By Stephen E. Mays, Mays Law Office · October 2026
Can police do a saliva test for drugs in Wisconsin? Yes. Since March 15, 2026, Wis. Stat. § 343.303 (2025 Wisconsin Act 99) lets an officer request breath, oral fluid, or both before an arrest, on a DOT-approved device. The result can support probable cause to arrest, not prove impairment, and the sample must be destroyed or returned. Mays Law Office (Middleton) defends drug-OWI charges.
For decades, Wisconsin’s roadside screening test meant one thing: a breath sample given before any arrest. In 2026 the Legislature changed that. A driver an officer has probable cause to believe is operating while intoxicated can now be asked for a saliva sample instead of, or along with, a breath sample, and the same rule reaches boats, snowmobiles, ATVs and off-highway motorcycles. A second 2026 law rewrote the warning officers read before the evidentiary blood, breath or urine test, and a third, which changes ignition interlock rules, is on the books but not yet in effect.
This article explains what the new roadside test is, what its result can and cannot be used for, what happens next, and how a drug-OWI charge is actually proven. Every statute quoted below was verified against the Wisconsin Statutes as the Legislature publishes them, updated through October 1, 2026.
What Act 99 Changed in § 343.303: Breath, Oral Fluid or Both, Before an Arrest
2025 Wisconsin Act 99 (2025 Senate Bill 678) was enacted March 13, 2026 and published March 14, 2026. It does not set its own effective date, so under Wis. Stat. § 991.11 it took effect “on the day after its date of publication”: March 15, 2026. The Legislative Council’s memo on the act states the same effective date.
The heart of the change is one phrase in Wis. Stat. § 343.303, now titled “Preliminary screening test.” The officer, “prior to an arrest, may request the person to provide a sample of his or her breath or oral fluids, or both, for a preliminary screening test using a device approved by the department for this purpose.”
Three details in that sentence matter:
There is a threshold. The request is allowed when the officer “has probable cause to believe that the person is violating or has violated” the OWI statute, § 346.63(1) or (2m), or certain related offenses. Commercial drivers are covered by a separate trigger: the officer may also ask if the officer “detects any presence of alcohol, a controlled substance, controlled substance analog or other drug, or a combination thereof” on a person driving or on duty with a commercial motor vehicle.
It happens before an arrest. This is a screening step that helps the officer decide what to do next. It is not the formal chemical test.
It requires an approved device. “Department” here means the Wisconsin Department of Transportation (§ 340.01(12)). The statute authorizes oral-fluid screening only with a device that department approves. Wisconsin’s administrative rule on approved testing instruments, Wis. Admin. Code ch. Trans 311, addresses breath-alcohol instruments and says nothing about oral fluids, so whether an approved saliva device was actually used at your stop is a fact to confirm in your own case.
The same rule on the water, the trails and the snow
Act 99 made matching changes for all-terrain and utility terrain vehicles (§ 23.33(4g)), off-highway motorcycles (§ 23.335(12)(e)), boats (§ 30.682) and snowmobiles (§ 350.102). Each of those sections says a person “shall provide a sample of his or her breath or oral fluids, or both, for a preliminary screening test” when an officer with probable cause asks before an arrest, and each then adds, in nearly the same words, that “[t]here is no penalty for a violation” of that requirement. Each also carries its own version of the destroy-or-return rule described below.
Can Police Do a Saliva Test for Drugs in Wisconsin? What the Result Can and Cannot Do
The screening result has two permitted uses. Under § 343.303, the officer may use it “for the purpose of deciding whether or not the person shall be arrested” for an OWI-related offense “and whether or not to require or request chemical tests as authorized under s. 343.305 (3).”
Its use in court is narrow:
“The result of the preliminary screening test shall not be admissible in any action or proceeding except to show probable cause for an arrest, if the arrest is challenged, or to prove that a chemical test was properly required or requested of a person under s. 343.305 (3).”
In plain terms, a roadside saliva result can help justify the arrest and the request for a formal test. It is not evidence that you were impaired, and it is not the test result the State uses to try the case.
The destroy-or-return rule
Act 99 also limits what happens to the saliva sample itself. “A law enforcement officer may collect and retain a sample of a person’s oral fluids only to the extent necessary to perform a preliminary screening test under this section and shall destroy the sample, or return the sample to the person, after conducting the preliminary screening test.” And: “A law enforcement officer may not collect or retain a sample of a person’s oral fluids under this section for any purpose other than a preliminary screening test.” If a saliva sample from your stop was kept, sent to a lab or used for anything else, that is worth raising with your lawyer.
