Take the same steps as any injured worker. In Wisconsin, speaking English is not a requirement for workers’ compensation coverage. Get medical care from a doctor you choose. Tell your employer about the injury within 30 days. You can report it in Spanish; the law requires that your employer actually receive notice, so bring a bilingual coworker or interpreter if needed and give it in writing to your supervisor or the person your employer designated; keep a copy. Keep every paper, and ask for an interpreter if your case goes to a hearing. One warning up front: the state’s Worker’s Compensation Division schedules hearings only by written letter. An email inviting you to an online “hearing” is not how a real hearing is scheduled, so do not pay anything.
This guide is for injured workers who don’t speak English and for the family members helping them. It is verified against the Wisconsin Statutes and the publications of the Wisconsin Department of Workforce Development (DWD), the state agency that runs workers’ compensation. Lea esta guía en español.
Nine steps after a work injury
1. Get medical care first, from a doctor you choose
Tell the clinic or hospital that you were hurt at work. Once your employer knows about the injury and that it is related to your work, it must offer you your choice of doctor: any physician, chiropractor, psychologist, dentist, physician assistant, advanced practice registered nurse or podiatrist licensed and practicing in Wisconsin (or another qualified practitioner if you and your employer agree; a second choice is yours on notice to your employer or its insurance company, and further changes need agreement) (Wis. Stat. § 102.42(2)(a)). A doctor you see on referral from your own doctor does not count as another choice. In an emergency, your employer may arrange your first treatment; once the emergency has passed, you choose.
Tell every doctor exactly how you were hurt at work, and ask for an interpreter at each visit (see step 5). DWD’s guide for injured workers explains that compensation and medical payments are based on the medical reports from your doctor, so what goes into those reports matters.
The insurance company can also send you to a doctor it chooses for an independent medical examination (IME). It must pay your necessary expenses, including travel, in advance; you can bring an observer, and you are entitled to copies of the reports (Wis. Stat. § 102.13(1)(b)).
2. Tell your employer within 30 days (in Spanish if you need to, but make sure you are understood)
Tell your supervisor about the injury right away. Wisconsin law requires that your employer actually receive notice of the injury within 30 days. You can report it in Spanish; the law requires that your employer actually receive notice, so if your supervisor doesn’t speak Spanish, bring a bilingual coworker or an interpreter. For a condition that develops over time, the 30 days run from when you knew or should have known what the condition is and that it is related to your work (Wis. Stat. § 102.12). Telling your supervisor is enough if your employer has not posted notices naming someone else to receive injury reports; if it has, tell that person too.
Also give written notice to your supervisor, or to the person your employer designated to receive injury reports: the date, what happened and who you told. Keep a copy. A relative can help you write it in English.
Late notice does not automatically end a claim. Missing the 30 days does not bar your claim if your employer was not misled by the delay. A separate two-year rule also applies: if no compensation is paid (payments for medical treatment or burial expenses do not count) and no application for a hearing is filed with DWD within 2 years after the injury, or after you knew or should have known what the condition is and that it is related to your work, the right to compensation is barred. Having your medical bills paid does not, by itself, keep a claim alive under that rule. But the two-year bar does not apply if your employer knew or should have known of the injury within those 2 years (Wis. Stat. § 102.12).
A claim that survives the two-year rule is subject to the longer time limits in Wis. Stat. § 102.17(4): 6 years for a traumatic injury on or after March 2, 2016, counted from the injury or the last payment of compensation (other than treatment or burial expenses), whichever is later (for an earlier injury, ask a lawyer which rule applies); and no time limit for an occupational disease. Some serious traumatic injuries, such as the loss or total impairment of a hand or any part of the arm above it, or of a foot or any part of the leg above it, any loss of vision, a permanent brain injury, or an injury requiring an artificial spinal disc, a knee or hip replacement, a shoulder replacement or a reverse shoulder replacement (the shoulder replacements were added by 2025 Wisconsin Act 145), also have no time limit. Under 2025 Wisconsin Act 145, filing a hearing application pauses the time limit while the case is pending, but the pause adds no time: the deadline becomes the later of the date the case ends (for example, when DWD approves a settlement or dismisses the application without prejudice) or the date it would have expired anyway, so if the original deadline passed while the case was pending, the claim can be barred as soon as the case ends. A settlement itself can also close future claims, depending on its terms. Those Act 145 tolling rules apply whatever the date of injury. More: how to file a workers’ comp claim in Wisconsin.
3. Your employer and its insurance company report the injury
DWD’s guide says that if you reported the injury, you do not have to file a claim yourself. If your employer does not report the injury, contact DWD’s Worker’s Compensation Division; if the insurer denies or stops benefits, you may need to file an Application for Hearing (WKC-7). Include medical documentation supporting the claim: DWD will not schedule a hearing until it arrives, and it is often your doctor’s WKC-16-B report or another medical report supporting the claim. If you have an attorney, your attorney also files the Certification of Readiness the rules call for. See the end of this step. According to DWD, your employer must report every work injury to its insurance company within 7 days after it learns of the injury, and the insurance company must report lost-time, compensable injury claims to DWD within 14 days after the date of injury.
If the insurance company accepts the claim, or an administrative law judge finds it compensable, workers’ compensation pays for reasonable and necessary medical treatment of the work injury (the insurer can still dispute a particular treatment). While you are healing and unable to work because of the injury, it also pays temporary total disability (TTD): two-thirds of your average weekly wage, up to $1,375 a week for injuries in 2026 and $1,326 a week for injuries in 2025 (DWD rate chart WKC-9572-P). TTD covers only the healing period; if the injury leaves a permanent disability, that is paid separately. There is a 3-day waiting period (Sundays don’t count toward it unless you normally work Sundays): the first 3 days are paid only if the disability continues past the 7th calendar day after you leave work, or if the injury causes permanent disability (Wis. Stat. § 102.43; DWD’s guide). DWD’s guide says that in most cases the insurance company makes the first payment within 14 days of your last day worked.
If the insurance company denies your claim, it must tell you in writing, give the specific reason and tell you about your right to a hearing (Wis. Admin. Code ch. DWD 80). Keep that letter. Here is what to do if your claim is denied.
4. Keep every paper and write down dates
Keep every letter from the insurance company or DWD, with its envelope.
Keep your medical records, the work restrictions your doctor gives you, your pay stubs and any messages with your supervisor.
Write down the dates: when and where you were hurt, who saw it, when you reported it and to whom, and every medical appointment.
Don’t sign anything you can’t read. Ask for a copy of whatever you sign.
Take a photo of every letter with your phone as a backup.
These records also matter if your employer had no workers’ compensation insurance (see below).
5. Language help at a hearing, at the insurer’s exam and at medical visits
Since January 1, 2026, disputed workers’ compensation claims are heard by DWD’s Worker’s Compensation Division. A hearing is not a court trial: an administrative law judge at DWD decides the case.
If your case goes to a hearing and you need a Spanish interpreter, tell DWD’s Worker’s Compensation Division as soon as you get the hearing letter so an interpreter can be arranged: call (608) 266-1340, or have your attorney do it. DWD’s hearing rules set the fees for interpreters who attend hearings.
At the insurance company’s examination (IME), Wisconsin law gives you the right to have a translator you provide present if you have difficulty speaking or understanding English, and the insurer’s written request for the exam must tell you about that right (Wis. Stat. § 102.13(1)(b)). We could not find a workers’ comp rule on who arranges or pays for an interpreter at regular medical appointments; ask the clinic when you book. When you can, use a professional interpreter rather than your supervisor or a coworker, so your own words go into the record.
