OWI vs. PAC: What’s the Difference in Wisconsin?

While most states have DUI laws, Wisconsin law does not define drunk driving as “driving under the influence.” Instead, the Wisconsin Statutes establish two different drunk driving-related offenses. If you get pulled over for drunk driving in Wisconsin, you may be charged with either: (i) “operating while intoxicated” (or “OWI”); and, (ii) driving with a “prohibited alcohol concentration” (or “PAC”).

Although OWI and PAC are both drunk driving charges, they are very different. They require the prosecution to prove different elements, and they require drivers to assert different defenses. As a result, if you’ve been arrested for drunk driving, you need to know whether you are being charged with OWI or PAC—and you need to build your defense strategy accordingly.

What is OWI in Wisconsin?

Let’s start with OWI. The offense of operating while intoxicated is established in Section 346.63(1)(a) of the Wisconsin Statutes. This section of the law states:

“No person may drive or operate a motor vehicle while . . .[u]nder the influence of an intoxicant . . . 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 . . . .”

As you can see, an OWI charge does not require proof of your blood alcohol concentration (BAC). If you have been drinking and your alcohol consumption “renders [you] incapable of safely driving,” you can be charged with OWI regardless of whether your BAC is over the legal limit.

This means two things. First, you can be charged with OWI if the police don’t record your BAC. If you refuse the breath test, or if the arresting officer does not test your BAC for any other reason, you can still face an OWI charge.

Second, if you take the breathalyzer and blow below the legal limit, you can face an OWI charge in this scenario as well. If the officer determines that you were driving unsafely and that alcohol consumption is likely to blame, he or she can charge you with an OWI. Studies have found that, “virtually all drivers are impaired regarding at least some driving performance measures at a 0.05 BAC,” and that “[t]he risk of being involved in a crash increases significantly at 0.05 BAC and above.” Thus, even if your BAC is below 0.08%, the officer may still determine that you are impaired and incapable of driving safely.

What is PAC in Wisconsin?

Now, let’s take a look at PAC. The offense of driving with a prohibited alcohol concentration is established in Section 346.63(1)(b) of the Wisconsin Statutes. This section of the law states:

“No person may drive or operate a motor vehicle while . . . [t]he person has a prohibited alcohol concentration.”

This, obviously, raises an important question: What is a “prohibited alcohol concentration”? This term is defined in Section 340.01(46m) of the Wisconsin Statutes:

“‘Prohibited alcohol concentration means one of the following: If the person has 2 or fewer prior convictions, suspensions, or revocations . . . an alcohol concentration of 0.08 or more[; or,] If the person is subject to an order under s. 343.301 [requiring use of an ignition interlock device] or if the person has 3 or more prior convictions, suspensions or revocations, . . . an alcohol concentration of more than 0.02.”

So, for most people, a “prohibited alcohol concentration” is a BAC of 0.08%. However, if you have (or are supposed to have) an ignition interlock device in your vehicle, or if you have three or more prior DUIs, you can be arrested for driving with a BAC above 0.02%.

Note that a PAC charge does not require evidence of actual impairment. In other words, even if you are still capable of driving safely, you can be found guilty of PAC if your BAC is over the legal limit. This is what is known as a “strict liability” offense. If you break the law, it doesn’t matter whether you put anyone’s safety at risk.

Recap: OWI vs. PAC

So, to recap, what is the difference between OWI and PAC in Wisconsin? While OWI and PAC are both drunk driving offenses, prosecutors can prove them in different ways:

• Operating While Intoxicated (OWI) – You can be convicted of OWI if you are unable to drive safely due to alcohol consumption. This is true regardless of your BAC.
• Prohibited Alcohol Concentration (PAC) – You can be convicted of PAC if your BAC is over the legal limit. This is true regardless of whether you are able to drive safely.

This means that defending against an OWI charge and defending against a PAC charge are very different as well. To defend against an OWI charge, you must be able to successfully challenge the government’s evidence that either (i) you were incapable of driving safely, or (ii) you were under the influence of alcohol. This could involve disputing the government’s evidence that you were drinking, providing an alternate explanation for your driving behavior, and/or asserting a variety of other defenses.

To defend against a PAC charge, you must be able to successfully challenge the government’s evidence of your BAC. This could involve challenging the reliability of your BAC reading (i.e., due to calibration issues), providing an alternate explanation for your BAC, or asserting other BAC-related defenses. However, arguing that your driving abilities weren’t impaired is not an effective defense to a PAC charge.

One similarity between OWI and PAC cases is the availability of constitutional defenses. If the police or prosecutors violate your constitutional rights, then any evidence obtained (or withheld) in violation of your rights may be inadmissible in court. Without admissible evidence of OWI or PAC, prosecutors won’t be able to secure a conviction in court.

Discuss Your OWI or PAC Case with a Drunk Driving Defense Lawyer at Mays Law Office

Are you facing an OWI or PAC charge in Wisconsin? If so, we encourage you to contact us for more information. To speak with a drunk driving defense lawyer at Mays Law Office, please call 608-257-0440 or request an appointment online today.