OWIs eventually stop counting.
They do not. The ten-year qualifier appears in the second-offense tier and nowhere above it. Subdivision 3. — the third-offense tier — counts prior convictions, suspensions, and revocations under § 343.307 (1) with no time limitation whatsoever. A 1994 conviction counts. A 1987 conviction counts. Once a person is at two, everything in the record is live again, permanently.
The practical shape of this is worth stating directly. Someone with two old offenses from decades ago may well have been treated as a first offender the second time around, because the older one had fallen outside the ten-year window for that tier. The moment a third arrives, the window is gone, and all three count.
What goes into the count
Section 343.307 (1) is a list, and it is broader than most people expect. It counts prior convictions under § 346.63 (1) and under local ordinances in conformity with it; convictions under the law of a federally recognized tribe or band in this state in conformity with § 346.63 (1); convictions under § 346.63 (2) and § 940.25, and under § 940.09 where a vehicle was involved; out-of-state convictions for equivalent offenses; out-of-state operating-privilege suspensions or revocations arising from a refusal to submit to chemical testing; and revocations under Wisconsin’s own refusal statute, § 343.305 (10).
Two features of that list deserve emphasis. First, it reaches beyond Wisconsin — an Illinois or Minnesota conviction is not a foreign matter here. Second, it counts refusals, not merely convictions. A person who declined the test years ago and lost their license for it may carry that revocation into the count as an offense, even though there was no conviction. We covered the mechanics of that in our discussion of refusing a breath or blood test under Wisconsin’s implied-consent law.
Two limits on the count that matter
The same-incident rule. Suspensions, revocations, and convictions arising out of the same incident or occurrence are counted as one. This is not a small point. A single traffic stop can generate a conviction and a refusal revocation; the statute does not permit one night to become two offenses.
Refusal revocations after Forrett. In State v. Forrett, 2022 WI 37, 401 Wis. 2d 678, the Wisconsin Supreme Court held that, following Birchfield and Dalton, the graduated-penalty scheme is unconstitutional to the extent it counts a prior revocation for refusing a warrantless blood draw as an offense for the purpose of increasing the criminal penalty. Where a prior revocation in the record is of that kind, whether it may be counted is a live question rather than a settled one — and the difference between a second and a third offense can turn on it.
One more mechanical detail, from § 346.65 (2c): the time period is measured from the dates of the refusals or violations that produced the revocations or convictions, not from the dates of conviction. Cases that were charged close together but resolved years apart do not sort the way people assume.
What raises the fine, and what does not
Section 346.65 (2) (g) multiplies the fine range according to the alcohol concentration proved. At 0.17 to 0.199 the minimum and maximum fines are doubled; at 0.20 to 0.249 they are tripled; at 0.25 or above they are quadrupled.
Note precisely what that provision does and does not reach. It multiplies fines. It does not extend the jail term, and it does not change the grade of the offense. A very high test result makes a third offense considerably more expensive; it does not make it a felony.
The county treatment option
Section 346.65 (2) (cm) permits a county to offer a reduced minimum period of imprisonment for the successful completion of a period of probation that includes alcohol and other drug treatment. Where a county has opted in, the fine remains what § 346.65 (2) (am) 3. requires, the imprisonment minimum remains 45 days — but on successful completion of that probation, the minimum drops to 14 days.
Two conditions govern. The county must have opted to offer it, and the probation must be completed successfully. Whether the option exists in the county where the case is pending is one of the first things worth finding out, because it is the largest single variable in the custody exposure.
The license consequences outlast the sentence
Under § 343.30 (1q) (b) 4., a court must revoke the operating privilege for not less than two years and not more than three years where the count is three or more. Eligibility for an occupational license opens after the first 45 days of the revocation period — but only if the driver has completed the assessment and is complying with the driver safety plan.
That assessment is not optional. Section 343.30 (1q) (c) 1. requires the court to order an assessment by an approved treatment facility and the development of a driver safety plan, and it requires the court to warn the driver that noncompliance will itself result in revocation. People sometimes treat the assessment as an administrative afterthought and then find their occupational license unreachable because of it.
An ignition interlock order is also in play. Section 343.301 (1g) (a) 2. requires the court to enter one where the driver’s alcohol concentration was 0.15 or more, or where the driver has one or more prior countable convictions, suspensions, or revocations — which, by the third offense, is necessarily the case. Under § 343.301 (2m) (a), the restriction begins on the date the order issues and runs for not less than one year after the department issues a license.
Then there is the provision that surprises people most, and it is easy to miss because it lives in the definitions chapter. Under § 340.01 (46m) (c), for a person with three or more prior countable offenses — or for anyone subject to an ignition interlock order under § 343.301 — the prohibited alcohol concentration is not 0.08. It is more than 0.02. That threshold is permanent as to that driver, and it is low enough that a glass of wine at dinner can reach it. Our post on why an OWI arrest produces two separate charges explains how the PAC count operates alongside the impairment count.
One caution on all of this: 2025 Wis. Act 210 amends both § 343.30 (1q) and § 343.301, with an effective date keyed to a future Department of Transportation notice published in the Wisconsin Administrative Register. The provisions described above are the ones in force now. Anyone reading this at a distance from its publication date should confirm whether that act has taken effect.
Why the misdemeanor label misleads
A third offense is a misdemeanor in grade. It carries a mandatory jail minimum, a fine that can be quadrupled, a two-to-three-year revocation, an interlock requirement, a mandatory treatment assessment, and a permanent 0.02 limit on the driver’s own ability to drive lawfully after a single drink.
And it sets the next one up. A fourth offense is a Class H felony, and the count that produces it has no time limit. For a person at three, the distance to a felony is one incident, however many years from now.
Where these cases are actually contested
Nothing in a graduated-penalty scheme is self-executing. The count has to be proved, and the underlying offense has to be proved.
On the count: the record has to be right. Out-of-state entries have to be genuinely equivalent to a Wisconsin countable offense. Same-incident entries have to be collapsed into one. Refusal revocations have to survive Forrett. A count that is wrong by one is the difference between a felony and a misdemeanor, or between a mandatory 45 days and a mandatory five.
On the offense itself: the questions are the ordinary ones, and they do not become less available because the number is three. Was there reasonable suspicion for the stop and probable cause for the arrest? What do the field sobriety tests actually establish here? Was the chemical test properly administered and the sample properly handled? Our posts on the first offense and the second offense walk through those questions at the earlier tiers; they apply with more force, not less, when the exposure is jail.
Talk to a New Berlin OWI defense lawyer
A third-offense case is won or lost on details — the accuracy of the prior record, the constitutionality of what is in it, the lawfulness of the stop, the integrity of the test, and whether the county offers the treatment option that cuts the mandatory minimum. None of that is visible from the citation in your hand.
Carson Law Office defends OWI charges and other criminal matters for clients throughout New Berlin, Waukesha County, Milwaukee, West Allis, Wauwatosa, and the surrounding communities. If you are facing a third offense, call (262) 860-8932 or contact us here, and we will start with the one thing that decides the most: whether the count against you is correct.
This article provides general information about Wisconsin law and is not legal advice. Reading it does not create an attorney-client relationship. Penalty provisions and license rules are amended periodically, and 2025 Wis. Act 210 contains amendments to several of the provisions discussed above that take effect on a future date; for advice about your own situation, speak with a licensed Wisconsin attorney.