6. Use DWD’s own guide in Spanish
DWD publishes its guide for injured workers in Spanish: Hechos para trabajadores lesionados: Acerca de la compensación al trabajador en Wisconsin (WKC-18-S-P). It answers common questions in Spanish, such as who is covered, whether you can choose your doctor, who pays the medical bills, how compensation is paid and what happens if your claim is disputed. DWD’s Spanish term for workers’ compensation is compensación al trabajador, the same thing many people call compensación laboral.
DWD says you can contact its Worker’s Compensation Division at (608) 266-1340 to ask for information in another format, including translated into another language.
7. Immigration status alone does not stop benefits
If you are an employee covered by Wisconsin’s workers’ compensation law, your immigration status alone does not disqualify you. The law’s definition of “employee” makes no exception for immigration status (Wis. Stat. § 102.07(4)(a)), and the Labor and Industry Review Commission (LIRC), which reviews workers’ comp decisions, has applied the law that way, in Arista-Rea v. Kenosha Beef International (1999) and Zaldivar v. Hallmark Drywall (2014). Status can still affect loss-of-earning-capacity ratings and the penalty when an employer refuses to rehire an injured worker. And in one LIRC case, Zaldivar v. Hallmark Drywall (2014), the commission noted that the worker’s status stood in the way of federally funded vocational rehabilitation. Our guide has the details: Can I get workers’ comp in Wisconsin if I’m undocumented?
8. Watch out for fake hearing emails
On July 20, 2026, DWD warned that scammers were targeting injured workers, mainly Spanish speakers, with fake workers’ compensation hearings. According to DWD:
The emails come from fake agencies with names such as “Workers’ Compensation Board,” usually from “.org” addresses such as “@workcompcourt.org.”
They invite the worker to an “online hearing” on WhatsApp, Zoom or Teams, staged with a judge, a bailiff and attorneys.
The worker is led to believe money was awarded, then told to pay fees to “finalize” the case.
What DWD wants you to know:
The Worker’s Compensation Division schedules hearings only through written letters.
All attorneys handling workers’ compensation cases in Wisconsin must be licensed to practice law in Wisconsin.
Telephone numbers on DWD correspondence have Wisconsin area codes.
If you get a suspicious message, call DWD’s Worker’s Compensation Division at (608) 266-1340. More from DWD: dwd.wisconsin.gov/wc/fraud.
The warning signs are no official letter from DWD, someone posing as DWD or a “board,” and any request for money. DWD says its Worker’s Compensation Division sends hearing notices through the U.S. Postal Service and holds hearings in person, and that it will not ask you to pay fees or contact you by text or messaging apps.
Do not pay anything or share personal information, such as your Social Security number, until you have checked.
9. Get a free consultation. Se habla español.
Your first consultation with our office is free, and se habla español. Mays Law Office handles workers’ compensation cases on a contingency fee: if nothing is recovered for you, you owe no fee for the attorney’s time. In a disputed case, the fee generally cannot be more than 20% of the disputed amount that is awarded, collected or settled, unless DWD has authorized a different fee in advance. When the insurer admits liability, the amount owed is not disputed and no hearing or appeal is needed, the fee is limited to 10%, and no more than $250. DWD approves the fee (Wis. Stat. § 102.26(2)). Costs, such as charges for medical reports, are separate from the fee and can be deducted from your recovery; whether you owe costs if nothing is recovered depends on the signed fee agreement. No fee is allowed on medical bills that another source, such as group health insurance, is available to pay. Here is how legal fees work in Wisconsin workers’ comp cases.
Dairy farms, meatpacking, construction and roofing
Dairy and other farms. A farm becomes subject to the workers’ compensation law 10 days after the 20th day in a calendar year on which it has 6 or more employees working on the same day. The employees can be at one or more locations, the 20 days do not have to be in a row, and certain relatives of the farmer are not counted (Wis. Stat. § 102.04(1)(c); DWD’s farm guidance). Coverage can also exist in other ways, so do not assume you are not covered; ask a lawyer.
Meatpacking and food processing. Workers’ compensation covers sudden injuries, such as cuts and amputations from knives and saws, and also conditions that build up over time from repetitive work on the line, such as carpal tunnel syndrome. For a condition that develops over time, the 30-day notice clock in step 2 runs from when you knew or should have known what the condition is and that it is related to your work.
Construction and roofing. Falls from roofs, ladders and scaffolds can cause serious injuries. Keep proof of who hired you and what you were paid (step 4).
If your employer had no workers’ compensation insurance. If your employer was required to have insurance and did not (DWD calls this being “illegally uninsured”), you can still claim: for injuries on or after July 1, 1996, the state’s Uninsured Employers Fund pays benefits on valid claims (Wis. Stat. §§ 102.80–102.81). You complete an Uninsured Employers Fund claim application and provide records showing that you worked there and what you were paid, such as payroll checks, check stubs, bank records, wage statements or tax returns.
From our practice: a hearing win for an injured immigrant worker
Attorney Lisa Pierobon Mays represented Rosa, an immigrant mother from Mexico who was the main housekeeper at a large apartment complex, at a contested administrative hearing. Rosa hurt her lower back in a fall at work in October 2021. The insurance company said she had only a minor strain and had fully recovered, relying on its own examiner, whose report ignored three MRIs. According to our published account of the case, the administrative law judge ruled for Rosa and awarded lost-time benefits, a 15% permanent partial disability rating, and payment of her medical treatment and mileage; the insurer remains responsible for reasonable and necessary future treatment of the work injury. The administrative law judge reserved her loss-of-earning-capacity claim, which our office plans to pursue once she has improved her English and tried to return to work or vocational rehabilitation. Read Rosa’s story. Every case turns on its own facts; a past result does not guarantee a similar outcome.
Frequently asked questions
What do I do if I got hurt at work in Wisconsin and don’t speak English?
Get medical care from a doctor you choose and tell the doctor it is a work injury. Tell your employer within 30 days. You can report it in Spanish; the law requires that your employer actually receive notice, so bring a bilingual coworker or interpreter if needed and give it in writing to your supervisor or the person your employer designated. Keep a copy of that notice and every other paper, and write down dates. If your case goes to a hearing, ask for an interpreter. DWD schedules hearings only by written letter, so do not pay anyone who emails you about an online hearing. A free consultation with our office can help with the rest; se habla español.
Can I get workers’ compensation in Wisconsin if I don’t speak English?
Yes, if you are an employee covered by Wisconsin’s workers’ compensation law. Speaking English is not a condition of coverage. Whether you are covered depends on your job and your employer. For example, a farm becomes subject to the law 10 days after the 20th day in a calendar year on which it has 6 or more employees working on the same day, and coverage can also exist in other ways, so do not assume you are not covered; ask. Immigration status alone does not disqualify an otherwise covered employee (Wis. Stat. § 102.07(4)(a)), and the Labor and Industry Review Commission has applied the law that way (Arista-Rea, 1999; Zaldivar, 2014). Status can still affect loss-of-earning-capacity ratings and the refuse-to-rehire penalty, and in one LIRC case (Zaldivar, 2014) the commission noted that the worker’s status stood in the way of federally funded vocational rehabilitation.
Can I have an interpreter at a workers’ comp hearing in Wisconsin?
If your case goes to a hearing and you need a Spanish interpreter, tell DWD’s Worker’s Compensation Division as soon as you get the hearing letter so an interpreter can be arranged: call (608) 266-1340, or have your attorney do it. DWD’s hearing rules set the fees for interpreters who attend hearings. At the insurance company’s exam (IME), the law gives you the right to have a translator you provide present if you have difficulty speaking or understanding English (Wis. Stat. § 102.13(1)(b)). For regular medical appointments, ask the clinic when you book.
