If you are trying to work out where your case sits before anyone explains it to you, here is the answer without the preamble.
- The felony line is the fourth offense. Wis. Stat. § 346.65(2)(am)4 makes a 4th or subsequent OWI a Class H felony for offenses committed on or after January 1, 2017.
- A third offense is still a misdemeanor, and it is the last one that is.
- The rule tightened. 2015 Wisconsin Act 371 repealed Wis. Stat. § 346.65(2)(am)4m, which had tied felony treatment to a time window between offenses, and reclassified the tiers above it. It took effect January 1, 2017 and first applies to violations committed on that date.
- The count decides everything, and the count is not obvious. Refusals count. Civil-forfeiture first offenses count. Out-of-state convictions can count. And above the second-offense tier there is no time window at all: a prior counts no matter how old it is.
We are Cafferty, Scheidegger & Johnson, S.C., a criminal defense firm at 840 Lake Avenue in Racine with a second office at 7001 30th Avenue in Kenosha, and we have defended OWI in these counties since 1994. The phone is answered around the clock at (262) 632-5000 and the first conversation costs nothing.
Before the tiers: how Wisconsin counts
Most people arrive at this question with a number in their head that turns out to be wrong, in one direction or the other. The counting rule under Wis. Stat. § 343.307(1) is where the case is actually decided.
What counts as a prior:
- Every qualifying Wisconsin OWI conviction, including a civil-forfeiture first offense. It is not a crime, and it still counts.
- Refusal revocations, but read the limit. Wis. Stat. § 343.307(1)(f) counts “[r]evocations under s. 343.305 (10),” so a refusal can count with no OWI conviction attached. State v. Forrett, 2022 WI 37, then held §§ 343.307(1) and 346.65(2)(am) “unconstitutional to the extent that they count prior revocations resulting solely from a person’s refusal to submit to a warrantless blood draw as offenses for the purpose of increasing the criminal penalty.” Blood only: breath-test refusals are unaffected, and so is the civil revocation itself.
- Out-of-state convictions where the other state’s offense is substantially similar. In Kenosha County, which borders Illinois, this is a live issue in a large share of cases. Our Illinois DUI prior page works through which Illinois dispositions do and do not qualify.
How far back, set by the penalty statute rather than by § 343.307(1), which contains no time limit of its own:
| Tier being charged | Lookback |
|---|---|
| 2nd offense | Wis. Stat. § 346.65(2)(am)2 counts priors falling within a 10-year period |
| 3rd offense and above | No window. Every qualifying prior, regardless of age |
That second row is the one that surprises people. A 1991 conviction and a conviction from last year weigh exactly the same when the State is deciding whether to charge a fourth offense, because Wis. Stat. § 346.65(2)(am)3 and the subdivisions above it simply count the total.
The full ladder
Every figure below is the statutory framework, before the $535 OWI surcharge under Wis. Stat. § 346.655, court costs, ignition interlock costs and insurance consequences.
| Offense | Classification | Confinement | Fine | Revocation |
|---|---|---|---|---|
| 1st | Civil forfeiture (not a crime) | None | $150 to $300 | 6 to 9 months |
| 2nd | Criminal misdemeanor | 5 days to 6 months, county jail | $350 to $1,100 | 12 to 18 months |
| 3rd | Criminal misdemeanor | 45 days to 1 year, county jail | $600 to $2,000 | 2 to 3 years |
| 4th | Class H felony | 60-day minimum; up to 6 years (3 initial confinement + 3 extended supervision) | $600 to $10,000 | 2 to 3 years |
| 5th and 6th | Class G felony | 18-month minimum initial confinement; up to 10 years | up to $25,000 | 2 to 3 years, often permanent |
| 7th, 8th, 9th | Class F felony | 3-year minimum initial confinement; up to 12 years 6 months | up to $25,000 | 2 to 3 years, often permanent |
| 10th and above | Class E felony | 4-year minimum initial confinement; up to 15 years | up to $50,000 | 2 to 3 years, often permanent |
Two enhancers ride on top of that grid and are easy to miss:
- High alcohol concentration. Wis. Stat. § 346.65(2)(g) doubles the applicable minimum and maximum fines under par. (am)3 to 5 at 0.17 to 0.199, triples them at 0.20 to 0.249 and quadruples them at 0.25 and above. It multiplies the fines, not the confinement, and it reaches only the 3rd, 4th and 5th-offense subdivisions.
- A passenger under 16. Wis. Stat. § 346.65(2)(f) applies second-offense penalties to a first offense, and doubles the minimums, maximums and revocation at higher tiers. Our OWI with a minor page covers how that enhancer interacts with each tier.
What actually changes at the felony line
This is the part that ad copy usually skips, because “the toughest offenses” sounds better than a list. The list is more useful.
1. Where the time is served, and how it is structured. A misdemeanor sentence is county jail time. A felony sentence is bifurcated: a period of initial confinement in state prison followed by a period of extended supervision, with conditions attached to the second half that can run for years after release.
2. The procedure changes before anything is decided. A felony case gets a preliminary hearing at which the State must show probable cause, typically within 10 days if you are in custody and 20 days if you are out on bond. Bond conditions at this tier commonly include absolute sobriety, no driving without a valid license, and interlock installation.
3. Firearms. Federal law at 18 U.S.C. § 922(g)(1) reaches anyone “convicted in any court of, a crime punishable by imprisonment for a term exceeding one year,” which a Class H felony is. Under Wis. Stat. § 941.29, a person convicted of a felony who possesses a firearm is guilty of a Class G felony. Neither provision expires on its own; relief runs through a pardon or the narrow federal route. For a lot of clients in this part of the state this is the consequence that lands hardest and lasts longest.