Declining the roadside screen versus refusing the evidentiary test
These are two different requests with two different sets of rules. For the roadside screen, § 343.303 says: “The general penalty provision under s. 939.61 (1) does not apply to a refusal to take a preliminary screening test.” The boating, snowmobile, ATV and off-highway motorcycle sections say there is “no penalty” for not providing the screening sample.
The evidentiary test that may follow an arrest is a different matter, with license consequences explained in the next section. Whether to provide any sample is a decision that depends on the facts of the moment, and this article does not tell you to do or refuse either one.
After the Screen: The Evidentiary Test, the Act 195 Warning, and What Refusing Costs
If the officer arrests you for OWI, the next step is the evidentiary test under Wis. Stat. § 343.305. “Upon arrest,” the officer “may request the person to provide one or more samples of his or her breath, blood or urine” (§ 343.305(3)(a)). Section 343.303 itself makes the sequence explicit: “Following the screening test, additional tests may be required or requested of the driver under s. 343.305 (3).” For a suspected drug OWI, the evidentiary sample is the one that matters at trial, and a blood sample may be drawn only by a physician, registered nurse, medical technologist, physician assistant, phlebotomist or other authorized medical professional, or a person acting under a physician’s direction (§ 343.305(5)(b)).
2025 Wisconsin Act 195 rewrote the warning
2025 Wisconsin Act 195 (2025 Assembly Bill 856) was enacted April 3, 2026 and published April 4, 2026, and the Legislative Council’s memo gives its effective date as April 5, 2026. Its title describes it as “relating to: repealing unconstitutional provisions related to operating while intoxicated.” It repealed § 343.305(3)(ar) and (3)(b) and rewrote the statement in § 343.305(4) that an officer must read when requesting the evidentiary test. The current text reads:
“You have either been arrested for an offense that involves driving or operating a motor vehicle after using alcohol or drugs, or both, or you are suspected of driving or being on duty time with respect to a commercial motor vehicle after using alcohol or drugs, or both.
This law enforcement agency now wants to test one or more samples of your breath, blood or urine to determine the concentration of alcohol or drugs in your system. If any test shows more alcohol in your system than the law permits while driving or a detectable amount of a restricted controlled substance, your operating privilege will be suspended. If you refuse any requested test, your operating privilege will be revoked and you will be subject to other penalties. The test results or the fact that you refused testing can be used against you in court.
If you take all the requested tests, you may also choose to take the alternative test that this law enforcement agency provides free of charge. You may also have a test conducted by a qualified person of your choice at your expense. You, however, will have to make your own arrangements for that test.
If you have a commercial driver license or were operating a commercial motor vehicle, other consequences may result from positive test results or from refusing testing, such as being placed out of service or disqualified.”
Two other changes are worth knowing. The former subsection (3)(b), which addressed drivers who are unconscious or otherwise unable to withdraw consent, is gone, so a blood draw from a driver who cannot respond now needs some other lawful basis, such as a warrant; the statute itself says it “does not limit the right of a law enforcement officer to obtain evidence by any other lawful means” (§ 343.305(3)(c)). And the act’s marked-up text shows what changed in the warning itself: “while under the influence of” became “after using,” the former clause about a driver involved in an accident causing death or great or substantial bodily harm was struck, “a detectable amount of a restricted controlled substance” was added as a ground for suspension, and “[i]f you refuse any requested test” replaced the older refusal wording.
What refusing the evidentiary test costs
Refusing a test requested under § 343.305(3)(a) starts a separate refusal case. The officer prepares a notice of intent to revoke, and the notice tells the driver “[t]hat the person may request a hearing on the revocation within 10 days” (§ 343.305(9)(a)4.). If the court finds an improper refusal, or if no hearing is requested in time, the court revokes the operating privilege for one year for a first improper refusal, with longer revocations of two and three years as prior offenses are counted, and those periods “are doubled” if a passenger under 16 was in the vehicle (§ 343.305(10)(b)). An improper refusal also requires the court to order an ignition interlock restriction, a 24/7 sobriety program, or both (§ 343.301(1g)). And a refusal finding does not end the OWI case: the statute “does not preclude the prosecution of the person for violation of s. 346.63” (§ 343.305(9)(d)). Our post on what happens if you refuse a breathalyzer test in Wisconsin covers the refusal hearing in more detail.
