Driving under the influence (DUI) is a crime under Wisconsin law. It carries steep penalties, and having a DUI conviction on your record can impact many aspects of your life.
But, if you are facing a DUI charge, this does not necessarily mean that you will be convicted. Prosecutors must prove that you are guilty—and they must do so “beyond a reasonable doubt.”
So, what does it take to prove a DUI charge in Wisconsin?
Understanding the “Elements” of a Wisconsin DUI
The crime of driving under the influence (technically, operating under the influence, or OUI, in Wisconsin) is defined in Section 346.63(1) of the Wisconsin statutes. This section of the law states:
“No person may drive or operate a motor vehicle while: (a) Under the influence of an intoxicant [or] controlled substance . . . to a degree which renders him or her incapable of safely driving . . . ; or (b) The person has a prohibited alcohol concentration.”
To see what prosecutors need to prove in order to secure a DUI conviction, we need to break Section 346.63(1) down into its “elements.” In Wisconsin, these are the elements of a DUI charge:
- You were driving or operating a motor vehicle; and,
- You either (a) were under the influence to a degree that renders you incapable of safely driving, or (b) had a “prohibited alcohol concentration.”
1. Driving or Operating a Motor Vehicle
Under Wisconsin law, you don’t actually have to be driving in order to be convicted of DUI. Wisconsin law allows prosecutors to pursue charges in cases in which someone is “driving” or “operating a motor vehicle.” So, what’s the difference?
Section 346.63(3)(a) of the Wisconsin Statutes defines “driving” as follows:
“‘Drive’ means the exercise of physical control over the speed and direction of a motor vehicle while it is in motion.”
Section 346.63(b) of the Wisconsin Statutes defines “operating” as follows:
“’ Operate’ means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.”
Basically, “driving” means what you think it means. If you are going somewhere in your car, truck or SUV and you are behind the wheel, then you are driving for purposes of Wisconsin’s DUI law.
However, you can also face a DUI charge for “operating” a motor vehicle. Using any of the controls of a motor vehicle constitutes operating for purposes of Wisconsin’s DUI statute. This includes putting the key in the ignition (or pushing the button on your dashboard or key fob). It also includes releasing the handbrake, shifting out of park, or even turning the wheel from the passenger seat. Thus, not only is it possible to get a DUI if you are parked, but it is also possible to get a DUI as a passenger.
The last definition we need to examine is the definition of a “motor vehicle.” This definition appears in Section 340.01(35). A motor vehicle includes any “device in, upon, or by which any person or property is or may be transported or drawn upon a highway” that is “self-propelled.” This includes pretty much anything you could possibly think of as a vehicle, although electric bicycles are specifically excluded.
2. Driving Under the Influence or With a “Prohibited Alcohol Concentration”
So, let’s assume you were driving or operating a motor vehicle. The next question is whether you were legally impaired. Wisconsin law gives prosecutors two ways to prove impairment—they can present evidence to show that you were “incapable of safely driving,” or they can present evidence of your “prohibited alcohol concentration.”
Driving Under the Influence To a Degree That Renders You Incapable of Safely Driving
In Wisconsin, prosecutors do not need to prove that your blood alcohol concentration (BAC) was above the legal limit to secure a conviction. While this is an option, it is not the only option prosecutors have available. Thus, while disputing the reliability of your BAC reading can be an effective defense strategy in some cases, it is important not to assume that you will be found not guilty if your breath or blood test result is unreliable.
Besides your BAC, there are a number of ways prosecutors may seek to prove that you were legally impaired. Some examples include:
- The arresting officer’s testimony regarding your driving behavior
- The arresting officer’s testimony regarding your speech, physical appearance, or unsteadiness
- The arresting officer’s testimony regarding your performance on the field sobriety tests (FSTs)
- Body camera or dash camera footage
- Your statements during your traffic stop or after your arrest
Driving with a “Prohibited Alcohol Concentration”
Regardless of whether you were “incapable of safely driving,” prosecutors in Wisconsin can also secure a DUI conviction by proving that your BAC was over the legal limit. The Wisconsin Statutes refer to this as “prohibited alcohol concentration,” because different BAC limits apply under different scenarios. For example:
- In most cases, adults over the age of 21 cannot drive with a BAC of 0.08% or above.
- Adults over the age of 21 who have three or more prior DUI convictions cannot drive with a BAC of 0.02% or above.
- Adults over the age of 21 who have previously refused a breath test or who have previously received a DUI with a BAC of 0.15% or above cannot drive with a BAC of 0.02% or above.
Even if you took a breath test and blew over the legal limit, it may still be possible to fight your DUI. There are several potential ways to challenge a BAC reading—and there are several other potential defenses to Wisconsin DUI charges as well. The key is to build a defense based on the particular facts of your case, and hiring an experienced defense lawyer will give you the best possible chance to avoid life-altering consequences.