A recent editorial in the Kenosha News indicated that “It’s time to support efforts to crack down on first-time drunken driving,” in response to a proposal by state Sen. Alberta Darling and Rep. Jim Ott, both Republicans, to make a first-time Operating While Intoxicated/Impaired offense in Wisconsin a misdemeanor punishable by up to $500 in fines and 30 days in jail.
Gov. Tony Evers, a Democrat, weighed in, saying he wants to criminalize first-offense OWIs as a deterrent.
Currently the first OWI in Wisconsin is a civil forfeiture … a ticket … with a fine of $150 to $300 and no jail time.
Criminalizing the first offense would make Wisconsin look tougher on OWIs, but is it, really? Currently the fine is $150 to $300. Under the proposed law it would be up to $500. So it could be a fine of zero dollars. Currently there is no jail time. Under the proposed law it would be up to 30 days … which still means it could be zero days.
And that’s the rub: The law isn’t necessarily tougher on the offenders, but it would be tougher on the system.
An unintended consequence of criminalizing the first OWI is that the courts will be inundated with people fighting that first offense, an offense for which today they mostly just pay the ticket and pay their consequences; the system will be inundated with plea bargaining to avoid the consequences the law intends for offenders to face.
A lot of heat is being generated by substance-impaired drivers and the perception that Wisconsin is too lenient in OWI cases. The numbers say otherwise. While Wisconsin’s penalty for a first offense is a civil forfeiture instead of a crime, the law makes it easier to convict first-time offenders — roughly 94 percent are convicted — and get them services in order to prevent a second offense.
Wisconsin’s recidivism rate is 24 percent (mostly males ages 20-40). Minnesota and Iowa, where a first offense ostensibly is punished more severely as a crime, have higher recidivism rates — a whopping 41percent in Minnesota! Illinois isn’t far behind at 40 percent.
The key to reducing OWIs is to expedite cases and intervene before first-time offenders become second-time offenders. In Wisconsin we need to close more loopholes with respect to unlawful plea bargaining. Wisconsin’s law is designed to make it easier to convict on a first offense in order to prevent second offenses.
Wisconsin has an appalling drinking culture, and messages such as the one in the original editorial, “If you stay home and get drunk, that’s fine,” don’t help in dissuading it, but criminalizing the first OWI isn’t the panacea people think it is, and just because the first OWI in Wisconsin is a civil forfeiture doesn’t mean Wisconsin does “essentially nothing.”
Our current system requires people to be assessed and follow through on those assessment referrals of treatment or education. In Kenosha the Hope Council on Alcohol & Other Drug Abuse goes one step further and requires abstinence from those ordered to treatment, then follows up with direct biomarker tests to determine abstinence.
Wisconsin isn’t doing nothing. Criminalizing the first OWI is just a little more of the same.
Dick Ginkowski is Pleasant Prairie municipal judge, and Guida Brown is executive director of the Hope Council on Alcohol & Other Drug Abuse, Inc.