Why a Saliva “Positive” Is Not a Conviction
A roadside screen can lead to an arrest, but a drug-OWI charge is proven, if at all, with admissible evidence under § 346.63. There are two main routes, often charged together.
The restricted-controlled-substance charge, § 346.63(1)(am)
This charge applies when “[t]he person has a detectable amount of a restricted controlled substance in his or her blood.” The word is blood, not saliva. “Restricted controlled substance” is defined in § 340.01(50m), and the list is narrower than many people assume:
a schedule I controlled substance “other than a tetrahydrocannabinol”;
“[t]he heroin metabolite 6-monoacetylmorphine”;
a controlled substance analog of a schedule I substance;
“[c]ocaine or any of its metabolites”;
“[m]ethamphetamine”; and
“[d]elta-9-tetrahydrocannabinol, excluding its precursors or metabolites, at a concentration of one or more nanograms per milliliter of a person’s blood.”
That last line matters for cannabis cases: the statute counts delta-9-THC itself, measured in blood at one nanogram per milliliter or more, and excludes its metabolites. The statute also creates a defense for a defendant who proves “by a preponderance of the evidence” a valid prescription for methamphetamine or one of its metabolic precursors, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol at the time of the incident (§ 346.63(1)(d)).
The impairment charge, § 346.63(1)(a)
The other route requires proof that the driver was “under the influence of an intoxicant, a controlled substance, a controlled substance analog” or a combination, or “under the influence of any other drug to a degree which renders him or her incapable of safely driving.” That “any other drug” language is not limited to the restricted list, so it can reach medications, but only on proof that the drug made the driver incapable of safely driving. Our post on OWI versus PAC charges in Wisconsin explains how an impairment count and a numeric count work side by side.
The two theories can be charged together, but if the State proves more than one for the same incident, “there shall be a single conviction for purposes of sentencing” (§ 346.63(1)(c)).
The questions that usually decide a drug-OWI case
Because the roadside result cannot prove impairment, the case turns on the steps around it. In a drug-OWI defense, we examine whether the stop itself was lawful; whether the officer had probable cause to believe an OWI violation was occurring before requesting the screen; whether any oral-fluid device used was one the Department of Transportation approved; whether the § 343.305(4) warning was read as the statute now requires; who drew the blood and how the sample was handled and tested; and, on an impairment charge, what the officer actually observed. None of those questions has a guaranteed answer, but each is a place to test the State’s case.
Penalties: the same ladder as any OWI
A drug-OWI follows the same penalty structure as an alcohol OWI, tied to the offense number. A first offense, without aggravating factors such as a passenger under 16, is a civil forfeiture: the driver “[s]hall forfeit not less than $150 nor more than $300” (§ 346.65(2)(am)1.), with license and other consequences on top. Later offenses carry escalating fines and jail, and a fourth offense is a Class H felony (§ 346.65(2)(am)4.). See our guide to a first-offense OWI in Wisconsin for the full picture.
Act 210’s interlock changes are not law until September 1, 2027
You may also read about 2025 Wisconsin Act 210 (2025 Senate Bill 248), enacted April 8, 2026 and published April 9, 2026, which overhauls ignition interlock and occupational-license rules. It is not in effect yet. Its Section 18 provides that it “takes effect on the first day of the 12th month beginning after the date specified in the notice published in the Wisconsin administrative register,” and the Wisconsin Statutes now print its changes with the note “eff. 9-1-27 by 2025 Wis. Act 210.” Until then, today’s interlock rules apply; see our guide to ignition interlock requirements in Wisconsin.
If You Were Asked for a Saliva Sample: What to Write Down Now
Details fade quickly after a stop, and in these cases the details are the defense. As soon as you can, write down:
the time and place of the stop, and the reason the officer gave for it;
what the officer said before asking for a saliva or breath sample, and whether you provided one;
what you saw happen to the saliva sample afterward, if you provided one;
whether you were arrested, and what test was requested afterward (breath, blood or urine), where, and by whom;
whether the officer read you a warning before the evidentiary test, and whether you received a notice of intent to revoke; and
every medication you had taken, with doses and times.
If you received a notice of intent to revoke after a refusal, mark the date. The statute gives you 10 days to request a hearing, and that clock does not wait.
