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By Dave Umhoefer August 25, 2013

Alberta Darling says Wisconsin’s neighbors make a felony of second-offense drunken-driving

Whenever state officials debate tougher penalties for drunken driving, critics raise concerns about the high cost of additional jail time for offenders.

State Sen. Alberta Darling, R-River Hills, the co-leader of the latest get-tough push, recently confronted that critique head-on while arguing to make third-offense drunken-driving a felony in Wisconsin.

"We can’t just say, ‘It costs too much,’" Darling said in testimony before an Assembly committee Aug. 15, 2013. "What does that say to the victims and the victims’ families, that it costs too much to make a third do-over a felony? Why does it have to be a fourth offense as a felony?"

Then she made a geographical appeal, twice saying during the hearing that Wisconsin is "way out of line" with some Midwestern neighbors.

"The states surrounding us, Illinois, Iowa and Indiana, have the second offense as a felony," Darling said. "That tells me that that is a reasonable public policy, that other states that are like-minded, that are Midwesterners with similar values, feel that’s what is appropriate. To me that counts. We are way out of line, that you get three do-overs."

It’s well known that Wisconsin is the only state in which first-offense drunken driving is not charged as a crime; it’s treated as a civil matter featuring stiff money forfeitures.

In fact, the second is still a civil forfeiture if the new offense is more than 10 years after the first, though it’s a criminal misdemeanor if it’s within the decade.

But we wondered if the gap between the Badger State and our close neighbors on felony OWI is as stark as Darling described.

So we compared Wisconsin’s law to that in the three states Darling mentioned, plus border states Minnesota and Michigan. Darling did not explicitly mention them, but they meet her definition of "surrounding us" (especially compared to Indiana, which doesn’t touch Wisconsin).

We’ll confine our review to incidents that involve no aggravating factors such as causing injury or having children in the car.

Here’s what we found:

Wisconsin: The fourth offense here is a felony that carries a prison term of six months to six years -- but only if a previous offense was within the last five years. Otherwise, that fourth offense is a criminal misdemeanor with a 60 day to 1 year term, state penalty information shows.

The third offense is now a criminal misdemeanor. The bill that Darling and Rep. Jim Ott, R-Mequon, have introduced with 13 co-sponsors would change that third offense to a Class H felony with a minimum of 45 days of imprisonment.

And the bill would make fourth offense OWI a felony regardless of the timing of prior convictions. Much stiffer sentences would apply if the fourth is within five years of a prior incident.

Iowa: Drunken driving becomes a felony quicker than under current Wisconsin law, but upon the third offense, not the second as Darling said. The first and second offenses are both criminal misdemeanors -- an aggravated one in the case of second.

Illinois: As in Iowa, it’s the third offense that is a felony. The first two offenses are criminal misdemeanors.

Michigan: The same as Iowa and Illinois -- third offense is a felony in Michigan.

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Indiana: The second offense is a felony if it’s within 5 years of the prior conviction. If the time gap is wider, it gets charged as a misdemeanor -- and that holds true even if it’s a third or fourth offense or more.

Minnesota: As in Wisconsin, drunken driving without any aggravating factors is not charged as a crime until the fourth offense. Minnesota sweeps in offenses from the prior 10 years, though, compared with Wisconsin’s five.

In sum, four out of our five closest neighbors clearly make drunken driving a felony faster than does Wisconsin. Minnesota, by contrast, is much like Wisconsin on this score.

So "out of line" clearly would apply. But "way" out of line?

It’s a bit of a subjective phrase, but Darling defined it in a specific way -- that the others make drunken driving a felony on second offense.

By that measure, Darling was wrong -- with one exception.

Among the surrounding states, only in Indiana is OWI a felony at second offense, and only if the offense is within five years of the first episode.

Bob Delaporte, a Darling aide, told us Darling misspoke in saying some of Wisconsin’s neighboring states make it a felony at second offense.

Before we close, a disclaimer.

This analysis was confined to a simple look at when a felony classification kicks in. We did not try to sort out here the many complexities involved in determining whether one state’s law is truly "tougher" or "weaker" when factors such as plea bargaining and sentencing variations are considered.

Still, a felony conviction undeniably packs a special punch, in terms of the loss of rights and stigma.

"A felony is such a career killer," said Donald Ramsell, an Illinois attorney and national expert on drunken driving penalties.

Nationally, about half the states mirror Wisconsin’s current approach or are more lenient in terms of when -- or if -- a felony charge enters the picture, various state surveys show.

Our rating

Darling said Wisconsin’s drunken-driving penalties are "way out of line" with "states surrounding us," which "have the second offense as a felony."

In contrast to Wisconsin, where fourth offense can be a felony, four out of five of the state’s closest neighbors make it a felony faster than Wisconsin.

But only one does so at the second offense as Darling said. Three put the threshold at third offense, and another puts it at fourth, as in Wisconsin.

There is a gap between Wisconsin and neighboring states, so there’s an element of truth here, but for the most part that gap is not as wide as Darling said.

We rate her claim Mostly False.

Our Sources

Wisconsin Eye, video archive, Assembly Judiciary Committee hearing on OWI bills, Aug. 15, 2013

Interview with Bob Delaporte, aide to Sen. Alberta Darling,

Interview with Brenda Glahn, assistant general counsel, Illinois secretary of state’s office, Aug. 16, 2013

Interview with Bruce Gordon, director of communications, Minnesota Department of Public Safety, Aug. 19, 2013

Interview with Mark Lowe, director of the Iowa DOT’s Motor Vehicle Division, Aug. 16, 2013

Interview with Paul Nilsen, assistant general counsel. Wisconsin Department of Transportation, Aug. 19, 2013

Milwaukee Journal Sentinel, "Lawmakers consider tougher measures for drunken drivers," July 3, 2012

Senate Bill 60, text and history

National Conference of State Legislatures, Criminal Status of State Drunk Driving Laws, from 2007 and 2011 research

Mothers Against Drunk Driving, DUI Felony Laws, revised June 2013

Wisconsin DOT, "OWI and related alcohol and drug penalties," (updated Sept. 1, 2012)

Wisconsin Legislative Fiscal Bureau, Intoxicated Driver Laws, Informational Paper 58, January 2013

Milwaukee Journal Sentinel, "Wasted in Wisconsin, How the States Stack Up on Drinking," October 19, 2008

Michigan Department of State, website, "Substance Abuse and Driving," accessed Aug. 20, 2013

Interview with Fred Woodhams, spokesman, Michigan Department of State, Aug. 20, 2013

Interview with Josh Gillespie, executive director of communications, Indiana Bureau of Motor Vehicles, Aug. 16, 2013

Interview with Jess Paul III, defense attorney, founding Member of the National College for DUI Defense, Indianapolis, IN, Aug. 16, 2013

Interview with Donald Ramsell, defense attorney, DUI expert, Wheaton, IL, Aug. 16, 2013

Interview with Dave Druker, spokesman, Illinois Secretary of State, Aug.16, 2013

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Alberta Darling says Wisconsin’s neighbors make a felony of second-offense drunken-driving

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