Can I report my work injury to my employer in Spanish?
You can report it in Spanish; the law requires that your employer actually receive notice, so make sure it is understood. Wisconsin law requires that your employer actually receive notice of the injury within 30 days (Wis. Stat. § 102.12). If your supervisor doesn’t understand Spanish, bring a bilingual coworker or an interpreter. Also give written notice to your supervisor or the person your employer designated to receive injury reports, with the date and what happened, and keep a copy. A relative can help you write it in English.
I got an email about an online workers’ comp hearing. Is it real?
Be very careful. DWD’s Worker’s Compensation Division schedules hearings only through written letters, so an email is not how a hearing is scheduled. In July 2026, DWD warned that scammers were emailing injured workers, mainly Spanish speakers, from “.org” addresses to set up fake video hearings and then asking for fees. The warning signs are no official letter, someone posing as DWD, and any request for money; DWD says it holds hearings in person and will not ask you to pay fees. Do not pay anything. To check, call DWD at (608) 266-1340 or ask your attorney.
Talk to our Wisconsin workers’ comp office. Se habla español.
Attorney Lisa Pierobon Mays has practiced law in Wisconsin since 1995 and concentrates her practice on workers’ compensation for injured workers, with more than 25 years of experience. She served on the Board of Directors for District 7 of the Wisconsin Association for Workers Compensation Attorneys (WAWCA) from 2001 to 2025. Your first consultation is free. Learn more about our Wisconsin workers’ compensation practice, or contact us for a free consultation. Se habla español.
No. In Wisconsin, a workers’ compensation claim cannot be denied solely because the worker is undocumented. The law covers “every person in the service of another under any contract of hire, express or implied” (Wis. Stat. § 102.07(4)(a)), and none of the definition’s listed exceptions, such as domestic servants, turns on immigration status. If you are otherwise covered, your status alone does not disqualify you: you are generally eligible for the same core benefits as any other covered worker: medical care, weekly wage-loss checks and permanent disability benefits, under the ordinary rules and with the few limits described below (status can affect loss-of-earning-capacity ratings, retraining and the refuse-to-rehire penalty).
The insurer can still dispute a claim on the usual grounds, such as whether the injury arose out of your work. But under the statute’s definition and LIRC’s decisions, immigration status alone is not a lawful reason to deny the claim. A few items can work differently for someone without permission to work in the U.S. This page explains them, and what to do now.
Why doesn’t immigration status bar workers’ comp in Wisconsin?
The legislature put no immigration exclusion in the workers’ compensation chapter, and it knows how to write one: Wisconsin’s unemployment law has an express immigration-status rule (Wis. Stat. § 108.04(18)). The definition of “employee” in the workers’ compensation chapter has none.
The Labor and Industry Review Commission (LIRC), the state commission that reviews workers’ comp decisions, has applied the law that way. In Arista-Rea v. Kenosha Beef International (LIRC, 1999), it held that temporary disability benefits cannot be cut off merely because an undocumented worker is let go, as long as the worker is still temporarily disabled.
What can an undocumented worker receive?
The same core benefits as any injured worker:
Benefit
What Wisconsin law provides
Medical care
Reasonable and necessary treatment for the injury, paid by the insurer or self-insured employer, plus mileage to appointments. You choose your own treating practitioner from those the law lists (Wis. Stat. § 102.42(2)(a)).
Wage-loss checks while you heal (temporary total disability, TTD)
Two-thirds of your average weekly wage, up to $1,326 a week for 2025 injuries and $1,375 a week for 2026 injuries (Wisconsin Department of Workforce Development, DWD, rate chart WKC-9572-P).
Permanent partial disability (PPD)
Based on the medical evidence of permanent impairment, usually your treating practitioner’s rating; if the insurer disputes it, a judge decides the percentage from the evidence; for some unscheduled injuries, such as back injuries, loss of earning capacity can also count, but if you go back to work for the same employer, it is considered only when your actual wage loss, compared with your earnings at the time of injury, is 15 percent or more (Wis. Stat. § 102.44(6)) (see below), at up to $446 a week for injuries from January 1, 2025, through March 31, 2026, and $454 a week for injuries from April 1 through December 31, 2026 ($462 for injuries on or after January 1, 2027).
Death benefits
Paid to the worker’s dependents.
If the family lives outside the United States. Dependents who are nonresident aliens living outside the United States can claim death benefits only under strict rules (Wis. Stat. § 102.51(2)). If the worker had lived in the U.S. for 8 years or more before the injury, the law conclusively presumes that a relative who remained a nonresident alien during that time was not dependent on the worker. Only certain family members, such as a spouse, children, parents or siblings, can qualify as dependents at all. And if the worker had been in the U.S. continuously for at least a year and employed here for at least 6 months, a nonresident relative must prove dependency with written evidence of money the worker sent, such as money-transfer receipts or canceled checks. Unless DWD decides otherwise, the consular officer of the family’s country, or that officer’s designated representative in Wisconsin, is their sole representative in the claim (Wis. Stat. § 102.19).
What may be limited?
Three areas can play out differently for a worker who cannot legally work in the U.S. None of them bars medical care, wage-loss checks or a rating for your physical impairment.
Loss of earning capacity. For some permanent injuries, such as back injuries, the permanent disability award can reflect how much the injury cuts what you are able to earn. In Zaldivar v. Hallmark Drywall (LIRC, 2014), the commission held that federal law does not stop it from assessing that loss for an undocumented worker. Because the worker could not legally obtain work in the United States, LIRC found that fact had to be taken into account. Status is a factor in the rating, not a bar.
Vocational retraining. Retraining may be limited. In the same case, LIRC noted that the worker’s status stood in the way of federally funded vocational rehabilitation through the state’s Division of Vocational Rehabilitation (DVR).
The refuse-to-rehire penalty. If your employer, without reasonable cause, refuses to take you back when suitable work within your physical and mental limits is available, it can be ordered to pay the wages you lost, up to one year’s wages (Wis. Stat. § 102.35(3)). In Amalga Composites, Inc. v. LIRC (Wis. Ct. App. July 5, 2017, No. 2016AP1445, unpublished), an employer let an injured worker go after she was released to return to work, citing problems with her Social Security number. The Court of Appeals did not decide whether federal immigration law blocks the penalty for an undocumented worker. It sent the case back to LIRC to decide first, as a fact, whether she was undocumented. On remand, LIRC found the employer had not carried its burden of proving that, and the penalty stood. Because the appeals court’s decision is unpublished, it is not binding precedent.
What if my employer threatens me or won’t take me back?
You cannot sign away your rights. Generally, no agreement by an employee to waive the right to compensation is valid, and an employer may not take the cost of its workers’ comp insurance out of your wages (Wis. Stat. § 102.16).
The employer pays the refuse-to-rehire penalty itself, not its insurance company (Wis. Stat. § 102.35(3)).
Being fired over your status does not stop temporary disability checks while you are still temporarily disabled (Arista-Rea, above).
Get advice before you decide anything. If your employer pressures you not to report the injury, or offers cash instead of a claim, talk to a workers’ compensation attorney first.
What should I do now?
Get medical care. Tell the provider it is a work injury. You have the right to choose your own doctor, and to a second choice if you notify your employer or its insurer (Wis. Stat. § 102.42(2)(a)).
