In the spring of 2016, the state of Wisconsin stepped up its fight against drunk and impaired drivers when Governor Scott Walker signed Senate Bill 455 into law, making a 4th conviction of operating while under the influence of an intoxicant (OWI) an automatic felony and increasing penalties for other such repeat offenses, including fifth and sixth OWI offenses.
Later, In 2018, Governor Walker enacted an additional new law for those convicted of a OWI 4th offense or higher. This is 2017 Senate Bill 135, which became 2017 Wisconsin Act 172.
If you are facing your fifth or sixth charge of driving under the influence of an intoxicant (DUI) in Wisconsin, you need to have a thorough understanding of the potential penalties you are now facing under this new law, including increased fines and/or extended prison sentences.
This article will explain the new classification for fifth and sixth offense DUI convictions in Wisconsin, including both the new minimum penalties and maximum penalties you now risk if you are found guilty. You will also be given some guidance in starting your DUI defense against these repeat DUI charges.
If you have been stopped for suspicion of drunk driving in Wisconsin, read the following articles by Stangl Law to learn more about your rights:
- Checklist: What to do if You're Pulled Over for Drunk Driving in Wisconsin
- What is Implied Consent in Wisconsin?
- Do Police Have to Read Me Miranda Rights in Wisconsin
Wisconsin's New Classification for 5th and 6th OWI
Before April 25, 2016, a 5th drunk driving conviction or even a 6th drunk driving conviction would have been considered a Class H felony in Wisconsin.
- Since recent changes to Wisconsin's drunk driving law, both a 5th DUI and 6th DUI conviction are now Class G felonies and follow those Wisconsin sentencing guidelines. With this new classification, both the associated, possible fines and prison sentences have increased.
“On April 25th, 2016, Governor Walker signed a bill increasing penalties for 5th and 6th OWI offenses in Wisconsin. They have been elevated to a Class G felony, which includes a maximum penalty of a $25,000 fine and ten years in prison or both. There’s also a mandatory, minimum penalty, which means the absolute minimum you can get is six months in jail and a $600 fine, plus loss of license and installation of ignition interlock device and other requirements.” — Attorney Pat Stangl
Update: OWI 5th/6th Presumptive Prison Sentence
On March 1, 2020, Wisconsin Act 106 took effect, which sets forth a presumptive prison sentence for a 5th/6th OWI-PAC offense upon conviction. This presumptive prison sentence means that unless the court makes specific findings, it must impose at least 1 year, 6 months initial confinement in the Wisconsin prison system. Wisconsin has a bifurcated, or two-part, prison sentencing structure.
One part is confinement, and the other part of the sentence is extended supervision which means supervision through the Department of Corrections, akin to probationary supervision. Any prison sentence imposed in Wisconsin must have a term of initial confinement and a term of extended supervision. Section 346.65 Wis. Stats. relates to the
bifurcated prison sentence in a 5th or 6th offense and states as follows:
“The court shall impose a bifurcated sentence under s. 973.01, and the confinement portion of the bifurcated sentence imposed on the person shall be not less than one year 6 months. The court may impose a sentence that is less than one year 6 months if the court finds that the best interest of the community will be served and the public will not be harmed and if the court places its reasons on the record.”
Different trial courts throughout the State have interpreted this language differently. While the second sentence states that the “court may impose a term of confinement that is less than one year and 6 months,” many trial courts in Wisconsin believe it does not provide any discretion or decision making authority to allow any other sentence other than a term of initial confinement of not less than 1 year, 6 months.
Some trial courts interpret that portion of the statute to mean they can impose a prison sentence less than 1 year, 6 months, but must impose a term of initial confinement of at least 1 year in prison. Still, other trial courts interpret the plain language of the statute to provide the court with discretion, if specific findings are made that a term of initial confinement would serve the best interests of the community and if the public is not harmed.
From the effective date of the Act, March 1, 2020, every Dane County judge who has
sentenced a defendant on an OWI 5th/6th has imposed a term of initial confinement in prison.
That is until Attorney Stangl, and the prosecutor, in two cases, convinced the court that the statute did indeed provide it with discretion to impose a term of initial confinement in prison, stay that sentence and place the defendant on probation.
Attorney Stangl’s clients were not sent to prison. The issue of whether the trial court has discretion, under the right circumstances, to impose and stay a prison sentence and place the defendant on probation will likely be decided by the Wisconsin Supreme Court. This issue is currently in the Wisconsin Court of Appeals, and the decision is certain to be an important one.
For over 30 years, Attorney Patrick Stangl and Stangl Law Offices, S.C. has provided, and
continues to provide, cutting-edge legal defense for drunk driving (OWI-PAC) and criminal
matters throughout the State of Wisconsin and has successfully defended hundreds of OWI and criminal cases.
