An OWI charge is the one legal problem that arrives without warning to people who have never had a legal problem before. Most of the clients this office sees on a first offense have no record of any kind. They were driving home from something ordinary, and the whole apparatus of the state arrived at the driver’s window at once.
What follows is what Wisconsin law actually provides, with the statutes named so you can check any of it yourself. It is written for the person holding the citation, not for another lawyer.
Wisconsin is not like the other states
In Wisconsin a first-offense OWI is not a crime. It is a civil forfeiture, and the penalty under Wis. Stat. § 346.65(2)(am)1. is a forfeiture of not less than $150 nor more than $300, before the surcharges and costs that in practice multiply that figure several times over. No jail. No criminal conviction. It is prosecuted in municipal court in most cases, and the whole thing can be made to feel like an expensive traffic ticket.
That impression is the most expensive mistake available to a first offender, because the forfeiture is not the consequence. The consequences are the driver’s license revocation, the alcohol assessment and the driver safety plan that follows it, the ignition interlock order where one applies, the insurance position for the next several years, and the permanent fact that a second offense will now be measured against a first.
What the State has to prove
Wisconsin charges most drivers with two counts at once, under Wis. Stat. § 346.63(1): operating while under the influence, at (a), and operating with a prohibited alcohol concentration, at (b). They are different allegations. The first is about impairment and can be proved by observation. The second is a number, and it rises or falls on whether the testing was done properly. A driver is typically cited for both; only one conviction may be entered.
Each element is a place where the case can be contested, and the questions are not technicalities in the dismissive sense — they are the requirements the State agreed to meet:
- Was there reasonable suspicion for the stop in the first place?
- Were the standardized field sobriety tests administered the way the standard requires, or approximately?
- Was the breath instrument in proper working order and the operator certified?
- Was the blood draw lawful, and was the chain of custody intact?
- Was there probable cause for the arrest at the moment it was made, on what the officer actually knew then?
On blood draws in particular the law has moved considerably. Since Missouri v. McNeely, 569 U.S. 141 (2013), the natural dissipation of alcohol in the bloodstream is no longer by itself an emergency justifying a warrantless draw; the Wisconsin Supreme Court accepted that in State v. Kennedy, 2014 WI 132, holding that exigency is decided case by case on the totality of the circumstances. Whether a warrant was required in your case is a real question, not a formality.
How offenses are counted — the part almost everyone gets wrong
Wisconsin’s penalties escalate with the number of prior offenses, and the counting rule is not what most people assume. Under Wis. Stat. § 346.65(2)(am)2., the ten-year lookback applies only to the second-offense determination. From the third offense onward the statute counts convictions, suspensions and revocations under § 343.307(1) across a person’s lifetime, with no window at all.
The practical effect: a driver with one OWI from fifteen years ago who is arrested again is generally treated as a first offender. That same driver, arrested a third time, has both priors counted — the old one included. People routinely learn this in the worst possible way.
The ladder itself, from the statute:
- First — civil forfeiture, $150 to $300. § 346.65(2)(am)1.
- Second (prior within ten years) — criminal. Fine $350 to $1,100, and imprisonment of not less than five days nor more than six months. § 346.65(2)(am)2.
- Third — fine $600 to $2,000, and imprisonment of not less than forty-five days nor more than one year. § 346.65(2)(am)3.
- Fourth — Class H felony, fine of at least $600, imprisonment of at least sixty days. § 346.65(2)(am)4.
- Fifth or sixth — Class G felony, with a bifurcated sentence and confinement of at least one year and six months, which the court may reduce only on stated reasons. § 346.65(2)(am)5.
- Seventh, eighth or ninth — Class F felony, confinement of at least three years. § 346.65(2)(am)6.
- Tenth or more — Class E felony, confinement of at least four years. § 346.65(2)(am)7.