Charged With a Drug OWI in Wisconsin? Talk With Mays Law Office
Roadside saliva screening is new in Wisconsin, and new procedures are where mistakes happen: a device that was not approved, a sample that was not destroyed or returned, a warning read from an outdated form, or a blood result that does not show what the State says it shows. We examine whether the stop and every test that followed were lawful, and we pursue the defenses the facts support.
Stephen E. Mays worked in the Dane County District Attorney’s office before becoming a defense attorney, and he now defends OWI and criminal cases throughout Wisconsin from our Middleton office. To schedule a free, confidential consultation, contact us online and tell us how we can reach you, or learn more about our OWI defense practice. We cannot promise a result, but we can make sure the State is held to what the Wisconsin Statutes actually require.
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.
The court date printed on a Wisconsin OWI citation is rarely immediate — and for a first offense, that first appearance is short, procedural, and, if you understand what it is for, nothing to fear. But two things about it surprise almost everyone: the most important deadlines in your case expire before that date, and what you say at the appearance can lock in or give away your right to a jury.
Here is what actually happens at a first OWI court appearance in Wisconsin, what happens after it, and how the sequence runs in Madison, Middleton, and the rest of Dane County, where our office defends these cases.
Which Court Will You Be In?
Wisconsin routes a first-offense OWI — a civil violation — based on the law behind the citation:
City police, city ordinance → municipal court. A first offense cited by the Madison Police Department is handled by the Madison Municipal Court; a Middleton PD citation goes to the Middleton Municipal Court. Nearly every Dane County suburb — Sun Prairie, Verona, Fitchburg, Monona, Stoughton — runs or shares a municipal court for these citations.
Sheriff or State Patrol, state statute → circuit court. Those citations are filed as civil forfeiture actions in Dane County Circuit Court at the courthouse in downtown Madison.
Any criminal version → circuit court. If a minor under 16 was in the vehicle, the intoxicated driving injured another person, or a prior OWI-related offense counts against you (a 10-year window for a second offense; lifetime counting from a third), the case is criminal, prosecuted by the District Attorney in circuit court — and the first appearance is a formal initial appearance in a criminal case.
The Deadlines That Come Before Your Court Date
By the time of a typical first appearance, these windows have already closed unless someone acted:
10 days to request an administrative review if you took the test and blew 0.08 or higher (13 days, excluding weekends and holidays, if the notice was mailed) — otherwise a 6-month administrative suspension starts when the 30-day temporary license on your Notice of Intent to Suspend expires (Wis. Stat. § 343.305(7)–(8)). That request goes to the Wisconsin DOT, not to the court.
10 days to request a refusal hearing if you declined testing (Wis. Stat. § 343.305(9)) — otherwise a revocation of at least one year takes effect, separate from the OWI charge itself.
Neither request happens at your court appearance, and the court will not raise them for you. This is the concrete reason to involve a lawyer in week one rather than the night before court.
What Happens at the First Appearance for a Civil First Offense?
It is brief — usually a few minutes. The judge or court official confirms who you are, confirms the charge (typically OWI and its companion PAC citation), and asks for your plea:
Not guilty keeps every option open. The court schedules a pretrial conference with the prosecutor, and your attorney can then obtain the police reports, squad and body camera video, and test records.
Guilty or no contest ends the case that day: conviction, forfeiture, revocation, assessment — everything described in our first-offense guide, permanently on your record.
Three practical points for a first offense:
You generally do not have to appear in person. Because the case is civil, Wisconsin law lets a municipal-court defendant make the initial appearance by filing a written not-guilty response before the hearing time (Wis. Stat. § 800.035), and courts accept an appearance through your attorney. Check the citation’s instructions — and never simply skip the date: in a forfeiture case the court can enter a default judgment against you for not answering, which is a conviction with none of your defenses heard.
No bail, no booking, no jail on this charge. A standard first offense is not a crime; the appearance is about the plea and scheduling.
Say nothing about the facts. The plea is the only substantive thing communicated. Explanations about the stop or the drinking belong in negotiations or motions, not on the record at appearance one.
Bench Trial or Jury — the 10-Day Decision After Your Plea
Municipal courts in Wisconsin do not hold jury trials — a contested case there ends in a bench trial, decided by the municipal judge. If you want a jury for a first-offense OWI, Wisconsin law gives you a transfer mechanism with a hard clock:
Enter a not guilty plea in municipal court;
File a written jury demand within 10 days of that plea; and
Pay the six-person jury fee — $6 per juror, $36 in total (Wis. Stat. § 814.61(4)).
