Loophole in Drunken Driving Law Should be Closed

Posted on Categories Alumni Contributor, Criminal Law & Process, Public, Wisconsin Criminal Law & Process

An ignition interlock device (IID) is a breathalyzer installed in a vehicle that prevents a driver from operating the vehicle until first providing an adequate breath sample. In Wisconsin, an IID is required in one of three circumstances after being convicted of either Operating While Intoxicated (OWI) or Operating with a Prohibited Alcohol Concentration (PAC): the defendant is a repeat drunk driver, the defendant refused a chemical blood or breath test under Wisconsin’s implied consent law, or the defendant is a first time drunk driver and had a blood alcohol concentration (BAC) of 0.15 “at the time of the offense.” Because OWI 1st’s are not crimes in Wisconsin, defense attorneys specializing in OWI cases try to negotiate with prosecutors to stipulate that the defendant’s BAC was 0.149 to avoid the costly and cumbersome IID requirement. This arbitrary threshold creates an obvious loophole.

The state legislature should revise this language in the IID statute because its vague language is leading to ridiculous results in court and does not promote consistency in OWI cases. As a matter of syntax, the statute as its currently written is arguably ambiguous. The legislature specifically used the phrase “at the time of the offense” as opposed to “at the time of driving.” The most common interpretation (and one favored by defense attorneys) is that the word “offense” only encompasses the physical act of driving and nothing after it. However, if that is what the legislature intended, then it would have been clearly to use the word “driving” instead. Further, the current language is in clear conflict with the OWI statute that penalizes drunk driving. A second reasonable interpretation is that “offense” includes everything from the driving to when the police officer issues the citations. However, this reading appears to cast too wide a net.

As a practical matter, the statute’s ambiguity is leading to some absurd results in OWI 1st cases where the IID requirement is at issue. For example, consider a defendant cited for OWI 1st and PAC 1st, where his BAC was 0.16 after a chemical breath test. During plea negotiations, the defense attorney agrees that the defendant would likely lose at trial, but the only issue stopping a plea is the IID requirement because his BAC was on the cusp of 0.15. After the defendant enters a plea to the OWI 1st and during sentencing, the defense attorney wants to introduce evidence and testimony from witnesses about the blood alcohol curve to convince the court that the BAC was below 0.15 at the time of driving.  As a result, the sentencing hearing has turned into a mini-trial over the IID requirement, even though the defendant has already admitted guilt. This tactic also puts the prosecutor in a ridiculous situation: if the PAC 1st would have gone to trial, the prosecutor would only have to prove that the BAC was above a 0.08, not that it was above 0.08 and above 0.15 for the IID.

To avoid further confusion, the legislature should do one of three things. The first and more impractical option would be to replace the term “the offense” with “driving,” making it clear that the court might need to take evidence on the exact BAC amount when the defendant is behind the wheel. The second option would be to remove “at the time of the offense” from the statute entirely. This option would eliminate the need to take any evidence at sentencing and let the chemical test result speak for itself. A third option would be eliminate the 0.15 threshold altogether, making IID required regardless if it’s a first offense OWI. This would promote the government’s greater goal to prevent drunk drivers from continuing the drive drunk and would not give first time offenders preferential treatment to avoid an IID.

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