Tell your employer within 30 days, in writing if you can, and keep a copy. For a condition that develops over time, the 30 days can run from when you knew or ought to have known that it was disabling and caused by your work. Missing the 30 days does not bar the claim if the employer was not misled. But if nothing other than medical treatment or burial expenses has been paid and no application for hearing is filed within 2 years of the injury (or of when you knew or ought to have known it was work-related), the right to compensation is barred, unless the employer knew or should have known of the injury within that time (Wis. Stat. § 102.12). Your employer must report the injury to its insurance carrier within 7 days after learning of it, and the insurer reports lost-time claims to DWD. More: how to file a workers’ comp claim in Wisconsin.
Keep every paper: pay stubs, messages about your schedule, medical records and every letter from the insurer. If your employer was required to carry workers’ comp insurance but did not, you can apply to the state’s Uninsured Employers Fund (Wis. Stat. §§ 102.80–102.81), and records of your work and pay (pay stubs, bank records, wage statements) help prove the claim.
If the insurer denies the claim, it must tell you in writing why and that you have a right to a hearing. You or your attorney can then file an Application for Hearing (form WKC-7) with DWD, which has run workers’ comp hearings since January 1, 2026. DWD’s instructions say to fax it, mail it or file it in person, with medical documentation supporting the claim; DWD will not schedule a hearing until that medical support arrives, and if you have an attorney, the attorney must also file a Certification of Readiness. There is no filing fee, and an administrative law judge decides. The application form asks for your Social Security number and says that providing it is mandatory under a federal Medicare reporting law; if you do not have one, talk to an attorney before you file, and never use a number that is not yours. More: what to do if your claim is denied.
Watch for fake hearing emails. On July 20, 2026, DWD warned that scammers were targeting Spanish-speaking injured workers with fake online hearings to extort fees. DWD’s Worker’s Compensation Division schedules hearings only by written letter. An email inviting you to an online “hearing” is not how DWD schedules one: pay nothing, and check with DWD or your attorney first.
For a relative who reads Spanish, DWD publishes its guide for injured workers in Spanish (WKC-18-S-P).
A hearing win from our practice: an injured immigrant worker
Attorney Lisa Pierobon Mays represented Rosa (the firm’s account does not identify her immigration status), an immigrant mother from Mexico who was the main housekeeper at a large apartment complex, at a contested administrative hearing. Rosa hurt her lower back on October 4, 2021: she was pulling a stuck bag out of an outdoor dog-waste bin when it suddenly gave way, and she fell backward onto the asphalt. The insurer acknowledged the injury but claimed it was a minor strain and that she had fully recovered. It relied on the report of its own examiner (the independent medical examination, or IME), which ignored three MRIs.
The fight was over the medical evidence. The administrative law judge ruled for Rosa and awarded:
lost-time benefits (TTD), with no offset for the long-term disability benefits she had already received for the same period;
a 15% permanent partial disability (PPD) rating;
payment of all her medical treatment and reimbursement of her medical mileage, and the insurer remains responsible for reasonable and necessary future treatment of the work injury.
The judge reserved ruling on loss of earning capacity because she had not yet tried to return to work or vocational rehabilitation. Read Rosa’s story. Every case turns on its own facts; a past result does not guarantee a similar outcome.
Frequently asked questions
Can I get workers’ comp in Wisconsin if I don’t have papers?
Yes. In Wisconsin, a claim cannot be denied solely because you are undocumented. The law covers every person working for another under a contract of hire, express or implied (Wis. Stat. § 102.07(4)(a)), and none of its listed exceptions turns on immigration status. If you are otherwise covered, you can receive medical care, wage-loss checks while you heal and permanent disability benefits.
How much does workers’ comp pay an undocumented worker?
The same as any other worker: generally two-thirds of your average weekly wage while the work injury keeps you from working during your healing period (after a three-day waiting period; those first three days are paid too if the disability continues past the seventh calendar day or causes permanent disability), up to $1,326 a week for 2025 injuries and $1,375 a week for 2026 injuries, plus reasonable and necessary medical care paid by the insurer or self-insured employer.
Can my benefits be cut off if I’m fired for not having papers?
Not for that reason alone. In Arista-Rea v. Kenosha Beef International (LIRC, 1999), the commission held that temporary disability benefits cannot be cut off merely because an undocumented worker is let go, as long as the worker is still temporarily disabled.
What if my employer tells me not to report the injury because I’m undocumented?
Your claim depends on notice: tell your employer about the injury within 30 days, in writing if you can (Wis. Stat. § 102.12). Generally, no agreement to give up your right to compensation is valid (Wis. Stat. § 102.16). Talk to a workers’ comp attorney before you accept any cash arrangement.
How much does a workers’ comp lawyer cost in Wisconsin?
The first consultation with our office is free. In a disputed case, Wisconsin generally caps the attorney’s fee at 20% of the disputed amount recovered (Wis. Stat. § 102.26), and the fee must be approved by DWD. Mays Law Office handles workers’ compensation cases on a contingency fee, so if nothing is recovered there is no attorney’s fee; case costs are separate and can be deducted from a recovery.
Talk to a Wisconsin workers’ comp attorney
If you were hurt at work in Wisconsin, your immigration status does not take away your right to claim. Lisa Pierobon Mays has practiced law in Wisconsin since 1995, concentrates her practice on workers’ compensation for injured workers, and served on the Board of Directors for District 7 of the Wisconsin Association for Workers Compensation Attorneys (WAWCA) from 2001 to 2025. Learn more about our Wisconsin workers’ compensation practice, or contact us for a free consultation. Se habla español.
It’s not just a hot new technology trend. It’s also become the newest cocktail party question people ask criminal defense attorneys, especially the ones who handle drunk driving cases:
“Can I still get an OWI if I’m using the self-driving mode on my car?”
The short answer is yes.
Wisconsin’s drunk driving law is broader than most people think. It does not just punish people who drive while intoxicated. It also punishes people who “operate” a vehicle while intoxicated, and those are two very different things under Wisconsin law. That difference matters a lot when you’re talking about a Tesla on Autopilot, Full Self-Driving (FSD), or any other car that can steer, brake, and accelerate on its own. Here’s what the statute actually says:
Wisconsin Statute § 346.63(1)(a) states that no person may “drive” or “operate” a motor vehicle while “under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving…”
Wisconsin Statute § 346.63(3)(a) defines “drive” the way most people would guess. It means “the exercise of physical control over the speed and direction of a motor vehicle while it is in motion.” But the definition of “operate” is where things get interesting, and where a lot of Tesla owners get surprised. “Operate” is defined as the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion. Wis. Stat. § 346.63(3)(b).
What does this mean in plain English?
It means the vehicle does not even need to move for you to have “operated” it under Wisconsin law. The simple act of turning on your ignition, or pressing the start button on a keyless car, counts as “operating” a vehicle. If you’re intoxicated when you do it, that alone can be enough for an OWI charge in Wisconsin. You don’t have to put the car in drive. You don’t have to touch the gas pedal. You just have to turn the vehicle on.
The definition of operate was discussed in County of Milwaukee v. Proegler, 95 Wis. 2d 614, 291 N.W.2d 608 (Ct. App. 1980). In that case, police found Proegler asleep behind the wheel of his pickup truck. The truck was parked on an emergency ramp along an interstate highway. The keys were in the ignition, the motor was running, the lights and heater were on, and the transmission was in park. Proegler told officers he had parked his vehicle and fallen asleep almost four hours earlier. He was cited for operating a motor vehicle while intoxicated.
On appeal, the Wisconsin Court of Appeals ruled that Proegler’s actions did fit the legal definition of “operate.” The court explained that “activation of any of the controls of a motor vehicle necessary to put it in motion” covers turning on the ignition, or simply leaving the motor running while the vehicle sits in park.