The case then transfers to Dane County Circuit Court, where it is heard by a six-person jury. Miss the window and the right is gone — the case stays in municipal court for a bench trial, with a later appeal to circuit court as the fallback (an appeal that has its own short deadline and its own rules). In a case that starts in circuit court, the same rule applies through Wis. Stat. § 345.43: a written jury demand plus the jury fee within 10 days of the not-guilty plea. Whether a jury actually helps is a strategy call — we cover how we make it in requesting a jury trial in a Wisconsin OWI case.
One more difference worth knowing: because a first offense is civil, the city or state does not have to prove it beyond a reasonable doubt. The standard is “clear, satisfactory and convincing” evidence (Wis. Stat. §§ 800.08(3), 345.45) — lower than criminal court, which is exactly why the suppression motions described below carry so much weight.
What Happens After the First Appearance?
A contested first-offense case follows a predictable arc over the next few months:
Pretrial conference. Your attorney meets the city attorney or prosecutor, reviews the evidence, and tests whether the case should resolve or proceed.
Motions. If the stop, the field sobriety testing, the arrest, or the chemical test was legally defective, your attorney files suppression motions — fully available even though the case is civil. Our office recently had a first-offense OWI dismissed twelve minutes into the motion hearing after filing three of them.
Trial. Bench trial in municipal court, or a six-person jury in circuit court if the demand was made in time.
Madison Municipal Court — City-County Building, 210 Martin Luther King Jr. Blvd., Madison. Handles first-offense OWI citations written by Madison PD.
Middleton Municipal Court — 7341 Donna Dr., Middleton. Handles City of Middleton citations.
Dane County Circuit Court — Dane County Courthouse, 215 S. Hamilton St., Madison. Hears state-cited forfeiture cases, jury transfers, and every criminal OWI.
Arrive early, bring your citation and any DOT notices you received, and dress as you would for a job interview. If we appear for you, you may not need to be there at all — we will tell you exactly which dates require you.
Frequently Asked Questions
Do I have to go to my first OWI court date?
For a civil first offense, usually not in person — a written not-guilty plea or an appearance through your attorney typically satisfies it. What you cannot do is ignore the date: non-appearance in a forfeiture case invites a default judgment.
Will I be arrested or jailed at the appearance?
Not on this charge. A standard first offense is a civil matter — it carries no bail and no custody. Criminal OWI cases (minor passenger, injury to another person, countable priors) follow criminal procedure instead.
Should I plead guilty at the first appearance to get it over with?
That decision is permanent — an OWI conviction stays on your Wisconsin driving record for decades, with no expungement path — and it is being made before anyone has reviewed the video, the testing, or the paperwork for defects. Plead not guilty, have the evidence examined, and decide with complete information. You can always resolve the case later; undoing a conviction after you plead is a far harder, discretionary process.
How soon after the arrest is the court date?
It depends on the court’s calendar — often a matter of weeks. But the 10-day license deadlines run from the dates on the DOT notices you were handed, not from the court date.
Facing Your First OWI Appearance in Dane County? Talk to Mays Law Office.
Attorney Stephen E. Mays began his career in the Dane County District Attorney’s office and has spent three decades practicing in Dane County’s courts, with OWI wins at the municipal, circuit, appellate, and Wisconsin Supreme Court levels. Before your court date, get the deadlines protected and the evidence requested. We offer a free, confidential consultation: see how we defend OWI cases 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. Court procedures vary by municipality and change over time. Consult a licensed Wisconsin attorney about your situation.
A first offense OWI in Wisconsin is a civil violation, not a crime — no jail, no criminal record. That is the part most people hear first, and it is true. What almost nobody tells you at the roadside is that the deadlines that decide your driver’s license start running within days of the arrest, and that this “civil ticket” follows you for the rest of your life if you simply pay it.
Our office has defended OWI charges in Madison, Middleton, and the surrounding Dane County communities for decades. This page explains what a first offense actually involves under Wisconsin law: the penalties, what happens to your license, what it really costs, and the decisions you have to make in the first ten days.
Is a First OWI a Crime in Wisconsin?
