Drunk driving, also known as OWI, DUI, PAC or DWI, is generally two separate offenses.  It’s like a fishing lure with two hooks.  If they don’t catch you with the first hook, they will try to catch you with the second.  The first offense is operating under the influence of an intoxicant.  For this offense, the bottom line is whether your ability to operate a motor vehicle was impaired by alcohol, drugs or a combination of the two.  The prosecution may use your breath or blood test result to try to prove impairment, but a threshold is not necessary to the charge.  A police officer may conclude that you are too impaired to drive and arrest you for OWI even though you end up below the legal limit. 

The second hook for the prosecution in a drunk driving case is the charge of prohibited alcohol concentration.  For this charge, impairment is not the issue; the issue is strictly the amount of alcohol or restricted controlled substance in your system at the time of the driving.  If you are above the legal limit, it does not matter how well you handle yourself, you will face a charge of operating with a prohibited alcohol concentration.

Do I have to have a blood/breath alcohol content of .08% or more to be charged with drunk driving?

No.  In Wisconsin, what most people call "drunk driving" actually consists of two separate charges, operating while intoxicated (OWI) and operating with a prohibited alcohol concentration (PAC). To be convicted of OWI, the prosecutor must prove that you operated a motor vehicle on a public highway or other prohibited place while "under the influence" of alcohol, drugs or both. A driver is considered "under the influence" when his or her ability to operate a vehicle is "impaired" by alcohol, drugs, or both. Impairment, however, does not necessarily depend on a BAC of .08% or greater. For example, someone who has a
relatively low tolerance for alcohol may suffer impairment with a BAC of .07%.

It is important to remember that the question of impairment depends to a large extent on opinion evidence. The police officer may hold the opinion that your speech is slurred or that your balance is unsteady. And, based on this opinion, the officer may conclude that you
are "impaired." You or another witness may hold the opinion that your speech is not slurred, nor your balance unsteady. Remember, the police
officer’s opinion is just that, an opinion. The jury makes the final decision about whether there is enough evidence to conclude that you
were impaired.

The second "drunk driving" offense in Wisconsin, operating with a prohibited alcohol concentration (PAC), depends entirely on the amount of alcohol in your system (or restricted controlled susbtance) at the time you operated a motor vehicle on a public highway or other prohibited place.

Most police departments test your alcohol content by a breath or blood test. These tests, however, are not perfect. Machines malfunction, officers sometimes fail to correctly administer the test, and external factors may skew the test results. Also, the alcohol tests
only claim to measure your breath or blood alcohol concentration at the time of the test. But, alcohol in your system is always changing. The alcohol concentration in your system at the time of the test is not necessarily the same as it was at the time you were driving. You cannot be convicted of a PAC offense unless the prosecutor can prove that you
had a prohibited alcohol concentration or restricted controlled substance in your system at the time you operated a motor vehicle in a prohibited place.

Do I need to "drive" a moving vehicle to be charged with drunk driving?

No.  Wisconsin law prohibits "operating" a motor vehicle while intoxicated or with a prohibited alcohol concentration. "Operate"
generally means to manipulate any of the controls necessary to put the vehicle in motion. So, turning the key in the ignition, even if the car does not move, amounts to operation under Wisconsin’s drunk driving law. However, the question of operation gets tricky, especially if a
witness did not observe the vehicle in motion or observe you manipulate the vehicle’s controls. If you have any question about whether your
conduct amounts to "operation" as defined by the law, contact attorney Robert T. Ruth.


Can I get charged with drunk driving in a parking lot?

Yes, however, only in certain parking lots. If you were stopped for drunk driving in any area other than on a public road, you should
contact one of our attorneys to review your situation to determine if you were stopped in a prohibited area.


Can the police stop my car for any reason?

No.  In most cases, to stop your car, the police either need a warrant, or they must have a reasonable suspicion that you committed or
are in the process of committing a criminal or traffic offense. And, in most cases, if they don’t have a warrant or reasonable suspicion, any evidence that was obtained as a result of the illegal stop cannot be used against you. So, even if you were operating under the influence,
if the stop of your vehicle was illegal, your case may be dismissed.

Since every case depends on unique facts, it is impractical to list all of the possible reasons why the stop of a vehicle may be illegal.
However, if you were charged with drunk driving after the police stopped your vehicle, you should contact attorney Robert T. Ruth to investigate your specific situation.



Can the police require a breath or blood test for any reason?

No.  Under the implied consent law, to demand a breath or blood test, a police officer must have probable cause to believe that you
violated one or more driving related offenses and must have arrested you for that offense. In some cases, the police may also force a breath or blood test if they have probable cause to believe that there is evidence of a crime in your blood or breath. However, the area of compelling breath or blood tests is complicated and fact specific. If you submitted to a breath or blood test, or refused to do so, you should contact one of our lawyers to discuss your specific situation.



If I was previously convicted of drunk driving, will a new offense for
drunk driving count as a second offense?

Not necessarily. Beginning January 1, 1999, a second offense is generally defined as any offense that occurs within 10 years of a
previous offense. The 10 years is calculated from the date that the offenses occurred, not the dates of conviction. No offense that
occurred before January 1, 1988 counts as a prior offense.

Additionally, some unconstitutionally obtained convictions do not count as prior drunk driving offenses. So, before you accept a previous OWI conviction as a prior offense, you should have the specific facts of the previous conviction reviewed by a qualified attorney.

If you face a drunk driving, OWI, DWI, DUI, PAC charge in Wisconsin, contact DUI defense attorney Robert T. Ruth at 608-257-2540 for a free consultation.