The court continued, saying that a person who gets into a vehicle while intoxicated and does nothing more than start the engine is just as dangerous to the public as a driver who is actually driving down the road. As the court put it, the hazard always exists that the car may be caused to move by accident, or that the person who started the car may decide to drive after all.
Wisconsin courts have gone even further since Proegler. Sixteen years later, in State v. Modory, 204 Wis. 2d 538, 555 N.W.2d 399 (Ct. App. 1996), the court ruled that movement is not necessary for operation, and that the immobility of a vehicle does not prevent a finding that it was being operated.
Wisconsin courts have also made it clear that the police do not need to witness you driving to charge you with an OWI. In Monroe County v. Kruse, 76 Wis. 2d 126, 250 N.W.2d 375 (1977), an officer found Kruse asleep in a parked car. No one saw him drive. But there was enough evidence to show he had driven to that spot about fourteen minutes earlier. The Wisconsin Supreme Court said that was enough to support an OWI conviction. The lesson here is simple: circumstantial evidence can be just as damaging as an officer watching you drive.
Sounds Strict?
Well, that’s kind of the point. The Wisconsin legislature wrote the OWI laws to be strict on purpose. Lawmakers want to discourage people from getting behind the wheel of a car at all while intoxicated, not just from actually driving one. That strict approach effectively shuts down the “but my car was driving” defense before it ever gets started.
So, how does all of this apply to cars equipped with autopilot or FSD capabilities?
It applies directly, and means that the technology will not help anyone get off the hook of an OWI. Starting the vehicle and programming a destination both count as “operating” the car under Wisconsin law, even if the car handles all the steering, braking, and acceleration from that point forward.
While you may think using the autopilot or self-driving feature on your car after a couple of drinks is the smart, responsible choice. It certainly may feel that way. But under Wisconsin law, it is not a safe, legal choice. You are still at risk of an Operating While Intoxicated charge, along with everything else that comes with it. The best choice is still the simplest one: do not get behind the wheel, self-driving or not, after you have been drinking.
So the next time you’re at a cocktail party, and hear someone ask about the My Car was Driving Defense, you can expertly tell them three things –
Wisconsin law punishes “operating” a vehicle, not just driving one.
Wisconsin courts have said a car does not even need to move for that to count as “operating.”
In Wisconsin, turning ON a self-driving system while intoxicated does not erase your legal responsibility. It may actually help prove the state’s case against you instead.
Charged With an OWI in Wisconsin? Talk to Mays Law Office.
If you have been charged with an OWI offense, whether you were behind the wheel of a traditional car or in the driver’s seat of a Tesla using FSD, you need a team that understands the legal difference between “driving” and “operating.” Building a strong Wisconsin OWI defense means knowing exactly how the state plans to prove operation and knowing how the OWI laws hold up against new technology.
This is where the Wisconsin OWI defense team at Mays Law Office comes in. We handle the complexities of OWI defense in Wisconsin every day, and we know how to challenge the state’s evidence at every stage of your case. Contact Mays Law Office today to talk with a Wisconsin OWI defense attorney about your situation.
This article provides general legal information and is not legal advice. Reading it does not create an attorney-client relationship. Laws change and every case turns on its specific facts. Consult a licensed Wisconsin attorney about your situation.
By Stephen E. Mays, Mays Law Office, LLC · Updated September 2026
Can you get a criminal record expunged in Wisconsin? For an adult conviction, only if the judge orders it at sentencing. Under Wis. Stat. § 973.015 a court may order expungement only when you were under 25 when the offense was committed and the maximum penalty is six years or less. Apart from a narrow trafficking-victim exception — and a separate juvenile process — there is generally no later adult petition. Mays Law Office defends criminal cases in Madison, Middleton and across Wisconsin.
Almost everything written online about clearing a criminal record describes a system Wisconsin does not have. In most states you serve your sentence, stay out of trouble for a few years, then file a petition asking a judge to seal or expunge the case. That is the national model, and it is what most national legal websites describe.
Wisconsin works the other way around. Here the decision is made before you have served a single day — at the sentencing hearing itself — and it is made only for a narrow group of people. On that ordinary adult route, if nobody raises it that morning, the door closes. The statute keeps open one narrow later motion, for a trafficking victim; juveniles have a separate petition.
That is a hard thing to read if you are already past sentencing. It is a very useful thing to know if you are not. The legal claims below were verified against the Wisconsin Statutes, the Wisconsin decisions cited, and the Legislature’s official bill records in September 2026.
Can You Get a Criminal Record Expunged in Wisconsin? The Three Gates in § 973.015
Wisconsin’s adult expungement statute has several subsections, but the ordinary eligibility rule sits in one sentence, and every word of it matters. Wis. Stat. § 973.015(1m)(a)1. reads:
“Subject to subd. 2. and except as provided in subd. 3., when a person is under the age of 25 at the time of the commission of an offense for which the person has been found guilty in a court for violation of a law for which the maximum period of imprisonment is 6 years or less, the court may order at the time of sentencing that the record be expunged upon successful completion of the sentence if the court determines the person will benefit and society will not be harmed by this disposition.”
Three gates are built into that sentence, and on this ordinary route you have to clear all three. (One narrow category, described at the end of this section, is handled differently.)
Gate one: under 25 at the time of the offense
The age that counts is your age on the day the offense was committed — not the day you were charged, and not the day you were sentenced.
That cuts both ways, and the distinction is worth understanding precisely:
If you were 24 when it happened and the case drags on until you are 26, you are still within the statute.
If you had already turned 25 on the day it happened, this route is closed to you no matter how minor the offense or how clean the rest of your life has been. (The trafficking-victim motion in § 973.015(2m), below, carries no age requirement.)
You will see this rule written as “25 or younger” or “under 25 at sentencing.” Both are wrong, and both can cost someone a chance they actually had.
Gate two: a maximum penalty of six years or less
The second gate looks at the offense, not at the sentence you receive. The question is what the law allows as a maximum, which in Wisconsin means:
All misdemeanors. Class A carries up to 9 months; Class B up to 90 days; Class C up to 30 days (Wis. Stat. § 939.51(3)).
Class H felonies, with a maximum of 6 years, and Class I felonies, with a maximum of 3 years and 6 months (Wis. Stat. § 939.50(3)).
Nothing above that. A Class G felony carries a 10-year maximum, so it is outside the statute even if the judge places you on probation and you never see the inside of a prison.
A note on those numbers, because they frighten people unnecessarily: a class maximum is a ceiling set by the legislature, not a prediction of your sentence. Actual sentences turn on the facts, your record, your mitigation, and the judge’s discretion. Nobody can tell you what you will receive, and you should be skeptical of anyone who does.
One more consequence of the “period of imprisonment” language: the statute does not reach civil forfeitures. The Court of Appeals said so directly in Kenosha County v. Frett, 2014 WI App 127 — where a law carries no period of imprisonment, § 973.015 does not apply to it. A standard first-offense OWI in Wisconsin is a civil forfeiture, which is why it sits outside this statute entirely. We cover that separately on our OWI and drunk driving defense page.
Gate three: the judge has to make a finding
Clearing the first two gates makes you eligible. It does not make expungement yours. The court still has to determine that “the person will benefit and society will not be harmed by this disposition.”
That is a discretionary call, and the Court of Appeals has made clear it cannot be a rubber stamp in either direction. In State v. Helmbrecht, 2017 WI App 5, the court held that a sentencing judge deciding expungement should set out on the record the facts considered and the reasoning behind the decision — something more than reciting that a defendant will or will not benefit.