New Fines for 5th and 6th Offense OWI
If you are convicted of a 5th offense OWI or 6th offense OWI in Wisconsin, you risk paying higher fines than before and/or serving longer terms of imprisonment, in addition to loss of license, installation of an ignition interlock system and other penalties.
Since Gov. Walker signed new legislation into law, it could now cost you more if you are convicted of a fifth or sixth OWI, DWI, DUI, BAC, or PAC offense in Wisconsin.
While the minimum fine amount you will have to pay remains the same as before, the maximum fine you may be required to pay has more than doubled.
Here are the new fine limits for 5th and 6th offense OWI under the new law:
- Minimum, mandatory fine: Not be less than $600 (same as before)
- Maximum fine amount: $25,000 (up from $10,000)
If you are facing your 5th OWI charge or any other repeat drunk driving charge and are concerned you can't pay your fine, you should contact a proven OWI defense lawyer to help you fight your OWI charges.
Longer Prison Sentences for 5th and 6th Drunk Driving Convictions
While 5th and 6th convictions for operating under the influence of an intoxicant were still considered a Class H felony, imprisonment sentences ranged from 6 months to 6 years. Now, as a class G felony, both fifth and sixth DUI offenses in Wisconsin carry the potential of much longer prison sentences.
If you are convicted of fifth OWI or sixth OWI in Wisconsin, you now face the following range of prison terms:
- The minimum, mandatory prison sentence is now 1 year and 6 months unless the court rules otherwise (in effect since March 1, 2020)
- The maximum prison sentence for 5th and 6th OWI is now up to 10 years
As with previous drunk driving convictions, you could have to pay fines, serve a prison sentence or both.
If you are facing any repeat drunk or impaired driving charges in Wisconsin and want to do what you can to avoid a prison sentence, you should consult a successful OWI attorney to explore your options.
Fighting 5th and 6th OWI in Wisconsin
With over 32 years of experience helping clients fight OWI charges in Wisconsin, Stangl Law understands how disheartening it can be when you get stopped for drunk driving again after previous, multiple convictions—especially if you just finished your prison sentence for a previous offense.
But do not lose hope.
With the right attorney in your corner, there is a chance of having your charges reduced or even dismissed.
If you are ready to reach beyond the public defender and fight for your freedom against drunk driving charges in Wisconsin, contact a proven and aggressive OWI attorney to lead your defense.
OWI Defense Success Story
Case Victory: Three Consecutive OWI/PAC 5th/6th Victories in One Month
Attorney Stangl of Stangl Law Offices, S.C. achieved three (3) back-to-back OWI 5th/6th victories within a one-month period in May-June 2023 thereby saving his clients from mandatory prison sentences. In State v. Shirikian, 2023 WI App. 13 the Court of Appeals held that the sentencing language for a 5th/6th OWI/PAC offense requires the sentencing court to impose a mandatory prison sentence upon conviction. Even if the sentencing court wanted to impose a non-prison sentence, they do not have the discretion or authority to do so under the current penalty structure for the offense and this decision.
In the first case Attorney Stangl successfully argued that one of his client’s prior convictions could not be counted because he was not properly advised of his right to counsel in a previous case and that the record did not demonstrate a free and voluntary waiver of his 6th amendment right to counsel. After investigating and researching the issue, Attorney Stangl brought a motion challenging the uncounseled conviction and after an evidentiary hearing the trial court agreed that the prior conviction could not be counted, thereby reducing the 5th/6th offense to non-mandatory prison charges.
Approximately 2 weeks later, in a different case, Attorney Stangl previously argued to the court that the arresting officer did not have a sufficient legal reason or probable cause to arrest his client on a 5th/6th OWI/PAC. After the evidentiary hearing and briefing by the parties the court issued a very thorough and analytical oral decision granting the defendant’s Motion to Dismiss and the case against his client was dismissed.
Within two weeks after the 2nd consecutive OWI/PAC 5th/6th victory Attorney Stangl secured his 3rd consecutive OWI/PAC 5th/6th victory within (1) one month with the dismissal by the State of charges during a preliminary hearing. At the preliminary hearing it was clear that the arresting officer testified falsely about the alleged events including his client’s performance on the field sobriety test (FST’s) when in fact his client never submitted to the FST’s. Once the State realized the major problem with the officer’s perjured testimony it moved for immediate dismissal of all the charges. His client will not be re-charged.
FREE 10-Minute Consultation
Madison OWI Attorney, Pat Stangl, has a long record of success helping clients fight repeat drunk driving charges and is pleased to offer at no obligation, a FREE 10-minute consultation to discuss your case. You owe it to yourself to reach out today.