Second-Offense OWI in Wisconsin: When the Prior Does Not Count

A second-offense OWI in Wisconsin turns on one number, and it is not your breath result. It is the count of qualifying priors, and it is arithmetic rather than argument:

1. Wis. Stat. § 346.65(2)(am)2 applies when the total of counted priors plus the current offense equals 2 within a 10-year period.
2. That 10-year window exists at this tier and nowhere else. Wis. Stat. § 343.307(1), the list of what counts, contains no date and no time limit of any kind.
3. The window is measured from violation date to violation date, not from conviction dates. Wis. Stat. § 346.65(2c) says so in one sentence.
4. Priors arising out of the same incident count as one.

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 cases in these counties since 1994. The phone is (262) 632-5000 and the first conversation is free. In a second-offense case, the first thing worth doing is auditing the prior the State is counting, because it is the only fact in the file that decides whether this is a crime or a ticket.

Why the tier is the whole case

At the first-offense tier a standard OWI is a civil forfeiture: $150 to $300 under Wis. Stat. § 346.65(2)(am)1, a 6 to 9 month revocation under § 343.30(1q)(b)2, and eligibility for an occupational license immediately.

Add one counted prior and the same conduct becomes a criminal misdemeanor:

Note the interlock line. Under § 343.301(1g)(a)2.b a court must enter an interlock order where the person “has a total of one or more prior convictions, suspensions, or revocations” counted under § 343.307(1), and under § 343.301(2m)(a) that restriction runs at least a year. The prior does not merely raise the penalty. It triggers a separate set of orders.

That is why the prior-offense audit is not a technicality. It is the case.

One dated caveat on the 45-day line above. Section 343.30(1q)(b)3 carries an effective-date note on docs.legis.wisconsin.gov: the subdivision is amended by 2025 Wis. Act 210, and the amended text drops the 45-day wait, leaving occupational eligibility conditioned on completing the assessment and complying with the driver safety plan. That amendment takes effect on the first day of the 12th month beginning after a date the Department of Transportation specifies in a notice published in the Wisconsin Administrative Register. Until that clock runs, the 45 days is the operative rule. Our Act 210 page tracks the change.

What Wis. Stat. § 343.307(1) actually counts

The list is short, and it is exclusive. Section 343.307(1) directs the court to count the following in determining the penalty under § 346.65(2):

• (a) convictions under § 346.63(1), or a local ordinance in conformity with it. That is the ordinary Wisconsin OWI, charged under § 346.63(1)(a) for impairment or § 346.63(1)(b) for a prohibited alcohol concentration.
• (b) convictions under a tribal law in conformity with § 346.63(1).
• (c) convictions under § 346.63(2) or § 940.25, or § 940.09 where a vehicle was involved.
• (d) out-of-state convictions for impaired driving, an excess or specified range of alcohol concentration, drugged driving, or a detectable amount of a restricted controlled substance, “as those or substantially similar terms are used in that jurisdiction’s laws.”
• (e) out-of-state operating privilege suspensions or revocations “arising out of a refusal to submit to chemical testing.”
• (f) revocations under § 343.305(10), the Wisconsin refusal revocation.
• (g) convictions under § 114.09(1)(b)1 or 1m, which is aircraft.

Read that list again for what is missing. There is no reference to chapter 30 (boating), chapter 350 (snowmobiles) or § 23.33 (all-terrain and utility terrain vehicles). There is no reference to § 343.305(7), the six-month administrative suspension that follows a failed test. And there is no date anywhere in the subsection.

The priors that count even though people assume they do not

Illinois court supervision. Illinois treats supervision as something other than a conviction. Wisconsin applies its own definition instead. In State v. List, 2004 WI App 230, the court of appeals held that “his placement under court supervision was a result of a determination that he ‘violated or failed to comply with the law in a court of original jurisdiction.’ The Illinois sentence was therefore a conviction as defined by Wisconsin law, and counts toward the determination of the severity of his penalty.” The definition applied is in Wis. Stat. § 340.01(9r). Our Illinois DUI as a Wisconsin prior page works through the cross-border mechanics in detail.

An Illinois statutory summary suspension. In State v. Jackson, 2014 WI App 50, the court “concluded that the trial court properly counted the statutory summary suspension as a prior conviction.” An administrative action on your license in another state is squarely inside § 343.307(1)(e).

An expunged Wisconsin prior. State v. Braunschweig, 2018 WI 113, concluded that “a prior expunged OWI conviction must be counted under § 343.307(1).” Expungement clears the court record. It does not remove the Department of Transportation entry, and § 343.23(2)(b) requires that entry to be kept permanently.

A refusal revocation. Section 343.307(1)(f) counts revocations under § 343.305(10), subject to the constitutional limit below.

The priors that do not count

An out-of-state conviction for something that is not about impairment. Jackson is the cleanest example. The State tried to count a 2003 Illinois reckless driving conviction that had started life as a DUI charge. The court of appeals refused, holding that “[e]very term in subsection (1)(d) relates in some way to a person operating a motor vehicle with either drugs or alcohol, or both, in his or her system. That critical aspect is completely absent from the reckless driving offense of which Jackson was convicted,” and adding that “[t]he initial charge, sanctions, and potential future consequences are of no moment.” What the person was convicted of controls. What they were charged with does not.

