Wisconsin OWI law is far broader and more technical than most people realize. Many drivers are arrested even when they weren’t driving, weren’t over .08, or believed they complied with everything police asked.
Below are 35 of the most common and misunderstood OWI questions in Wisconsin, answered clearly and completely.
1. Can you get an OWI in Wisconsin if you weren’t actually driving?
Yes. Wisconsin law does not require police to see you driving. The law focuses on whether you were “operating” a vehicle, which includes being in actual physical control. If officers believe you had the ability to drive while intoxicated, that can be enough.
2. Can you get an OWI if your car was parked and turned off?
Yes. Being parked does not automatically protect you. Police look at where you were sitting, where the keys were, whether the vehicle could be driven, and whether there is evidence you drove earlier.
3. Can you refuse field sobriety tests in Wisconsin?
Yes. Field sobriety tests are voluntary. You may politely refuse without automatic penalties. These tests are subjective and designed to gather evidence against you.
4. Can police search your car during an OWI stop?
Not automatically. Police generally need consent, probable cause, or a warrant. Many OWI cases involve unlawful or overbroad searches that can be challenged.
5. What if your breathalyzer result is under .08 but you’re arrested anyway?
You can still be arrested if police claim impairment. However, cases under .08 are often strong defense cases, especially if other evidence is weak or inconsistent.
6. Can you get an OWI if you only took prescription medication?
Yes. OWI law applies to alcohol, illegal drugs, and legally prescribed medications if they allegedly impair driving. Medical explanations are often critical defenses.
7. Can you be charged if you fail a roadside breath test but pass the station test?
Yes, but conflicting results seriously undermine the prosecution’s case. Roadside tests are less reliable and often attacked in court.
8. What if the officer didn’t read the Informing the Accused form correctly?
This is a major issue. Errors, omissions, or confusion in the Informing the Accused warning can invalidate chemical test results and lead to suppression of evidence.
9. Can you get an OWI while using Tesla Autopilot or self-driving mode?
Yes. Wisconsin does not recognize consumer vehicles as driverless. You remain legally responsible even when automation is engaged.
10. What if lane assist or adaptive cruise control was on?
These features do not change OWI liability. You are still considered the driver and must be sober.
11. Can you get an OWI while sitting in the back seat of your own car?
Possibly. If police believe you recently drove or still had control, charges may follow. These cases depend heavily on evidence and timing.
12. Can police use your car’s data in an OWI case?
Yes. Vehicle data such as GPS, speed, braking, and infotainment logs can be subpoenaed and used as evidence.
13. Can dashcam footage help or hurt your defense?
Both. Dashcam video can contradict police claims—or confirm them. Reviewing footage early is critical.
14. How accurate are breathalyzers in cold Wisconsin weather?
Cold temperatures can affect equipment and testing conditions. Environmental factors are often raised as defense issues.
15. Can GERD or acid reflux cause false breathalyzer results?
Yes. GERD, acid reflux, and similar conditions can cause falsely elevated readings due to mouth alcohol.
16. How long after driving can police test your BAC?
Police may test hours later and attempt to “back-calculate” BAC. This retrograde extrapolation is frequently challenged.
17. Can mouth alcohol cause false readings?
Yes. Recent drinking, burping, vomiting, dental products, or improper observation periods can affect results.
18. What if a blood sample was mishandled or delayed?
Improper storage, contamination, or delays can compromise blood test reliability and lead to exclusion.
19. Can you challenge breathalyzer calibration and maintenance records?
Yes. Calibration logs, maintenance history, and operator certification are essential and often flawed.
20. What happens at your first OWI court appearance?
Usually a brief procedural hearing. However, what happens before this hearing often matters more to your defense.
21. How long does an OWI stay on your record in Wisconsin?
Forever. Wisconsin has no OWI look-back period.
22. Is OWI a criminal conviction in Wisconsin?
First offenses are civil violations. Second and subsequent OWIs are criminal offenses.
23. Can an OWI be expunged?
Generally no. OWIs are almost never eligible for expungement.
24. Will an OWI show up on a background check?
Yes. Employers, landlords, and licensing boards may see it.
25. Does OWI affect professional licenses?
Yes. Nurses, CDL holders, teachers, and other professionals face additional consequences.
26. Can you drive while your OWI case is pending?
Sometimes. Administrative suspensions can occur before the case is resolved.
27. What is an occupational license?
A restricted license allowing limited driving for work, school, medical care, and necessities.
28. Can you get an OWI without losing your license?
Yes, particularly in first-offense or non-driving cases.
29. What happens if you drive while revoked?
Driving while revoked is a separate offense and can carry jail time and extended revocation.
30. Do out-of-state OWIs count in Wisconsin?
Yes. Wisconsin counts prior OWIs from other states.
31. What mistakes hurt OWI defenses the most?
Talking too much, consenting to searches, and assuming guilt too early.
32. Is it better to plead guilty or fight an OWI?
Many cases are worth fighting. Early review is critical to knowing which ones.
33. When are OWI charges most likely dismissed or reduced?
When evidence is weak, procedures weren’t followed, or constitutional rights were violated.
34. What evidence hurts the prosecution most?
Video evidence, inconsistent test results, and procedural errors.
35. Why does early legal representation matter?
Early action preserves evidence, prevents mistakes, and shapes the entire case.
What to do if You've Been Arrested and Charged with OWI in Wisconsin
If you are facing OWI, DWI, DUI, BAC or PAC charges in Wisconsin, you should contact a skilled criminal defense attorney to assist in your defense as soon as possible.
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 in Madison, Hayward and across Wisconsin.
Two OWI Defense Success Stories
OWI 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 (FSTs), when, in fact, his client never submitted to the FSTs. 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 recharged.
OWI Victory: Charge Dropped
"Patrick is an amazing lawyer who was a lifeline in a case that seemed hopeless. I was charged with a 3rd OWI while inside a bar because two eyewitnesses said I had been driving erratically. I did agree to a Breathalyzer even though I didn't drink until I got to the bar. I didn't agree to the blood draw because I just thought something wasn't right about the arrest, and because I have a language processing difficulty, I really didn't understand what was going on. I was then charged with a refusal. My mother had heard of Mr. Stangl through another client of his, and we decided to contact him. He met with us right away in person and assured us that he would do his best for me, although no promises could be made. Throughout the court appearances, Mr. Stangl was always in contact not only by letter but also in person beforehand. If we called him, he would get back to us quickly. I always felt confident with him, especially since he was one of the few people who understood my disability, whereas I felt that the arresting police and the DA did not. Patrick had several plea bargains offered to him for my consideration, from losing my license forever to reckless driving. By investigating the reliability of the eyewitnesses, he was able to convince the DA to drop the OWI and charge me with inattentive driving, a misdemeanor. I still can't believe how lucky I am. With any other lawyer, I would be in jail now, facing a big fine, ignition interlock and all sorts of other difficulties. This great result only happened because Patrick never dropped the ball. He knows the law inside and out, and he fought tooth and nail for me. I am forever grateful. If you need a lawyer, Patrick Stangl is the BEST!"
Andy G.
FREE 10-Minute Consultation
If you need help to fight drunk driving charges in Madison or elsewhere in the state, 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. Click the link below to get started.
Stangl Law Offices, S.C.