Wisconsin OWI Defense and DOT Implied-Consent Hearing Package

WISCONSIN OWI DEFENSE AND IMPLIED CONSENT (REFUSAL) HEARING PACKAGE

Wisconsin OWI Statutory Snapshot — Pay Special Attention

PART 1 — WISCONSIN'S UNIQUE FIRST-OFFENSE STRUCTURE — CLIENT EXPLANATION

WHY WISCONSIN IS DIFFERENT: Wisconsin is the only state in the United States that treats first-offense OWI as a civil (non-criminal) offense. This means:

1. ☐ No jail. A true first-offense OWI cannot result in incarceration.
2. ☐ No criminal record. The disposition is a "civil forfeiture" akin to a traffic ticket — though substantially more consequential.
3. ☐ No right to a public defender. Because no jail is possible, the Sixth Amendment right to appointed counsel does not attach (Argersinger v. Hamlin, 407 U.S. 25 (1972)).
4. ☐ Burden of proof: Prosecution proves the case by clear, satisfactory, and convincing evidence (NOT beyond a reasonable doubt). State v. Bailey, 54 Wis. 2d 679 (1972).
5. ☐ Six-person civil jury available on demand (not 12-person criminal jury).
6. ☐ However, the administrative driver's license action, the IID requirement, the alcohol assessment under § 343.30(1q), the insurance SR-22, and CDL disqualification under 49 CFR § 383.51 still apply.

Exceptions That Convert a "First" Offense to Criminal

Client Intake Checklist

☐ Date of arrest: [__/__/____] at [__:__ AM/PM]
☐ Date of Notice of Intent to Revoke (refusal cases): [__/__/____]
☐ 10-day deadline for refusal hearing demand: [__/__/____]
☐ Court of jurisdiction (Municipal or Circuit): [________________]
☐ Case / citation no.: [________________________________]
☐ Arresting officer / agency: [________________________________]
☐ Number of prior OWI/PAC convictions/refusals (LIFETIME): [____]
☐ Is this client's "first offense" by countable record? ☐ Yes ☐ No
☐ Any prior counted but outside 10 years? ☐ Yes ☐ No (still counts for IID/criminal under lifetime look-back)
☐ Minor under 16 in vehicle? ☐ Yes ☐ No (CRIMINAL conversion)
☐ Injury or death involved? ☐ Yes ☐ No (CRIMINAL conversion)
☐ Chemical test administered? ☐ Breath (Intoximeter EC/IR II) ☐ Blood ☐ Urine ☐ Refused
☐ Reported BAC: [____] % ☐ ≥ .15 (IID trigger) ☐ ≥ .17 (enhanced fines under § 346.65(2)(g))
☐ "Informing the Accused" form read in full? ☐ Yes ☐ No ☐ Unknown
☐ CDL holder? ☐ Yes ☐ No
☐ Wisconsin resident? ☐ Yes ☐ No

PART 2 — IMPLIED CONSENT (REFUSAL) HEARING DEMAND — 10-DAY DEADLINE

STATE OF WISCONSIN, CIRCUIT COURT, [COUNTY] COUNTY
Case No.: [________________]

DEMAND FOR REFUSAL HEARING — Wis. Stat. § 343.305(9)(a)4

Respondent, [DEFENDANT NAME], by counsel, pursuant to Wis. Stat. § 343.305(9)(a)4, hereby timely demands a refusal hearing on the Notice of Intent to Revoke Operating Privilege issued on [__/__/____].

This demand is filed within ten (10) days of the issuance of the Notice of Intent to Revoke and is therefore timely. Wis. Stat. § 343.305(9)(a)4.

Issues for Hearing — § 343.305(9)(a)5

1. ☐ Whether the officer had probable cause to believe the person was operating while intoxicated or with a PAC;
2. ☐ Whether the person was lawfully placed under arrest for violation of § 346.63(1), (2), (2m), (5), or (7);
3. ☐ Whether the officer complied with § 343.305(4) by reading the "Informing the Accused" form in its entirety;
4. ☐ Whether the person refused to permit the test (and whether any refusal was due to a physical inability unrelated to alcohol/drugs — affirmative defense under § 343.305(9)(a)5.c).

