“Can an OWI be dismissed in Wisconsin?” is one of the most-asked questions we get, and most of the answers online are written for other states. Wisconsin has a statute on exactly this point, and reading it changes what you should expect.
The statute nobody mentions
Wisconsin does not leave OWI plea bargaining to the prosecutor’s discretion the way it leaves most charges. § 967.055(2)(a) says that if a prosecutor seeks to dismiss or amend an OWI charge, the prosecutor shall apply to the court, and the application shall state the reasons. The court may approve it only if the court finds the proposed amendment or dismissal is “consistent with the public’s interest in deterring” impaired driving.
The legislature said why, in the same section. § 967.055(1)(a) states an intent “to encourage the vigorous prosecution” of these offenses. This is a deliberate brake on quiet reductions, and it applies to charges under § 346.63(1), (2), (5) and (6), to local ordinances in conformity with them, to § 940.25 and § 940.09 where a vehicle was involved, and to an improper refusal under § 343.305.
So when someone promises they have a relationship that will get it knocked down, the honest response is a question: which reasons go in the application, and why would a judge find them consistent with deterrence?
What that leaves, and it is more than people expect
The statute constrains the prosecutor’s discretion. It does nothing to the State’s burden of proof or to the Fourth Amendment. The routes that work are the ones that do not need anybody’s permission.
The stop
If the stop was unlawful, or lawful but unlawfully prolonged, what came after it usually goes, and an OWI case without the breath test and the roadside observations is often not a case.
State v. Wiskowski, 2024 WI 23, 412 Wis. 2d 185, 7 N.W.3d 474, is the recent illustration and it is a useful one because the facts are so ordinary. A driver fell asleep in a McDonald’s drive-thru. An employee woke him and called the police. The officer watched him pull out and make a proper turn, stopped him anyway, noticed no signs of impairment, and in the court’s own words “felt something was off” and prolonged the stop. The Wisconsin Supreme Court reversed 6 to 1, holding both that the stop lacked reasonable suspicion and that even a valid community caretaking stop “was prolonged unreasonably when it transformed into an unjustified criminal investigation.” The case went back with instructions to vacate the judgment of conviction and grant suppression.
Justice Hagedorn’s sentence is the one to keep: “While reasonable suspicion doesn’t demand much, it does demand more than a hunch.”
The priors
This one does not dismiss the case. It does something that often matters more.
The tiers in § 346.65(2)(am) are steep. A first offense is a civil forfeiture of $150 to $300. A second is a crime, with a fine of $350 to $1,100 and 5 days to 6 months in jail. A fourth is a Class H felony. Every step depends on counting, and § 343.307(1) is a closed list of what counts. Knock one prior out of the count and the whole case moves down a tier.
Two things are worth checking before anyone assumes the count is right. Whether the conviction is on the § 343.307(1) list at all, and whether the State can actually prove it is yours. The second is not a technicality; identity and the disposition actually entered are ordinary proof problems and they are ordinarily where these cases move. We wrote the longer version at second-offense OWI, when the prior does not count.
What generally does not work is attacking the old conviction itself. State v. Hahn, 2000 WI 118, modified on reconsideration, 2001 WI 6, 241 Wis. 2d 85, 621 N.W.2d 902, bars a collateral attack in the current case on every ground except one: that the prior was obtained in violation of the right to counsel.
The test
The chemical test is evidence, and evidence has requirements. Whether the machine was in the condition the law requires, whether the sample was taken the way the statute prescribes, and whether the result means what the State says it means are all live questions in the right case. They are also the ones most sensitive to the specific facts, which is why they belong in a consultation rather than an article.
The commercial-driver trap in the same paragraph
If you hold a CDL, read § 967.055(2)(a) to the end. It says a court may not approve an application to amend the vehicle classification from a commercial motor vehicle to a noncommercial one “unless there is evidence in the record that the motor vehicle being operated by the defendant at the time of his or her arrest was not a commercial motor vehicle.”
That is a specific statutory bar on the exact amendment a CDL holder is most often promised. Our CDL and OWI page covers why the licence, not the fine, is usually the case.
Refusal is not a shortcut
Refusing the chemical test does not starve the case in the way people hope. It starts a second proceeding under § 343.305(9), with its own 10-day deadline: a written request for a hearing, delivered to the court named on the Notice of Intent to Revoke. Miss it and the revocation begins 30 days after the notice was issued without any hearing, and under § 343.307(1)(f) that revocation becomes a countable prior in its own right.
Fight the refusal on its own terms, at the refusal hearing. Do not treat it as a route around the OWI.
What we would ask you first
- Which notice were you handed, and how many of the ten days are left.
- What the officer said the reason for the stop was, before anything about the test.
- What happened between the reason for the stop being resolved and the investigation starting. That gap is where Wiskowski lives.
- What priors the State claims, and whether they are the kind § 343.307(1) counts.
No Wisconsin lawyer may promise you an outcome, and this is not one. But “dismissed” is not the only good result, and in a system built around § 346.65(2)(am) tiers, a charge that drops a tier can matter more to your life than the word on the disposition.
Where we are
Our offices are at 840 Lake Avenue, Racine and 7001 30th Avenue, Kenosha, WI 53142. The consultation costs nothing: (262) 632-5000, answered around the clock.
If your citation is a traffic matter rather than impaired driving, that is racineticket.com. If it is another criminal charge, that is racinelaw.com.
General information about Wisconsin law, not legal advice, and reading it does not create an attorney-client relationship. Every case turns on its own facts. Statutes change; confirm current text at docs.legis.wisconsin.gov.
