Prior to  Wednesday, here is what we knew:  In Wisconsin,  a first-offense OWI is a civil citation, or "forfeiture", case.  A second-offense OWI is a criminal charge if the driving occurs within 10 years of the driving that gave rise to the first OWI conviction.  Conversely, If the second OWI occurs outside the 10 years, it is a first-offense again.  So, a person can have two "OWI 1st" charges (but never three).  We'll call the second one an "OWI1st 2nd".  

For first-offense OWI convictions, where the BAC is .15 or greater, the court must order that an interlock ignition device ("IID") be installed in any vehicle driven, owned or registered to the defendant.  Wis. Stat. § 343.301.  An IID must be ordered for all criminal second or greater OWI's .  However, what about when a person is charged with OWI 1st because the first OWI was more than 10 years ago?   That guy doesn't get the IID if the BAC was less than .15, right?  The Court of Appeals answered that question just this Wednesday, January 29th, in Village of Grafton v. Eric L. Seatz, 2013AP1414.  I am guessing Eric L. Seatz doesn't like the answer.

According to the Court of Appeals, when it comes to the IID, a first-offense OWI isn't a first offense if it isn't a real first offense.  The court wrote:

"The ten-year look-back provision in Wis. Stat. § 346.65(2)(am)2. for purposes of determining whether to charge or penalize a repeat OWI offender civilly or criminally is independent of whether a person has one or more prior OWI
convictions under Wis. Stat.§ 343.307(1) and has no effect on orders for ignition interlock devices under Wis. Stat. § 343.301. The different language of §§ 346.65(2)(am)2. and 343.301(1g)(b)2. indicates that the legislature had
different intentions for how each statute treats prior OWI convictions."  Seatz, 2013AP1414, par. 7.

Many in Wisconsin have decried the civil nature of the first-offense OWI, arguing that it's too easy on the offender and diminishes the seriousness of the offense.  The Court of Appeals has made it a tougher on the second "first-offense" driver.  Having an IID order means paying around $1,000 in equipment rental fees for each vehicle subject to the order--not to mention all the stigma involved in having one of the things in your car.  More than ever, there is reason to fight your "OWI 1st  2nd." 

Not exactly the Christmas gift we were hoping for:  On December 27, 2013, the Supreme Court of Wisconsin, in State of Wisconsin v. Bentdahl, sharply limited the discretion of Wisconsin Circuit Court judges to dismiss Implied Consent Refusal convictions.  This, of course, includes the La Crosse County Circuit Court, where I have had MANY such Refusal convictions dismissed.  

A person who is arrested for OWI/PAC must agree to supply a sample of their breath, blood or urine to their arresting officer.  Wis. Stat.  s. 343.305(9).  Implied Consent Refusals--refusal to supply such a sample--can be counted as a prior OWI/PAC conviction in Wisconsin and most other states, even when the person is later found NOT GUILTY of the actual OWI/PAC charge they were arrested for.  Wis. Stat. s. 343.307. 

Because of Bentdahl, even a person later found NOT GUILTY of the actual OWI/PAC can't ask the Judge for dismissal of the Refusal conviction.  Worse, now a person who relieves the State of the time and expense of having to prove him/her guilty of OWI/PAC can't request dismissal of the Implied Consent Refusal conviction unless they actually challenged the Refusal within 10 short days.  

Yes, there is only 10 days to challenge a Refusal charge by filing a request for a refusal hearing.  Many--including innocent people--do not meet the short deadline.  Unfortunately, I know that some people charged with Refusal are not even given the notice of their right to challenge the Refusal.  In either respect, this means that an innocent person can be unwittingly saddled with the equivalent an OWI/PAC conviction for life, with all the stigma and expense that brings.

The  Bentdahl court did not overturn State v. Brooks, 113 Wis. 2d 347, 335 N.W.2d 354 (1983), the case that first acknowledged Wisconsin Circuit Court judges' discretion to dismiss Refusal convictions after a plea to OWI/PAC.  It just limited dismissal to cases where the defendant (1) first challenged their refusal to test, and (2) pleads guilty.  However, as was the case in Bentdahl, Refusals were also frequently dismissed for defendants who did not challenge the Refusal within 10 days, pleaded no contest, and/or or were found not guilty of the actual charge of OWI/PAC.  
A person with a first Refusal conviction will be revoked twice as long as an actual OWI/PAC conviction (12 months vs. 6 months (for a first OWI less than .15 BAC)).  Pleading to the OWI/PAC would cut the revocation in half if the Refusal is dismissed.  Now, the defendant who did not challenge the Refusal charge within 10 days by filing a request for a "Refusal Hearing" will not have that benefit.  Hence, there is less incentive to plead guilty.  As mentioned, many do not file the request for a hearing in that narrow time frame.  However, clients who come to me before passage of the 10 days ALWAYS do.   

NOW MORE THAN EVER:  IF YOU ARE ISSUED A NOTICE OF INTENT TO REVOKE OPERATING PRIVILEGES FOR ALLEGEDLY REFUSING TO TEST, FILE YOUR REQUEST FOR A REFUSAL HEARING.  Call me if you need help doing that.