No — with important exceptions. Wisconsin is the only state that treats a standard first-offense OWI as a civil forfeiture rather than a criminal charge. Under Wis. Stat. § 346.65(2)(am)1, the penalty is a forfeiture of $150 to $300. There is no jail time, and the violation does not create a criminal record.
A first offense becomes a criminal charge when any of the following is true:
A passenger under 16 was in the vehicle. The charge becomes a criminal offense punishable by a $350 to $1,100 fine and 5 days to 6 months in jail (Wis. Stat. § 346.65(2)(f)1).
You injured someone. Causing injury to another person while operating intoxicated is a criminal charge carrying a $300–$2,000 fine and a mandatory 30 days to one year in jail (Wis. Stat. § 346.65(3m)); causing great bodily harm or death is a felony (Wis. Stat. §§ 940.25, 940.09).
You have a prior. An OWI-related conviction, suspension, or revocation within the last 10 years makes the new charge a criminal second offense.
Most people arrested for a first OWI are actually cited for two violations from the same stop: OWI (driving under the influence, Wis. Stat. § 346.63(1)(a)) and PAC (operating with a prohibited alcohol concentration of 0.08 or more, § 346.63(1)(b)). They are defended together, and a guilty finding on both counts as one conviction for sentencing and prior-offense counting. We explain the distinction in OWI vs. PAC: what’s the difference?
What Are the Penalties for a First Offense OWI?
For a standard first offense (no priors, no minor passenger, no injury), a conviction carries:
Forfeiture of $150–$300 plus a mandatory $535 driver improvement surcharge (Wis. Stat. § 346.655) and court costs.
Driver’s license revocation of 6 to 9 months (Wis. Stat. § 343.30(1q)).
A mandatory alcohol and drug assessment (AODA) and a driver safety plan you must complete — this applies to every OWI, including a first offense.
An ignition interlock device (IID) if your test result was 0.15 or higher, or if you refused testing — for at least one year (Wis. Stat. § 343.301). The order works two ways: the device goes on the vehicles registered to you, and your license only permits you to drive IID-equipped vehicles. While it lasts, your legal limit drops to 0.02. A court can exempt a vehicle if equipping all of them would cause undue financial hardship (§ 343.301(1m)(a)), but that is discretionary, never automatic.
Proof of insurance (SR-22) filing if you want an occupational license — maintained for three years — which typically means paying high-risk rates.
Occupational licenses exist for exactly this situation: a restricted license that lets you drive for work, school, medical care, and household duties while revoked — up to 12 hours a day and 60 hours a week, for the hours, purposes, and counties you list in your application. For a standard first-offense revocation or administrative suspension you are eligible to apply at any time (Wis. Stat. §§ 343.30(1q)(b)2, 343.305(8)(d)); a test refusal currently means waiting out the first 30 days of its one-year revocation. (A new law, 2025 Wisconsin Act 210, will eventually end that refusal wait in exchange for stricter interlock rules — it is not yet in effect, so the current rules above govern.) Details in our occupational license guide.
What Does a First OWI Actually Cost?
The forfeiture is the smallest number on the bill. A realistic tally for a first offense with a test result of 0.15 or higher looks like this:
Forfeiture: $150–$300 (set by statute)
Driver improvement surcharge: $535 (set by statute)
License reinstatement fee: $200 (set by statute)
AODA assessment: roughly $165–$500 depending on the county (about $300 in Dane County)
Ignition interlock (if ordered): WisDOT estimates roughly $1,500 a year for installation, monthly rental, and servicing
Insurance: if you need an occupational license, the SR-22 filing plus three years of high-risk premiums — the increase depends entirely on your insurer and record
Add it up and the real cost of this “civil ticket” runs well into the thousands of dollars. The statutory figures above are fixed; the assessment, interlock, and insurance numbers vary by county, vendor, and carrier — your numbers will differ.
What Happens to Your License — and the 10-Day Deadline
Two separate tracks can take your license after a first-offense arrest, and both start before you ever see a courtroom.
If you took the test and the result was 0.08 or higher: the officer gives you a Notice of Intent to Suspend. Your license will be administratively suspended for 6 months (Wis. Stat. § 343.305(7)) when the 30-day temporary license on that notice runs out. You have 10 days from the notice (13 days, excluding weekends and holidays, if it was mailed) to request the administrative review that can stop that suspension — the request goes to the Wisconsin DOT, not to the court. This suspension track runs whether or not you have been convicted of anything.