Defense Issues to Develop

☐ Probable cause was lacking — no objectively reasonable belief of impairment
☐ Stop was unlawful — no reasonable suspicion under § 968.24
☐ Arrest was unlawful — County of Jefferson v. Renz, 231 Wis. 2d 293 (1999)
☐ "Informing the Accused" form misread, abbreviated, or read in language driver did not understand
☐ Driver did not unequivocally refuse — request for additional information, request for counsel, conditional response
☐ Driver was physically incapable due to medical condition (asthma, COPD, injury)
☐ Officer failed to read mandatory commercial-driver advisory if CDL/CMV

Demand for Discovery in Refusal Proceeding

☐ All police reports, citations, and DOT records pertaining to the stop
☐ Officer's "Informing the Accused" form (signed/dated)
☐ Dash camera and body-worn camera recordings
☐ Audio of any informing colloquy
☐ Breath instrument certification/maintenance records under Wis. Admin. Code Trans 311

[ATTORNEY NAME], State Bar No. [______]
[FIRM ADDRESS]
[PHONE] | [EMAIL]
Date: [__/__/____]

Certificate of Service

I certify that a copy of this Demand was served on the [DISTRICT ATTORNEY / CITY ATTORNEY] of [COUNTY/MUNICIPALITY] on [__/__/____] via [METHOD], and filed with the Clerk of Circuit Court on the same date.

PART 3 — DISCOVERY DEMAND (CRIMINAL / OWI CIVIL CASE)

STATE OF WISCONSIN, CIRCUIT COURT, [COUNTY] COUNTY
Case No.: [________________]

DEFENDANT'S DEMAND FOR DISCOVERY — Wis. Stat. § 971.23

Pursuant to Wis. Stat. § 971.23 (for criminal cases) / § 345.421 (for civil OWI), Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), Defendant requests:

1. ☐ Complaint and probable-cause statement.
2. ☐ All written, oral, or recorded statements of Defendant — § 971.23(1)(b).
3. ☐ Names and addresses of witnesses — § 971.23(1)(d).
4. ☐ Defendant's prior record — § 971.23(1)(c).
5. ☐ Results of physical or mental examinations and scientific tests — § 971.23(1)(g).
6. ☐ Dash camera, body-worn camera, jail video, and breath-test room recordings.
7. ☐ Intoximeter EC/IR II maintenance log, last-7-day data, simulator solution certificate, and operator certification per Wis. Admin. Code Trans 311.
8. ☐ Wisconsin State Laboratory of Hygiene blood test raw data, GC/MS chromatograms, chain-of-custody, and analyst proficiency records.
9. ☐ All field-sobriety test administration records (HGN clue notation, Walk-and-Turn, One-Leg Stand).
10. ☐ Officer's complete narrative, supplemental reports, field notes, CAD entries.
11. ☐ Personnel/disciplinary records of officer witnesses pertaining to truthfulness.
12. ☐ Notice of any "other-acts" evidence under § 904.04(2).

[ATTORNEY SIGNATURE]
Date: [__/__/____]

PART 4 — MOTION TO SUPPRESS

STATE OF WISCONSIN, CIRCUIT COURT, [COUNTY] COUNTY
Case No.: [________________]

MOTION TO SUPPRESS EVIDENCE

Defendant, by counsel, pursuant to Wis. Stat. §§ 968.135, 971.30, Article I § 11 of the Wisconsin Constitution, and the Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitution, moves to suppress:

I. Grounds — Check All That Apply

☐ A. Stop lacked reasonable suspicion. Terry v. Ohio, 392 U.S. 1 (1968); State v. Post, 2007 WI 60.

☐ B. Lack of probable cause to arrest. County of Jefferson v. Renz, 231 Wis. 2d 293 (1999) — "probable cause to believe" greater than reasonable suspicion required to request a PBT.

☐ C. PBT obtained without probable cause to believe. Wis. Stat. § 343.303; Renz, supra.

☐ D. Warrantless blood draw without consent or exigency. Missouri v. McNeely, 569 U.S. 141 (2013); Birchfield v. North Dakota, 579 U.S. 438 (2016); State v. Howes, 2017 WI 18.

☐ E. Unconscious-driver implied-consent statute unconstitutional as applied. State v. Prado, 2021 WI 64 (warrantless blood draw on unconscious driver violates Fourth Amendment absent warrant or exigency).

☐ F. Breath instrument non-compliance. Wis. Admin. Code Trans 311 — 20-minute observation, instrument certification, simulator solution.

☐ G. Defective "Informing the Accused." Wis. Stat. § 343.305(4); State v. Reitter, 227 Wis. 2d 213 (1999).

☐ H. Miranda violation. State v. Goetz, 2001 WI App 294.

☐ I. Stop unlawfully prolonged. Rodriguez v. United States, 575 U.S. 348 (2015); State v. Wright, 2019 WI 45.

II. Relief

1. Evidentiary hearing under § 971.31;
2. Suppression of statements, observations, and chemical test results.

[ATTORNEY SIGNATURE]
Date: [__/__/____]

PART 5 — PETITION FOR OCCUPATIONAL LICENSE

STATE OF WISCONSIN, CIRCUIT COURT, [COUNTY] COUNTY
Case No.: [________________]

PETITION FOR OCCUPATIONAL LICENSE — Wis. Stat. § 343.10

Petitioner, [DEFENDANT NAME], by counsel, petitions for an Occupational License and states:

1. Petitioner's operating privileges have been ☐ suspended ☐ revoked under [Statute: § 343.305 / § 343.30 / other: ____________] effective [__/__/____].

