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Being stopped for drunk driving can be scary and embarrassing, and leaves you with many questions, like Can I go to jail for a first offense OWI? When is drunk driving a felony? and Can I go to prison? At Mastantuono Coffee & Thomas, we understand how difficult this time in your life can be, and we are experienced at answering your questions and guiding you through the process, anywhere in Wisconsin. While this area of law makes every situation unique, we have included some general information about topics that come up most often in our conversations with clients below.

Call Mastantuono Coffee & Thomas today for an assessment of your situation, and to discuss possible defenses and outcomes. We have the knowledge and experience – and we’re here to help you through this.


Drunk driving in Wisconsin is usually referred to as OWI, or Operating While Intoxicated, because that is the title of the relevant statute. People also commonly use the acronym DUI, or Driving Under the Influence; it all means drunk driving.


The legal limit of alcohol in your system in Wisconsin is generally .08. However, after you have been convicted of a 3rd offense OWI, you are have a .02 blood alcohol concentration for the rest of your life – much lower. This is also true while you have an ignition interlock device installed in your car. The legal limit of alcohol when operating a commercial motor vehicle is .04. The amount of alcohol in your system can also be the basis for increased penalties, including doubling, tripling, or even quadrupling the fine amount for a third or subsequent offense. The experienced attorneys of Mastantuono Coffee & Thomas can assess your case to determine whether there are issues with the test result that can be challenged in court.


It is possible to be charged with and convicted of Operating with a Controlled Substance or Drug in your system, which carries the same penalties. This can happen whether you have taken an illegal drug, an inhalant, or a medication. Many people are not aware that they could be charged for having a valid and prescribed medication in their system, requiring them to have to fight that allegation. The attorneys at Mastantuono Coffee & Thomas are skilled in assessing the nature of the test results, including whether it was handled according to police department protocols, which may provide the basis to challenge the case in court.


Officers administer the field sobriety tests before making a decision to arrest an individual for drunk driving. The current nature of OWI defense work involves intricate in-court challenges of these tests, which have lead to Mastantuono Coffee & Thomas securing a dismissal of an OWI-3rd offense, and multiple OWI-1st offenses. We fight harder than most when challenging the officer’s action in your case.


Drunk driving in Wisconsin is different from most other crimes because it has mandatory minimum penalties, which means that you may not be able to avoid going to jail. The amount of jail time increases as the number of prior drink driving offenses increases. How much jail time are you facing for drunk driving? Following is a list of the penalties by offense number, without additional penalties for situations involving passengers under 16 years of age or injuries:

1st Offense OWI: non-criminal offense with no jail time possible, unless there are other factors present like a passenger under 16 years old or injury for example. 

2nd Offense OWI: is a misdemeanor offense carrying from 5 days in jail, up to 6 months in jail.

3rd Offense OWI: is a misdemeanor offense carrying from 45 days in jail, up to 1 year in jail.

4th Offense OWI: is a Class H felony offense carrying from 60 days in jail, up to 6 years in prison.

5th or 6th Offense OWI: is a Class G felony offense carrying from 18 months in prison, up to 10 years in prison.

7th, 8th or 9th Offense OWI: is a Class F felony offense carrying from 3 years in prison, up to 12.5 years in prison.

10th+ Offense OWI: is a Class E felony offense carrying from 4 years in prison, up to 15 years in prison.

However, there are ways that Mastantuono Coffee & Thomas can guide you through the gauntlet to put you in the best possible position before the sentencing judge, such as participating in treatment and requesting Huber release privileges. The sentencing court can grant Huber release privileges for work, treatment, and child or elder care. We will also help you gather all of the necessary paperwork to meet those requirements. It is important to note that Huber release is considered a privilege by the jail that operates that program. This means that the jail is in control of your release, and any violation of their rules can cause you to lose those privileges - including failing to be on time, or testing positive for drugs or alcohol. You can read more about what to expect if you are sentenced to jail on our blog

Probation may be a possibility; however, it is not right for every client or case. Mastantuono Coffee & Thomas can give you a frank assessment of your case, and help you decide if it is right to seek it for you.


Administrative Suspension. There are two points at which you can lose your driving privileges after being stopped for drunk driving – 30 days after your arrest, and after sentencing. When you are arrested and you give a blood or breath sample, the officer will give you a sheet of paper that says you have 10 days to request a hearing. It is important that you request that hearing, and that you retain an attorney for that hearing, because it is the first chance to attempt to preserve your driving rights. This is an administrative hearing to suspend your driver’s license for 6 months. 

Refusal. If you refused to submit to a test of your blood or breath, the officer will give you a document explaining that you have 10 days to request a refusal hearing. It is important that you request that hearing, and that you retain an attorney for it, because you will lose the right to have that hearing after 10 days. By refusing to submit to an alcohol concentration test, you are potentially subject to a longer license revocation and a delay in obtaining an occupational license; the refusal hearing is the only opportunity to challenge that determination.

Sentencing. The second point at which your driver’s license can be revoked is by the court at a sentencing hearing. The length of a court-ordered driver’s license revocation increases as the number of prior offenses increases. There are options available to you, such as an occupational driver’s license, which we can explain to you.  

If at any point you have an occupational license, you are required to maintain absolute sobriety while driving. You could face additional criminal penalties for driving with a revoked license in violation of the occupational license conditions, including up to 1 year in jail. 


An Ignition Interlock Device (IID) can be ordered for any drunk driving offense, from 12 months up to the maximum length of a license revocation. That maximum increases as the number of prior drunk driving offenses increases.

The time that you are required to have the IID installed in your vehicle begins after sentencing, and before you can apply for any type of driver’s license, including an occupational license. There is an initial installation fee, a monthly maintenance fee, and a removal fee. Specific questions about the IID, where to get it installed, and estimates of the cost are available from the Wisconsin Department of Motor Vehicles (DMV) website

The IID order applies to all vehicles registered in your name, unless you have a court-ordered exemption. You should advise your attorney of the number of cars registered in your name, including collector cars, vehicles being restored, vehicles that you do not have access to, and motorcycles. It is important to address this issue with your attorney prior to the sentencing hearing. If you do not have any vehicles registered in your name, your driving privileges are still limited to operating only vehicles that have an IID installed for the length of the court order. 

In addition, while you are required to have an IID installed in your vehicle, you are also subject to a lower blood alcohol concentration of .02. This means that, if you are stopped for drunk driving while you have the IID installed or during the period you are limited to operating only vehicle with one installed, you can also be charged with operating while intoxicated/OWI if you have more than a .02 blood alcohol concentration. This is a felony offense, and you could face a mandatory minimum penalty of 6 months jail and a maximum of 6 years in prison.


The penalties increase if there is a child under 16 in the vehicle at the time of the driving, including the amount of possible jail time and the fine amount.


If you are found guilty of a drunk driving offense, the court will require you to complete an alcohol assessment and driver's safety plan. It is a one-time appointment where you will be asked about your alcohol and drug use, and then the assessor will recommend a required treatment plan. You will be required to complete both the assessment and recommended treatment to get your full driving privileges back at the end of the license revocation. There are fees associated with this process. 

Your attorney will also likely tell you to begin an AODA (alcohol and other drug abuse) treatment program. If you found guilty of drunk driving and are sentenced, the judge will consider how much treatment and what type of treatment you participated in while the case was pending. This may not be the same treatment described above.