Some counties offer a reduced minimum period of confinement on a second offense for completing a probation period that includes alcohol and drug treatment, under § 346.65(2)(bm). Whether that is available depends on the county your case is in — which is one of several reasons venue matters.
When a first offense is not a first offense
Certain facts move a case out of the forfeiture category entirely. A passenger under sixteen in the vehicle changes the penalty structure under § 346.65(2)(f). Causing injury is charged under § 346.63(2). Causing great bodily harm or death moves the matter to §§ 940.25 and 940.09, which are serious felonies and a different kind of case altogether. If any of these is present, nothing on this page about forfeitures applies to you and the conversation needs to happen immediately.
A defense that most drivers are never told about
If any of the prior offenses being counted against you is a revocation for refusing a warrantless blood draw, that prior may not be usable. In State v. Forrett, 2022 WI 37, the Wisconsin Supreme Court held that Wisconsin’s graduated-penalty scheme is unconstitutional to the extent it counts prior refusal revocations as offenses for the purpose of increasing a criminal penalty. A defendant facing a fourth offense built partly on an old refusal may in fact be facing a third. That is the difference between a felony and a misdemeanor, and it turns on a case decided in 2022 that a great deal of published material has not caught up with.
Refusal, and the ten-day clock
Wisconsin’s implied consent law is at Wis. Stat. § 343.305. If you refused testing, the officer will have served a Notice of Intent to Revoke, and you have ten days from the date of that notice to request a refusal hearing in writing at the court named on it. Miss it and the right is waived and the revocation simply proceeds.
Ten days is the shortest deadline in the whole case and the one most often lost, because it runs while a person is still absorbing what has happened and has not yet spoken to a lawyer. If you refused, this is the reason to call today rather than on the court date.
It is also worth knowing what refusal does not do. Under State v. Lemberger, 2017 WI 39, there is no constitutional or statutory right to refuse a breath test after a lawful arrest, and the State may comment on the refusal at trial. Refusing is not a way of having no evidence; it is a way of having different evidence, plus a revocation.
The license is usually the real problem
For most clients the driving privilege matters more than the fine, because it is the thing that reaches work, children and everything else. Several clocks run at once here, and they do not wait for your court date:
- Administrative suspension under § 343.305 begins independently of the prosecution.
- An occupational license has its own application and its own timing, and the eligibility rules differ depending on whether the case involves a refusal.
- An ignition interlock order under § 343.301 attaches in defined circumstances — including a first offense with a sufficiently high alcohol concentration, and refusal cases — and applies to each vehicle you own or operate.
A driver who waits for the court date before dealing with the license has generally already lost weeks that cannot be recovered. This is the single most common avoidable error in a first-offense case.
Where your case will be heard
First-offense and ordinance-level matters are generally heard in the municipal court of the community that issued the citation; criminal OWI matters go to circuit court in the county. Both matter to how a case is handled:
Milwaukee County · Waukesha County · Racine County · Kenosha County · Washington County · Ozaukee County
What this office does
Attorney Christopher S. Carson has practiced criminal defense in southeastern Wisconsin for thirty-four years, from the office at 15350 W. National Ave., Suite 101 in New Berlin. OWI work here covers first offenses through felony repeats, refusal hearings, license and occupational-license questions, suppression motions on the stop, the arrest and the testing, and trial where a case warrants it.
No lawyer can promise you a result, and this page does not. What can be said is that the questions worth asking in an OWI case take time to develop, and that they are almost never asked by a defendant who resolves the matter at the first appearance to be done with it.
Talk to a lawyer before the first court date
The first consultation costs nothing. If you refused a test, call now rather than later — the ten-day clock is already running.
Call (262) 860-8932 or use the contact page.
Related reading: Wisconsin OWI first offense: penalties, process and your options · Criminal defense practice
This page is general information about Wisconsin law, not legal advice about your situation, and reading it does not create an attorney-client relationship. Statutes and case law change; the citations above were verified against the Wisconsin Statutes and the Wisconsin court reports on July 28, 2026.