2. Petitioner has completed the required waiting period:
   ☐ 45 days (1st-offense OWI failed test) — Wis. Stat. § 343.10(2)(a)1
   ☐ 30 days (1st-offense refusal) — Wis. Stat. § 343.10(2)(a)2
   ☐ 60 days (2nd-offense alcohol within 10 yrs)
   ☐ 90 days (3rd-offense alcohol within 5 yrs)
   ☐ 120 days (4th-offense alcohol)

3. Petitioner has filed proof of financial responsibility (SR-22) — policy no. [________________].

4. Petitioner has completed assessment under § 343.30(1q) and Driver Safety Plan: ☐ Yes — date [__/__/____] ☐ Scheduled — date [__/__/____].
5. Petitioner agrees to comply with any ignition-interlock device order under § 343.301 (mandatory for prior OWI, BAC ≥ .15, or refusal).
6. Petitioner requires an occupational license for the following:

☐ Employment — Employer: [_____________________] Address: [_____________________]
☐ Education — School: [_____________________]
☐ Trade / commute / homemaker activities
☐ Medical / treatment
☐ Religious observance
☐ Other (specify): [_____________________]

7. Proposed restrictions:

WHEREFORE, Petitioner requests that this Court grant an occupational license under § 343.10 with the foregoing restrictions and direct DOT/DMV to issue an occupational license credential.

VERIFIED:

[DEFENDANT SIGNATURE] Date: [__/__/____]
[ATTORNEY SIGNATURE] Date: [__/__/____]

PART 6 — PLEA-DEAL ANALYSIS WORKSHEET

A. Exposure Snapshot (Mind the 10-Year Look-Back AND Lifetime Look-Back)

B. Collateral Consequences

☐ Driver Safety Plan / AODA assessment — § 343.30(1q)
☐ Ignition Interlock — § 343.301 (mandatory for BAC ≥ .15, prior OWI, refusal)
☐ SR-22 financial responsibility for 3 years post-reinstatement
☐ CDL — 1 yr (lifetime 2nd) — even on 1st-offense CIVIL OWI for CDL holders
☐ Insurance surcharge
☐ Canada admissibility (IRPA § 36 — Canada treats Wisconsin OWI as criminal-equivalent at the border)
☐ Out-of-state license effects via DLC (Driver License Compact)
☐ Felony OWI: firearm prohibition under 18 U.S.C. § 922(g)(1)

C. Negotiation Targets

D. Offer Log

E. Client Authorization

I, [DEFENDANT NAME], have reviewed the above with counsel. I understand:
☐ A 1st-offense Wisconsin OWI is civil, not criminal — but the license, IID, and AODA consequences are real and substantial.
☐ A future OWI will count this one as a prior under lifetime look-back for criminal/IID purposes (Village of Grafton v. Seatz).
☐ CDL disqualification applies even on civil 1st offense.

I authorize:
☐ Acceptance of the [__/__/____] offer.
☐ Counter-offer: [____________].
☐ Rejection and trial.

Defendant Signature: [____________________________] Date: [__/__/____]
Attorney Signature: [____________________________] Date: [__/__/____]

Sources and References

• Wis. Stat. §§ 346.63, 346.65, 343.30, 343.301, 343.303, 343.305, 343.31, 343.10, 967.055
• Wis. Admin. Code Trans 311 (Breath-Test Equipment)
• Wis. Admin. Code Trans 313 (Ignition Interlock Devices)
• County of Jefferson v. Renz, 231 Wis. 2d 293 (1999)
• State v. Reitter, 227 Wis. 2d 213 (1999)
• State v. Howes, 2017 WI 18
• State v. Prado, 2021 WI 64
• Village of Grafton v. Seatz, 2014 WI App 23 (lifetime IID counting)
• State v. Post, 2007 WI 60
• Missouri v. McNeely, 569 U.S. 141 (2013); Birchfield v. North Dakota, 579 U.S. 438 (2016)
• Wisconsin DOT OWI Penalty Chart: https://wisconsindot.gov/Documents/safety/education/drunk-drv/owipenaltychart.pdf

Disclaimer: Use of this template does not create an attorney-client relationship. Wisconsin's 1st-offense civil OWI structure is UNIQUE in the United States and frequently misunderstood — counsel should affirmatively counsel clients (and especially CDL holders, out-of-state license-holders, and those facing Canada-border travel) about the real-world consequences that survive the absence of a criminal conviction. The 10-day refusal hearing demand under § 343.305(9)(a)4 is jurisdictional and uncompromising.