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Leah Thomas / Craig Mastantuono March 31, 2018

Warmer weather means the days are longer, and time with friends and family usually involves holidays, baseball games and tailgating, festivals like Summerfest, parades, and a drink (or more likely, a few). Unfortunately, even responsible people can make a mistake in judgment and end up getting pulled over for suspected drunk driving. 

As Wisconsin weather comes into its glory, we at Mastantuono & Coffee would like to take a moment to remind everyone to exercise good judgment - don't drink and drive. But in case you end up pulled over after having a few, we also want to remind everyone of their rights. Whether you had a close call this year, are currently facing an OWI or DUI charge, or are planning to go out and enjoy a party or two, feel free to call Mastantuono & Coffee with any questions, and allow us to offer some insight here before making your next move.


This is a very common question, but the answer isn’t all that exciting: OWIs and DUIs are essentially the same charge with different names. Wisconsin uses the term “OWI” (operating while intoxicated), whereas Illinois uses the more commonly recognized “DUI” (driving under the influence).


No matter which term you use, the terminology isn’t half as important as what a OWI/DUI charge could impact in your life. Left unchecked, an OWI/DUI charge in Wisconsin could lead to the following penalties (assuming this is your first offense):

  • $150-$300 in fines, plus all of the mandatory fees and surcharges, which send the total well over $800

  • A 6 to 9 month driver’s license revocation, or a 1-year license revocation if you refuse to take the breath or blood test

  • A 1-year ignition interlock device (IID) requirement if your test result was over .15 (the legal limit is still .08), or if you refuse to take the breath or blood test

  • A mandatory alcohol and other drug abuse (AODA) assessment and complete the recommended treatment, as a mandatory condition of restoring your driving privileges 


Each time you repeat a criminal offense, the penalty for that offense increases. In Wisconsin, the OWI/DUI penalties are as follows for second, third, fourth, fifth and sixth DUI/OWI offenses:

  • 2nd offense: 5 days to 6 months in jail, $300-$1,100 in fines, 12-18 months license revocation, and mandatory IID installation

  • 3rd offense: 45 days to 1 year in jail, $600-$2,000 in fines, 2-3 years license revocation, and mandatory IID installation

  • 4th offense: 60 days to 6 years in jail/prison, $600-$10,000 in fines, 2-3 years license revocation, and mandatory IID installation

  • 5th or 6th offense: 6 months to 10 years in jail/prison, $600-$25,000 in fines, 2-3 years license revocation, and mandatory IID installation


Getting pulled over is a scary and stressful experience — especially if you had a beer or glass of wine with your dinner, or two. But no matter how panicked you feel when that police officer walks up to your window, remember that you have rights, including these:


From the moment that the officer comes to talk to you, he is looking for signs you’ve been drinking – from the smell of alcohol, to bloodshot eyes, to slurred speech. Anything you say concerning your conduct will be used against you. If there is an innocent an truthful explanation for your actions, such as the fact that you are not in fact intoxicated, you only had one drink, you were momentarily distracted by another driver or your phone, you have every right to talk with the officer, answer questions, and hope that a fair inquiry is conducted and you are on your way again. If the only information you can provide is incriminating, you may choose, and you have the right, not to offer it - to remain silent. 

If the officer asks you whether you’ve been drinking, you can answer or politely say, “I wish to cooperate but I will not be answering any questions.” It's your right to remain silent, and you can exercise it lawfully. It’s important to know that the officer will likely use your answers against you either way.


Most people don’t think about whether to refuse tests before they’re pulled over for drunk driving. We know because the most common thing a client with a first offense says is, “I took the tests. Was that a mistake – should I have refused?”

When you’re on the side of the road and suspected of intoxicated driving, the officer will usually have you perform standard field sobriety tests (walk and turn, one-leg stand, and an eye movement test known as HGN), and may ask you to blow into a hand-held breath test device. All of these tests are used for the officer to decide whether to arrest you for drink driving.

If you are arrested, you will be taken to the police station or a hospital and asked to submit to breathalyzer or provide a blood sample. You may refuse the test at this stage, but because of implied consent laws in Wisconsin, you will be given a refusal citation if you choose to refuse.

A refusal conviction itself carries a very significant penalty: a driver's license revocation for one year, and you can’t get an occupational driver’s license for between 30 days and 1 year. That means you can’t drive for any reason during that time, and if you do, it is a crime carrying up to 1 year in jail. 

So, should I have taken the test, our clients ask? There's really no right answer. A test can vindicate someone if the result comes back under the legal limit for blood alcohol concentration, .08 for a first offense in Wisconsin. If the result comes back above the limit, it will be used against you. If you refuse, an additional and significant penalty can result, and you will likely still be prosecuted for OWI/DUI based on the officer's observations. 

How many drinks does it to wind up over the legal limit? Again, no right or easy answer. Blood alcohol content can vary depending on the beverage ingredients, quantities and preparation, if you have food in your stomach, your health and many other factors. Alcohol consumptioon can also impacts our bodies differently based on size and gender.

Many other factors are in play, sometimes cultural. We often handle cases where bartenders served our client drinks that were mixed more strongly that one shot of alcohol per drink: overpouring, a common occurence in Wisconsin. Half liquor to soda? That's three shots per drink, not one. Bar dice before you leave? Shots? Never a good idea. Also, in today's age of microbrew beer with higher alcohol content, you may inadvertently end up drinking the alcohol equivalent of two-three beers for every one consumed. Bottom line, to be safe, watch your drinks being made, don't order a double, mind your beer's alcohol content, and don't consume more than two drinks over the course of the evening if you're going to drive.


If you are arrested and charged, it can be very helpful to have a criminal defense attorney on your side as soon as possible. Not only can a good lawyer review and investigate the situation fully, but (s)he can look out for your interests, and also fight to get your OWI/DUI penalties reduced or dismissed altogether.

Your first chance to challenge the blood/breath test in the case expires as quickly as 10 days after you are ticketed. If you took the tests, you can challenge the DMV’s ability to suspend your license, which is separate from the OWI/DUI court case. This is the first chance for an experienced attorney to get a thorough look at your case, so if you decide to seek legal counsel, do it right away, so that the review hearing can be requested within the first 10 days.

If you refused to take the tests, you need to demand a hearing on whether you improperly refused. This is important because a refusal carries harsh license suspension penalties if you are found to have improperly refused, including a period when you can’t get any driver’s license.


All of us here at Mastantuono & Coffee hope you enjoy the all-too-short summer weather we get here in Wisconsin. Again, always drink responsibly, drive safely, and set a good example. There are plenty of ways to get home, especially with all of the driver apps available with a few clicks of your smart phone. And picking up your car the next day really isn't as big a deal as it may seem at the moment.

But if you make a mistake, don’t hesitate to call Mastantuono & Coffee for a free consult if you find yourself in a legal jam.