In the landmark U.S. Supreme Court case of Welsh v. Wisconsin, 466 U.S. 470 (1984), it was Justice Harry Blackmun, a native of neighboring Minnesota, who added a personal observation in his concurring opinion, where he said:
"I yield to no one in my profound personal concern about the unwillingness of our national consciousness to face up to - and to do something about - the continuing slaughter upon our nation's highways, a good percentage of which is due to drivers who are drunk or semi-incapacitated because of alcohol or drug ingestion. ... And it is amazing to me that one of our great States - one which, by its highway signs, proclaims to be diligent and emphatic in its prosecution of the drunken driver - still classifies driving while intoxicated as a civil violation that allows only a money forfeiture of not more than $300 so long as it is a first offense. Wis.Stat. § 346.65(2)(a) (Supp.1983-1984). The state, like the indulgent parent, hesitates to discipline the spoiled child very much, even though the child is engaging in an act that is dangerous to others who are law abiding and helpless in the face of the child's act. ... Our personal convenience still weighs heavily in the balance, and the highway deaths and injuries continue. But if Wisconsin and other States choose by legislation thus to regulate their penalty structure, there is, unfortunately, nothing in the United States Constitution that says they may not do so."
Justice Blackmun made those observations in 1984, the year in which Welsh v. Wisconsin, was decided. In 1984, Wisconsin had essentially the same penalties in place for third-offense drunk driving (within five years) as it has today - a fine not less than $600 nor more than $2,000, a minimum mandatory 30-day jail sentence up to a maximum of one year in the county jail and a license revocation up to three years. Yes, the Legislature has added a lot of bells and whistles to the Wisconsin OWI law over the years. Fourth and fifth-offense penalties, which include up to two years probation, and now sixth- and seventh. Eighth-offense penalties with the possibility of prison sentences for the fifth offense and greater convictions. Doubling of jail sentences when there is a passenger under age 16 in a vehicle. Doubling, tripling and quadrupling of fines for drivers with high blood alcohol levels. Vehicle seizures, absolute sobriety laws for drunk drivers with the requirement for an ignition interlock device to be installed on their vehicles for up to one year after the license revocation is completed. This list of new and innovative ways to "prosecute" repeat offenders in the State of Wisconsin, like the Energizer Bunny, just keeps going, and going, and going, and going.
Don't get me wrong, I'm all for making third-offense drunk driving a felony offense. I'm all for lifting the 10-year time limit on second-offense drunk driving and counting prior drunk driving violations going back to Jan. 1, 1989, for second-offense cases, just like we do for third and subsequent offenses. But what we really need to do in Wisconsin is to make first-offense drunk driving a crime, just like Justice Blackmun suggested should have been done back in 1984.
The best way to change one's behavior is to change one's attitude. The people of this great state have to change their attitudes about drunken driving before there will be a change in their behavior. The best way to push a change in our societal attitudes is to make first-offense drunk driving a crime, with sentencing guidelines that allow for the possibility of probation, increased fines, and, yes, even jail time as a penalty for the most aggravated first-offense cases.
Yes, there will be an added societal cost to the prosecution of these additional first offenders as criminal rather than forfeiture offenses. That may be a cost that is necessary if we want to change societal attitudes about drinking and driving in the State of Wisconsin.
"I yield to no one in my profound personal concern about the unwillingness of our national consciousness to face up to - and to do something about - the continuing slaughter upon our nation's highways, a good percentage of which is due to drivers who are drunk or semi-incapacitated because of alcohol or drug ingestion. ... And it is amazing to me that one of our great States - one which, by its highway signs, proclaims to be diligent and emphatic in its prosecution of the drunken driver - still classifies driving while intoxicated as a civil violation that allows only a money forfeiture of not more than $300 so long as it is a first offense. Wis.Stat. § 346.65(2)(a) (Supp.1983-1984). The state, like the indulgent parent, hesitates to discipline the spoiled child very much, even though the child is engaging in an act that is dangerous to others who are law abiding and helpless in the face of the child's act. ... Our personal convenience still weighs heavily in the balance, and the highway deaths and injuries continue. But if Wisconsin and other States choose by legislation thus to regulate their penalty structure, there is, unfortunately, nothing in the United States Constitution that says they may not do so."
Justice Blackmun made those observations in 1984, the year in which Welsh v. Wisconsin, was decided. In 1984, Wisconsin had essentially the same penalties in place for third-offense drunk driving (within five years) as it has today - a fine not less than $600 nor more than $2,000, a minimum mandatory 30-day jail sentence up to a maximum of one year in the county jail and a license revocation up to three years. Yes, the Legislature has added a lot of bells and whistles to the Wisconsin OWI law over the years. Fourth and fifth-offense penalties, which include up to two years probation, and now sixth- and seventh. Eighth-offense penalties with the possibility of prison sentences for the fifth offense and greater convictions. Doubling of jail sentences when there is a passenger under age 16 in a vehicle. Doubling, tripling and quadrupling of fines for drivers with high blood alcohol levels. Vehicle seizures, absolute sobriety laws for drunk drivers with the requirement for an ignition interlock device to be installed on their vehicles for up to one year after the license revocation is completed. This list of new and innovative ways to "prosecute" repeat offenders in the State of Wisconsin, like the Energizer Bunny, just keeps going, and going, and going, and going.
Don't get me wrong, I'm all for making third-offense drunk driving a felony offense. I'm all for lifting the 10-year time limit on second-offense drunk driving and counting prior drunk driving violations going back to Jan. 1, 1989, for second-offense cases, just like we do for third and subsequent offenses. But what we really need to do in Wisconsin is to make first-offense drunk driving a crime, just like Justice Blackmun suggested should have been done back in 1984.
The best way to change one's behavior is to change one's attitude. The people of this great state have to change their attitudes about drunken driving before there will be a change in their behavior. The best way to push a change in our societal attitudes is to make first-offense drunk driving a crime, with sentencing guidelines that allow for the possibility of probation, increased fines, and, yes, even jail time as a penalty for the most aggravated first-offense cases.
Yes, there will be an added societal cost to the prosecution of these additional first offenders as criminal rather than forfeiture offenses. That may be a cost that is necessary if we want to change societal attitudes about drinking and driving in the State of Wisconsin.