If you refused the test: the officer gives you a Notice of Intent to Revoke. You have 10 days to request a refusal hearing in court (Wis. Stat. § 343.305(9)). Miss it, and your license is revoked for at least a year, an ignition interlock is required, and the refusal is treated separately from — and in addition to — the OWI charge itself. What happens next is covered in what happens if you refuse the breathalyzer in Wisconsin.
These deadlines are the single most common thing first offenders lose by waiting. Requesting the review or hearing costs little, preserves your options, and in a refusal case lets your attorney question the arresting officer under oath early in the case.
Does a First OWI Stay on Your Record?
Effectively forever. There is no expungement path for a first-offense OWI — the expungement statute (Wis. Stat. § 973.015) does not reach civil forfeitures — and WisDOT retains alcohol-related convictions on your driving record for 55 years. First offenses are common — Wisconsin recorded nearly 26,000 OWI convictions in 2024, per WisDOT records — but common does not mean harmless. The permanence has three practical consequences:
The 10-year rule. A second offense within 10 years of the first is a criminal misdemeanor with mandatory jail. Your first offense is the clock that makes that possible.
Lifetime counting. From a third offense on, every prior OWI in your lifetime counts toward penalties — there is no washout. A fourth offense is a felony regardless of how old the priors are.
Commercial drivers. A first OWI conviction — even in your personal vehicle — disqualifies a CDL for one year (three years if hauling placarded hazmat). A second means lifetime disqualification (Wis. Stat. § 343.315).
One distinction worth knowing: a driver under 21 cited under Wisconsin’s absolute sobriety rule (any alcohol above 0.00, Wis. Stat. § 346.63(2m)) faces a $200 forfeiture ($400 if a passenger under 16 was aboard) and a 3-month suspension — and that violation is not a countable prior offense. An under-21 driver at 0.08 or above, though, faces the standard adult OWI/PAC charges.
Where Will Your Case Be Heard in Dane County?
It depends on the law behind the citation. A first-offense OWI written by a city police department under a local ordinance — Madison PD, Middleton PD — is prosecuted in that city’s municipal court. A citation written under the state statute, typically by the Dane County Sheriff’s Office or the State Patrol, goes to Dane County Circuit Court in Madison. Criminal versions of a first offense (minor passenger, injury) always go to circuit court.
The venue matters: municipal court trials are decided by a judge alone, and moving the case to a jury requires a written demand and a jury fee within 10 days of your not-guilty plea. We walk through the whole sequence — including what happens at your initial appearance and the deadlines that follow — in what happens at your first OWI court appearance.
Can You Fight a First Offense OWI?
Yes — and because the conviction is permanent, a first offense is often the most important one to fight. Every element of the state’s case can be examined: the reason for the stop, the field sobriety testing, the preliminary breath test, the arrest itself, and the chemical test procedures. When the police cut corners, courts suppress the evidence. Our office recently had a first-offense OWI and PAC dismissed after filing three suppression motions — the unlawful arrest, an improperly obtained PBT, and a denied alternative test.
Not for a standard first offense — it is a civil violation with no jail penalty. Jail enters the picture only if a minor under 16 was in the car, another person was injured, or a countable prior OWI offense is on your record.
Should I just pay the ticket?
Paying is a conviction: a permanent driving-record entry, a 6-to-9-month revocation, the surcharge, the assessment, an SR-22 filing when you need an occupational license, and a loaded gun for a criminal second offense during the next 10 years. At minimum, have the evidence reviewed before you decide — consultations here are free.
Do I need a lawyer for a civil OWI?
Because a first offense is civil, the state will not appoint one — but the deadlines, the administrative suspension, and the suppression issues are the same machinery used in criminal OWI cases. An attorney can request the hearings in time, obtain the squad video and test records, and identify the defenses before the plea deadline.
How long does a first-offense OWI case take?
A contested case commonly runs several months from citation to resolution — pretrial conference, motions, and, if needed, trial. The license clocks run on their own schedule, which is why the 10-day requests come first.
Arrested for a First OWI in Madison or Middleton? Talk to Mays Law Office.
Attorney Stephen E. Mays has spent three decades practicing in Dane County’s courts — he 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. The first ten days decide more than most people realize. We offer a free, confidential consultation: read about how we defend OWI cases, learn more 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. Statutes and penalties change, and every case is different. Consult a licensed Wisconsin attorney about your situation.
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