That is why this is argued, not requested. Your record, your schooling or job, what a conviction would foreclose, and what the offense actually was all belong in front of the judge before the sentence is announced.
The one place the statute makes the order mandatory
There is a single mandatory corner. Under § 973.015(1m)(a)2., the court shall order expungement upon successful completion of the sentence where the offense was a violation of Wis. Stat. § 942.08 (invasion of privacy), subsections (2)(b), (c) or (d) or (3), and the person was under 18 when it was committed. It is the only provision in the adult statute that requires a court to order expungement; everywhere else the word is “may.”
Who Is Shut Out Even When the Age and Penalty Gates Are Met
Section 973.015(1m)(a)3. adds a list of convictions no court may expunge, and it applies to the felony end of the eligible range.
A Class H felony cannot be expunged if:
you have, in your lifetime, been convicted of a prior felony offense;
the felony is a “violent offense” as defined in Wis. Stat. § 301.048(2)(bm); or
it is a violation of § 940.32 (stalking), § 948.03(2), (3) or (5)(a)1.–4. (physical abuse of a child), or § 948.095 (sexual assault of a child by a school staff person or a person who works or volunteers with children).
A Class I felony cannot be expunged if:
you have, in your lifetime, been convicted of a prior felony offense;
the felony is a “violent offense” under § 301.048(2)(bm); or
it is a violation of § 948.23(1)(a).
Read the subsection closely and you will notice what it does not say. Those carve-outs are written for Class H and Class I felonies. That is a real distinction, and it is one more reason a general summary of “Wisconsin expungement rules” is a poor substitute for reading the statute against your own case with a lawyer.
The Deadline Almost Nobody Expects: Expungement Is Ordered at Sentencing
Here is the sentence that decides most cases: the court “may order at the time of sentencing that the record be expunged upon successful completion of the sentence.”
Wisconsin’s appellate courts have read that phrase as narrowly as it is possible to read it.
In State v. Matasek, 2014 WI 27, the Wisconsin Supreme Court held that “at the time of sentencing” means at the proceeding where the circuit court announces the sanction — the sentencing hearing itself.
In State v. Arberry, 2018 WI 7, the Court held that the phrase means only at the time sentence is imposed, and does not extend to post-sentencing motions for sentence modification. The defendant there had not asked for expungement at her sentencing; she moved afterward to have the judgment amended so she could get it. The answer was no.
And a circuit court has no general power to fill the gap on its own. The Attorney General concluded decades ago that circuit courts do not possess inherent authority to expunge or destroy conviction records (70 Atty. Gen. 115) — the authority comes from the statute or it does not exist.
The practical consequence is simple and unforgiving. If expungement is not raised, argued and ordered on the record at your sentencing hearing, there is no general adult petition in Wisconsin that gets you back to it later — not after a year of perfect behavior, not after ten. The statute holds open exactly one later adult motion, § 973.015(2m), limited to one offense and one situation; juvenile records run on a different statute with a petition of its own. Both are set out next.
The one narrow retroactive route in the statute
There is a single exception, and it is deliberately narrow. Under § 973.015(2m), a person convicted of prostitution under Wis. Stat. § 944.30 may move at any time to have the conviction vacated or the record expunged, if they were a victim of trafficking for the purposes of a commercial sex act and committed the offense as a result of that trafficking. The subsection sets out what the motion must contain, requires that it be brought with due diligence subject to safety concerns, and requires notice to the district attorney’s office that prosecuted the case.
That is the whole of the retroactive relief available to adults under this statute. It exists because the legislature created it for one specific situation.
Juveniles are treated differently
Contrast the juvenile side. Under Wis. Stat. § 938.355(4m), a juvenile adjudged delinquent may, on attaining 17 years of age, petition the court to expunge the court’s record of the adjudication, and the court may grant it if the juvenile satisfactorily complied with the dispositional order and the court finds the juvenile will benefit and society will not be harmed. A petition, filed later, by the person seeking relief — exactly the mechanism the adult statute lacks.
This is not the same as sentence adjustment
Expungement is also frequently confused with early release. If you are already serving a Wisconsin prison sentence, the statute people are usually thinking of is Wis. Stat. § 973.195, the sentence adjustment petition — a different statute, a different remedy and a different deadline, which we explain in our post on Wisconsin sentence adjustment under § 973.195. It has nothing to do with clearing a record.
“Ordered” Is Not “Done”: What Successful Completion of the Sentence Requires
An expungement order at sentencing is conditional. It says the record will be expunged upon successful completion of the sentence — and the statute defines that term.
Under § 973.015(1m)(b), a person has successfully completed the sentence if:
the person has not been convicted of a subsequent offense;
if on probation, the probation has not been revoked; and
the probationer has satisfied the conditions of probation.
When that happens, “the detaining or probationary authority shall issue a certificate of discharge which shall be forwarded to the court of record and which shall have the effect of expunging the record.”
You do not have to file anything — State v. Hemp
In State v. Hemp, 2014 WI 129, the Wisconsin Supreme Court held that the statute places no burden on you to petition the court within any particular period to make an ordered expungement take effect. The discharging authority forwards the certificate of discharge, and at that point the process is self-executing. The Court also held that nothing in the statute gives a circuit court authority to revisit an expungement decision it has already made. Once the order is in place and you satisfy the conditions, you have earned it.
But “satisfied the conditions” means all of them — State v. Lickes
The other side of that coin is State v. Lickes, 2021 WI 60. The Supreme Court held that “conditions of probation” in § 973.015(1m)(b) means conditions imposed by both the sentencing court and the Department of Corrections — and that a circuit court has no discretionary authority to declare the conditions satisfied when the record shows one or more were violated.
Read that together and the practical instruction is blunt. An ordered expungement is not a promise; it is a condition you have to meet completely. Note that § 973.015(1m)(b) lists “the probation has not been revoked” and “the probationer has satisfied the conditions of probation” as two separate requirements — so revocation is not the only question. Under Lickes, where the record demonstrates that an applicable condition was violated — whether the court imposed it or your agent did — the circuit court has no discretionary authority to declare the conditions satisfied.
That is narrower than the version you will read online. Lickes does not hold that a missed appointment or an unpaid bill, by itself, ends an expungement; it holds that a demonstrated violation can stop a court from finding you successfully completed the sentence. Which obligations are conditions of your probation, and whether the record shows a violation, are questions about your file. If expungement was ordered, treat every condition, including the ones your agent sets, as load-bearing.
What an Expungement Actually Reaches — and What It Leaves Untouched
This is where the most damaging misunderstandings live, because “expunged” sounds like “erased everywhere.” It is narrower than that.
What it does. Expungement under this section means, in the words of a long-standing Attorney General opinion, to strike or obliterate from the record all references to the defendant’s name and identity (67 Atty. Gen. 301). That is the court record, held by the clerk of circuit court — the file that feeds the public Wisconsin Circuit Court Access site most employers and landlords search.
What it does not do.
It does not undo the conviction. In State v. Braunschweig, 2018 WI 113, the Supreme Court drew the line precisely: vacating a judgment invalidates the conviction, while expunction “merely deletes the evidence of the underlying conviction from court records.” Expunction does not invalidate a conviction.
It does not order police or prosecutors to destroy their files. The official annotation to § 973.015 states that the statute does not require law enforcement agencies or prosecutors to destroy records relating to an expunged conviction (State v. Leitner, 2002 WI 77).