4. Voting. Wis. Stat. § 6.03(1)(b) disqualifies a person convicted of a felony from voting unless the right is restored by pardon or under Wis. Stat. § 304.078(3), which restores it “when he or she completes the term of imprisonment or probation for the crime that led to the disqualification.”
5. The license can stop coming back. Under Wis. Stat. § 343.31(1m)(b), the department must revoke permanently once the counted total reaches 4 or more, and that paragraph “does not apply if the most recent conviction, suspension, or revocation counted under this paragraph occurred more than 15 years after the next preceding” one. Getting back on the road afterwards runs through Wis. Stat. § 343.38, which among other things requires that the applicant not have been convicted of a counted offense during the 10-year period immediately preceding the application, plus a current assessment and driver safety plan and proof of financial responsibility. This is a separate administrative track from the sentence, and it does not wait for the criminal case.
6. Minimums appear in the statute itself. Wis. Stat. § 346.65(2)(am)4 sets imprisonment of not less than 60 days at the 4th offense. At the 5th and above, Wis. Stat. § 346.65(2)(am)5, 6 and 7 require a bifurcated sentence with a floor on the confinement portion. Only subd. (am)5 lets the court go below that floor, and only if it “finds that the best interests of the community will be served and the public will not be harmed” and “places its reasons on the record.” Subdivisions (am)6 and (am)7 contain no reduction clause: the 3-year and 4-year floors are flat. Anyone who tells you the community-interest provision applies at the 7th-offense tier is reading subd. (am)5 into a subdivision that does not contain it. At the 4th, Wis. Stat. § 346.65(2)(dm) is the exception worth knowing: in a county that opts to offer it, successful completion of probation including alcohol and other drug treatment reduces the 60-day floor to “not less than 29 days,” once in a lifetime.
7. Reporting obligations widen. A Class H felony carries a 6-year maximum, which puts it inside the category of felonies a school administrator must report to the state superintendent under Wis. Stat. § 115.31(3)(a)1, and that trigger fires on the charge, not the conviction. Credential holders regulated by the Department of Safety and Professional Services have a separate 48-hour notice duty on any misdemeanor or felony conviction under Wis. Stat. § 440.03(13)(am). Our post on OWI and your professional license covers both.
And one thing that does not change at the felony line: the Fourth Amendment. Every challenge available in a first-offense case, meaning the stop, the arrest, the administration of the field sobriety tests and the breath or blood testing, is available here, with more at stake.
The number is the case
At the felony tiers, the fight is usually not about what happened on the road. It is about arithmetic.
The State must prove every prior it uses to elevate the charge, and there are two distinct ways to fight it.
The first is about the count: whether a thin 1990s paper record is actually yours, and whether an out-of-state conviction fits the description in Wis. Stat. § 343.307(1)(d), which counts a conviction under another jurisdiction’s law prohibiting the same conduct “as those or substantially similar terms are used in that jurisdiction’s laws.”
The second is a collateral attack on the validity of a prior conviction, and Wisconsin limits it tightly. In State v. Hahn, 2000 WI 118, the Wisconsin Supreme Court held that an offender may not use the enhanced sentence proceeding as the forum to challenge a prior conviction “except when the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior state conviction.” Other defects in the old case, including whether a plea was knowing and voluntary, have to be raised through separate postconviction procedures rather than in the new sentencing.
Striking one prior moves the whole case down a tier:
- A charged 4th drops to a 3rd: felony to misdemeanor, and prison exposure disappears.
- A charged 5th drops to a 4th: the ceiling goes from 10 years to 6.
- A charged 7th drops to a 6th: the mandatory minimum initial confinement goes from 3 years to 18 months.
None of that is automatic and none of it is a promise. It is an audit, it takes records work, and it has to happen before a plea, because a plea closes it.
And do not count on cleaning it up later. Wis. Stat. § 973.015 is narrow on its own terms, and it expressly provides that the expungement subsection “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).” The driving record that drives the prior-offense count is not reached.
About “a tough defense for the toughest offenses”
You will see that kind of line a lot while you are searching, and you should know that in Wisconsin an attorney cannot ethically tell you they are the best, cannot guarantee you an outcome, and cannot put a former client’s testimonial in front of you without meeting the advertising rules. So compare on things you can check yourself instead. Five questions that work on any firm you call, including ours:
- Will you audit every prior the State is counting, including any out-of-state record, or take the prosecutor’s count at face value?
- How many cases have you handled at my specific offense tier?
- Do you litigate the license side yourself, meaning refusal hearings under Wis. Stat. § 343.305(9) and administrative review under Wis. Stat. § 343.305(8)?
- What is your experience with treatment-court placement in this county?
- What is the flat fee, in writing, and what does it not cover?
A firm that resolves everything by plea will answer question one vaguely. That is the tell worth listening for.
If you are charged at the felony tier
Call before the initial appearance if you can. Bond conditions get set there, and the earliest work (preservation letters for squad video and body-cam footage, and pulling the underlying records on every prior) is worth more in week one than in month four.
(262) 632-5000, answered 24 hours a day, or our contact form. We serve Racine, Kenosha and Walworth counties.
Related reading: 4th-offense OWI (felony) · 5th offense and beyond · 3rd-offense OWI · Illinois DUI priors · Refusal hearings · OWI causing injury · Homicide by intoxicated use · Why Wisconsin is imprisoning more OWI drivers than ever · Can an OWI be dismissed in Wisconsin? · CDL and OWI: why the license is the case
Non-impaired traffic matters are handled by our traffic practice at racineticket.com. Any other felony charge in Racine County is handled by the main firm at racinelaw.com.
This post is general information about Wisconsin law, not legal advice, and reading it does not create an attorney-client relationship.