Boat, snowmobile and ATV convictions, in either direction. This one is worth stating plainly because the intuition runs the wrong way. Nothing in § 343.307(1) reaches an intoxicated boating, snowmobiling or ATV conviction, so those do not raise an OWI tier. And the traffic in the other direction is closed as well:

• Boating: Wis. Stat. § 30.80(6)(a)2 counts a person “convicted one time previously under the intoxicated boating law or the refusal law,” and § 30.50(4m) defines “intoxicated boating law” as § 30.681(1) or (2), a local ordinance in conformity, or § 940.09 or § 940.25 where a motorboat was involved.
• Snowmobiles: § 350.11(3)(a)2 counts a prior “under the intoxicated snowmobiling law or the refusal law,” and § 350.01(9c) defines that term as § 350.101(1) or (2), a conforming local ordinance, or § 940.09 or § 940.25 where a snowmobile was involved.
• ATVs and UTVs: § 23.33(13)(b)2 counts a prior “under the intoxicated operation of an all-terrain vehicle or utility terrain vehicle law,” defined by § 23.33(1)(ic) as § 23.33(4c), a conforming local ordinance, or § 940.09 or § 940.25 where such a vehicle was involved.

None of those definitions includes § 346.63. A car OWI does not make your next boating case a second offense, and a boating case does not make your next OWI one either. Note also that all three of those chapters use a 5-year lookback, not ten.

A revocation that came solely from refusing a warrantless blood draw. State v. Forrett, 2022 WI 37, held that “Wis. Stat. §§ 343.307(1) and 346.65(2)(am) are 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.” The court’s reasoning rests on the constitutional distinction between breath and blood: a warrantless breath test is a permissible search incident to arrest, while “warrantless blood draws are ‘another matter.’” So the holding does not reach a breath-test refusal, and it does not undo the civil revocation itself. It bars using that particular revocation to make the next case a crime.

The administrative suspension after a failed test. The six-month suspension under § 343.305(7)(a) is not on the § 343.307(1) list. It is a consequence, not a prior. The administrative suspension page explains how that track runs on its own.

Attacking a prior that does qualify

If the prior is genuinely on the list, one door remains and it is narrow. State v. Hahn, 2000 WI 118, concluded “that an offender may not use the enhanced sentence proceeding predicated on a prior conviction as the forum in which to challenge the prior conviction, except when the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior state conviction.”

State v. Ernst, 2005 WI 107, an OWI-fifth case, supplies the procedure. The defendant must make “a prima facie showing, pointing to facts that demonstrate that he or she did not knowingly, intelligently, and voluntarily waive his or her constitutional right to counsel,” and when that showing succeeds, “the burden to prove that the defendant validly waived his or her right to counsel shifts to the State.”

That is the whole of it. A prior that was a bad deal, or that rested on weak evidence, or that you regret, is not attackable here. A prior where you stood in front of a judge without a lawyer and without a valid waiver may be.

What the State has to prove, and how it usually proves it

The burden on a prior is a preponderance of the evidence, and the proof is documentary. State v. Loayza, 2021 WI 11, restated the rule at paragraph 28, quoting two earlier decisions: “the convictions may be proven by certified copies of conviction or other competent proof offered by the state before sentencing,” and such “competent proof must reliably demonstrate, with particularity, the existence of each” prior conviction.

In practice the State starts with the Department of Transportation driving record. That record is a summary. It is not a certified judgment, it does not say what statute another state convicted you under, and it does not say whether two entries came from one incident. Pulling the actual out-of-state file is ordinary work that is skipped more often than it should be.

Where this lands in Racine and Kenosha County

Second-offense OWI is a criminal misdemeanor, so it is filed in circuit court: the Racine County Courthouse at 730 Wisconsin Avenue, or the Kenosha County Courthouse at 912 56th Street. Both counties sit in the Second Judicial District, and both sit on the Illinois line, which is why the prior-offense question here is so often an out-of-state question. A Kenosha County file with a Lake County, Illinois entry on the record is a routine week for us.

The refusal track runs in parallel and on its own clock. If you refused the evidentiary test you had 10 days from the Notice of Intent to Revoke to demand a hearing under Wis. Stat. § 343.305(9), and the revocation that follows under § 343.305(10) becomes a counted prior in its own right under § 343.307(1)(f). Our refusal hearing page covers that proceeding, and the 2nd-offense OWI page covers the penalty tier in full.

The searches that bring people here

People arrive at this page having typed owi 2nd offense wisconsin, second offense OWI Wisconsin penalties, 346.63(1)(a), 343.305, and does an Illinois DUI count in Wisconsin. They are all the same question underneath: how many does the State say I have, and is it right?

Five questions worth asking any firm you call, including this one:

1. Will you pull the certified out-of-state record yourself, or work from the DOT abstract?
2. Does the prior actually appear in Wis. Stat. § 343.307(1), or only on a driving record?
3. Were any two entries from the same incident, which § 346.65(2)(am)2 counts as one?
4. If a refusal revocation is being counted, was it a blood refusal under Forrett?
5. Was I represented in the prior case, and if not, was the waiver valid under Ernst?

Related reading: 2nd-offense OWI · Illinois DUI as a prior · Refusal hearings · Administrative suspension · Occupational licenses · Racine County OWI · Kenosha County OWI · The first 30 days after an arrest · How many OWIs before it is a felony? · Can an OWI be dismissed in Wisconsin?

Speeding, points and other non-impaired traffic citations are handled by our traffic practice at racineticket.com. Any other criminal charge in Racine or Kenosha County is at racinelaw.com.