It does not keep the underlying facts out of a future sentencing.Leitner permits a sentencing court in a later case to consider the facts underlying an expunged conviction, and State v. Allen, 2017 WI 7, confirmed that a court may do so where those facts come from sources other than the expunged court records — including a presentence investigation report.
It does not touch your driving record. The statute says so on its face: expungement under § 973.015(1m)(a)1. “does not apply to information maintained by the department of transportation regarding a conviction that is required to be included in a record kept under s. 343.23(2)(a).”
There is one protection worth knowing on the other side of the ledger: an expunged conviction is not admissible to attack a witness’s credibility (State v. Anderson, 160 Wis. 2d 435 (Ct. App. 1991)).
An expunged OWI still counts as a prior
This one has real consequences, because Wisconsin’s OWI penalties escalate by offense number.
Wisconsin Stat. § 343.307(1) directs that the court shall count listed prior convictions to determine the length of a revocation and to determine the penalty under § 346.65(2). Nothing in that list carves out convictions that were later expunged — and in State v. Braunschweig, the Supreme Court confirmed that an expunged prior still counts, because expunction removes the evidence of the conviction from court records without invalidating the conviction itself.
So an expunged OWI-related conviction is not wiped out of the count. Whether a particular prior actually raises the offense number on a new case is a separate question answered by Wisconsin’s ordinary counting rules: a single prior generally counts toward a second offense only if it falls inside the applicable 10-year window, while from a third offense onward all prior convictions count for life. What expungement does not do is remove the prior from that calculation.
Answering the application question
Because the conviction is not vacated, the honest answer to “has this conviction legally disappeared?” is no — the public court file is what changed. How to answer a specific employment, licensing, housing or federal application question is a decision to make with a lawyer who has read the actual question and your actual record, not a rule you can take from an article. It is worth noting that the reform bills described below would have addressed employment discrimination based on expunged convictions — and they did not pass. We cover the disclosure question in more detail in our post on telling an employer about a criminal record.
Expungement, a Pardon, and Sealing Are Three Different Things
People use these words interchangeably. Wisconsin does not.
Expungement (§ 973.015)
Governor’s pardon
Sealing
Who decides
The sentencing circuit court judge
The Governor, on review by the Pardon Advisory Board
No general adult mechanism in Wisconsin
When
At the sentencing hearing, before the sentence is served
After the sentence is completed
—
What it does
Strikes the court record; the conviction itself stands
Forgives the offense; the court file remains
—
A pardon is an executive act, not a judicial one. It is applied for through the Governor’s Pardon Advisory Board, which reviews applications for eligibility, schedules most applicants for a hearing that is open to the public, and makes recommendations to the Governor. The Board’s own pardon information page states that being scheduled for a hearing “typically has taken at least 18 months from the date the application is received,” and it is also where the current eligibility rules are published — as described there, a pardon is generally available only for a Wisconsin felony conviction, at least five years after the sentence was completed, with no pending charges and no sex-offender registration requirement. Check those requirements against that page before relying on them; the Governor’s office sets them, and they can change.
The key structural point: a pardon is forgiveness, not deletion. It does not seal or remove the court file.
Sealing, in the sense used in states with “clean slate” laws that automatically hide older convictions from public view, has no general adult equivalent in Wisconsin. For adults, § 973.015 is the mechanism, and it runs on the schedule described above.
Why the Reform You Read About Never Passed
If you have searched this topic in the last few years, you have probably read that Wisconsin “recently reformed” its expungement law — removing the age cap, allowing petitions after the fact, or both. It did not.
The cleanest proof is the statute’s own history line. On the Wisconsin Legislature’s official page for § 973.015, the amendments are listed as: 1975 c. 39; 1975 c. 189 s. 105; 1975 c. 199; 1983 a. 519; 1991 a. 189; 2003 a. 33, 50, 320; 2009 a. 28; 2011 a. 268; 2013 a. 362; 2015 a. 80, 366. The list stops in 2015. No 2025 or 2026 act appears on it.
Reform was proposed, repeatedly, and it came close enough to generate a great deal of coverage:
2021 Assembly Bill 69 — “Relating to: expungement of records of certain crimes and discrimination based on expunged conviction.” The Assembly’s Committee on Criminal Justice and Public Safety recommended passage as amended on June 8, 2021 (Ayes 14, Noes 0). In the Senate, the bill failed to concur on March 15, 2022.
2023 Assembly Bill 37 — the same title, the same core changes, including renumbering and amending § 973.015(1m)(a)1. The Assembly committee recommended passage as amended on January 18, 2024 (Ayes 15, Noes 0). In the Senate, it failed to concur on April 15, 2024.
Expungement language was also floated during the 2025–27 state budget debate. It is not in the statute either — as the history line shows, no act from the 2025–26 session amended § 973.015.
Bills are introduced every session, and one may eventually pass. Until one does, the 2015 text is the law, and it is the text a Wisconsin judge will apply to your case. As of September 2026, the strict version of § 973.015 described in this article is current law, verified against the Wisconsin Statutes.
Charged With a Crime in Madison or Middleton? Raise Expungement Before Sentencing Day
If you are reading this because you or your son or daughter has been charged, the timeline is the thing to take away. Expungement is not a step you take after the case ends. It is an argument that has to be built into how the case is resolved — what the charge is reduced to, what class of offense you plead to, what the plea agreement recommends, and what the judge hears before the sentence is announced.
That is work that happens early, and it is one of the reasons the charge you start with is not always the charge you finish with.
At Mays Law Office we defend misdemeanor and felony cases in Dane County and throughout Wisconsin. We will look at whether the stop, the search or the evidence holds up, what the State can actually prove, and — where § 973.015 is in reach — how to put the expungement question in front of the court at the right moment. We cannot promise a result in any case, and you should be wary of any lawyer who does. What we can do is make sure the opportunity is not lost by silence.
Learn more about how we handle these cases on our criminal defense page, or contact us for a free, confidential consultation and tell us how to reach you.
This article provides general legal information and is not legal advice. Reading it does not create an attorney-client relationship. Laws change and every case turns on its specific facts. Consult a licensed Wisconsin attorney about your situation.
Primary sources: Wis. Stat. § 973.015, § 939.50, § 939.51, § 343.307, § 938.355(4m); State v. Matasek, 2014 WI 27; State v. Hemp, 2014 WI 129; State v. Allen, 2017 WI 7; State v. Helmbrecht, 2017 WI App 5; State v. Arberry, 2018 WI 7; State v. Braunschweig, 2018 WI 113; State v. Lickes, 2021 WI 60; Kenosha County v. Frett, 2014 WI App 127; State v. Anderson, 160 Wis. 2d 435 (Ct. App. 1991); 2021 Assembly Bill 69 and 2023 Assembly Bill 37 bill histories.
Most first-time OWI defendants in Wisconsin assume there is nothing to defend — the machine said 0.08, so pay the ticket. After three decades practicing in Dane County’s courts — on both sides of OWI cases — I can tell you that assumption gives away real defenses in a surprising number of cases. The state’s evidence is built by human beings following detailed rules at every step — the stop, the roadside tests, the arrest, the chemical test — and when a step violates your constitutional or statutory rights, Wisconsin courts can suppress what came from it.
This page lays out the defense options that actually exist for a first offense OWI in Wisconsin — what each one challenges, and what honest outcomes look like.
Why Fight a Ticket That Isn’t a Crime?
