Can You Get an OWI in Wisconsin If You Weren’t Actually Driving?

In Wisconsin, you can be charged with OWI even if you were not actually driving at the time police made contact with you.

Many people assume you can only be charged with OWI in Wisconsin if an officer catches you actively driving down the road. Unfortunately, that assumption is wrong, and it’s one of the most common misunderstandings that leads to unexpected OWI charges.

Below, I briefly explain how and why this is the case in Wisconsin.

Wisconsin OWI Law Is About “Operating,” Not Just Driving

Wisconsin’s OWI statute (Wis. Stat. § 346.63) makes it illegal to operate a motor vehicle while under the influence of alcohol or drugs.

The key word there is operate.

Under Wisconsin law, operating a vehicle does not require:

• Driving on a roadway

• The car to be moving

• The officer to see you driving

Instead, courts focus on whether you were in actual physical control of the vehicle.

What Does “Actual Physical Control” Mean?

“Actual physical control” means you had the ability to control or cause the vehicle to move, even if you weren’t doing so at that exact moment. Factors police and courts often consider include:

• Were you seated in the driver’s seat?

• Was the engine running or capable of running?

• Were the keys or key fob inside the vehicle?

• Was the vehicle positioned to enter traffic?

• Did you admit to driving earlier?

If law enforcement believes you could have driven the vehicle while intoxicated, that can be enough for an OWI charge.

Common Situations Where People Get OWIs Without Driving

Here are real-world examples where Wisconsin drivers are often surprised to be charged:

• Sleeping in Your Car: If you're intoxicated and sleeping in the driver’s seat—even in a parked car—you may still be considered in control of the vehicle.
• Sitting in a Parked Car With the Engine On: Running the engine for heat or air conditioning can support an OWI charge, even if the car never moved.
• Pulled Over but Not Seen Driving: An officer does not need to personally observe you driving. Statements, witness reports, or circumstantial evidence may be used instead.
• Using Remote Start or Keyless Ignition: Modern vehicles complicate OWI cases. Even if the engine was not fully running, having the key fob present can still support a claim of control.

What If the Car Was Parked and Turned Off?

Being parked and turned off does not automatically protect you from an OWI charge. Police will still evaluate where you were sitting, where the keys were located, whether the vehicle could easily be driven, and whether there is evidence you recently drove.

Each case is highly fact-specific, which is why these cases are often defensible with the right legal strategy.

Why These Cases Are Often Defensible

OWI cases involving “actual physical control” are not as straightforward as cases involving observed driving. A skilled OWI defense attorney may challenge:

• Whether you truly had control of the vehicle

• Whether the officer had probable cause

• Whether statements were lawfully obtained

• Whether evidence supports recent operation

• Whether constitutional rights were violated

These details matter, and they can make the difference between a conviction and a dismissal or reduction.

Don’t Assume You’re Guilty Because You Weren’t Driving

Many people plead guilty because they believe “being in the car” automatically means they broke the law. That’s not always true.

Wisconsin OWI law is complex, especially when no actual driving occurred. Early legal guidance is critical in these cases.

Charged With OWI in Wisconsin? Get Answers Before You Decide Anything.

If you’ve been charged with OWI—even though you weren’t actually driving—do not assume the case is unwinnable.

Attorney Patrick J. Stangl has over 30 years of experience defending OWI cases across Wisconsin, including complex cases involving parked vehicles, actual physical control, and modern vehicle technology.

Attorney Patrick Stangl explains why you should never give up hope when fighting repeat DUI/OWI charges in Wisconsin:

Criminal Defense Lawyer Patrick J. Stangl has been aggressively fighting to protect the rights of drivers accused of OWI and other drunk driving charges for over 30 years. He remains committed to protecting the innocent against OWI charges across Wisconsin.

If you need help to fight drunk driving charges in Wisconsin, Attorney Pat Stangl is happy to offer you a FREE 10-minute consultation to discuss your case and explore options for your defense against OWI, DUI, DWI, PAC, BAC, or other criminal charges.

If you’re in need of a criminal defense attorney with years of experience with OWI-related cases in Wisconsin, contact Attorney Patrick Stangl today.