Because it never goes away. A first offense stays on your Wisconsin driving record effectively for life — WisDOT retains alcohol-related convictions for 55 years, and no expungement removes them — and for the next 10 years it is the prior that turns any second incident into a criminal charge with mandatory jail. It also brings a 6-to-9-month revocation, a mandatory alcohol assessment, a possible year-long ignition interlock order, a three-year SR-22 filing if you need an occupational license, and a one-year commercial disqualification for CDL holders. (And a first offense is not civil at all if a minor under 16 was aboard or another person was hurt — those variants are criminal from day one.) The full picture is in what a first offense really involves — the short version is that this is the cheapest point in your life to contest an OWI, and the only chance to keep the record clean.
Challenging the Stop
An officer needs reasonable suspicion of a violation to pull you over. If the stop fails, everything after it falls. Wisconsin courts have drawn real limits here: in State v. Post, 2007 WI 60, the Wisconsin Supreme Court held that weaving within your own lane is not, by itself, automatic grounds for a stop — the whole picture has to add up. Stops built on hunches, anonymous tips without corroboration, or minor touching of a lane line are all litigable. The squad video usually settles what really happened, which is why preserving it early matters.
Challenging the Field Sobriety Tests and the PBT
The three standardized roadside tests — horizontal gaze nystagmus, walk-and-turn, one-leg stand — feed the officer’s probable cause to arrest. They are also far weaker than they look on a police report:
NHTSA’s own training materials caution that people over 65 or significantly overweight may have difficulty with the balance tests regardless of sobriety.
Knee, hip, back, and inner-ear conditions mimic “clues,” and so do cold, wind, uneven pavement, and footwear.
Officers must administer and score the tests to the NHTSA standard — improvised instructions or misscored clues are cross-examination material. In one recent case of ours, the report claimed a walk-and-turn clue the video showed was scored against the manual.
The roadside preliminary breath test (PBT) is a screening device. Under Wis. Stat. § 343.303, its result helps a court review probable cause — it is not admissible to prove intoxication at your OWI trial. The same limit applies to the roadside oral-fluid (saliva) screening Wisconsin authorized in 2026. And how the PBT was obtained matters on the right facts: an improperly obtained PBT was one of the three granted motions in the first-offense dismissal we published. We break down the roadside battery in common issues with field sobriety tests.
Challenging the Breath or Blood Test
The evidentiary test — the number on the citation — has its own rulebook:
Breath tests require an observation period of at least 20 minutes before the sample (Wis. Admin. Code Trans 311.06) and a maintained, calibrated instrument. The observation logs and maintenance records are discoverable, and gaps in them are defenses.
Blood draws are Fourth Amendment searches. Absent your actual consent or true exigent circumstances, police need a warrant — the U.S. Supreme Court said so in Missouri v. McNeely (2013), and the Wisconsin Supreme Court struck down the statute’s “incapacitated driver” consent shortcut in State v. Prado (2021). Chain of custody and lab analysis are also fair game.
Timing. Wisconsin’s presumptions attach to tests taken within three hours of driving (Wis. Stat. § 885.235). Beyond that window the state needs expert testimony to establish what the number proves — and even inside it, a rising-alcohol curve can, on the right facts and with expert support, put your level at the time of driving below the limit when the test came long after the stop.
The alternative-test right is the sleeper. After you submit to the agency’s primary test, Wisconsin law entitles you, on request, to a second test — one the agency must provide free of charge, or one you arrange at your own expense (Wis. Stat. § 343.305(4)–(5)). When police promise or deny that requested second test and fail to make a diligent effort to provide it, courts can suppress the primary result. That exact violation was one of the three motions that got a first-offense OWI dismissed for our client in twelve minutes of hearing time.
If You Refused: the Refusal Hearing
A refusal starts its own case against your license — and its own opportunity. You have 10 days from the Notice of Intent to Revoke to demand a refusal hearing (Wis. Stat. § 343.305(9)). The hearing’s issues are narrow — whether the officer had probable cause, whether you were properly read the Informing the Accused advisories, whether you actually refused, and whether the refusal was due to a physical inability unrelated to alcohol — but requesting it stops the automatic revocation from taking effect until a judge rules, and it puts the arresting officer under oath on the record — testimony the rest of the defense can use. More in what happens if you refuse a breathalyzer in Wisconsin.
Suppression Works in Civil OWI Cases
A first offense being civil does not weaken these defenses — constitutional and statutory violations are litigated by motion in municipal and circuit court alike. When a motion is granted, the state’s case often collapses: no lawful stop means no evidence; no valid test means no number. And if the case must be tried, the forum is a choice you make early: in a municipal-court case, a written jury demand plus the jury fee within 10 days of a not-guilty plea moves the case to circuit court for a six-person jury, while state-cited cases start in circuit court, where the same 10-day demand rule applies. The mechanics and deadlines are covered in what happens at your first OWI court appearance.
What Are the Realistic Outcomes?
Honesty matters more than marketing here:
Dismissal happens when suppression guts the case or the state cannot prove its elements — it is the exception, not the rule, and it is earned by finding real defects, as in the three-motion dismissal we published. A dismissal or acquittal also reaches the license side: the administrative suspension is purged from your record once the court reports the outcome to the DOT (Wis. Stat. § 343.23(4); different rules apply to commercial drivers).
Amendment to a lesser violation is tightly policed in Wisconsin: a prosecutor seeking to amend or dismiss an OWI must apply to the court and state the reasons, and the court may approve only if doing so is consistent with the public’s interest in deterring drunk driving (Wis. Stat. § 967.055). Translation: charges get amended when the evidence has a genuine problem, not as a courtesy — which is another reason the defense work above is what moves cases.
Trial puts the state to its proof — “clear, satisfactory and convincing” evidence in a civil forfeiture case. Bench or jury is a strategic call we make together.
A managed plea — when the evidence holds up, the remaining work is protecting your license timeline (occupational eligibility, interlock scope, assessment scheduling) so the consequences land as lightly as the law allows.
What will not work: “I only had two beers,” “I drive better than I test,” or waiting for the case to resolve itself — we keep a candid list in defenses that won’t protect you. No lawyer can promise a result; what a defense lawyer promises is that every rule the state had to follow gets checked.
Frequently Asked Questions
Can a first offense OWI be dismissed in Wisconsin?
Yes, when the evidence fails legally — an invalid stop, a defective arrest, a suppressed test. Wisconsin law requires prosecutors to justify any OWI dismissal or amendment on the record, so dismissals come from defense work, not negotiation charm.
Is it worth getting a lawyer for a first OWI?
A first offense is the one conviction you can still prevent — the driving-record entry it creates is permanent. A defense review costs nothing here (consultations are free), and the deadlines it protects — the 10-day administrative review, the 10-day refusal hearing, the 10-day jury demand — expire fast whether or not you use them.
Should I have refused the tests?
That decision is behind you, and both paths are defensible — a test case has the number to attack; a refusal case has the hearing and its own procedures. What matters now is acting inside the windows that are still open.
Do these defenses apply to the PAC charge too?
Largely, yes — a defective stop or arrest undermines both citations. But the two charges have different elements: knocking out the test result can defeat the PAC while the state still argues impairment on the OWI, which is why a full defense addresses both.
Want Your First-Offense Case Actually Reviewed? Talk to Mays Law Office.
Attorney Stephen E. Mays began his career in the Dane County District Attorney’s office and has since won OWI cases at the municipal, circuit, appellate, and Wisconsin Supreme Court levels. If you were arrested in Madison, Middleton, or anywhere in Dane County, bring us the citation and the notices — the review is free and confidential. Start with how we defend OWI cases, read about Attorney Mays, or contact us and tell us how we can reach you.
This article provides general legal information about Wisconsin law and is not legal advice. Case results depend on their specific facts, and past results do not guarantee future outcomes. Consult a licensed Wisconsin attorney about your situation.
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