NEWS

OWI law change poses problem for prosecutors

Nate Beck
Drinking and driving illustration

Some Wisconsin prosecutors are concerned that a change in OWI law could allow drunken drivers who cause minor injuries to evade criminal charges.

Wisconsin Act 224, which went into effect April 10, aimed to create mandatory minimum penalties for drunken car crashes that cause substantial injury and for seventh to 10th offense drunken driving charges.

But while drafting the bill legislators cut text from existing laws. The amended legislation prevents prosecutors from pursuing criminal charges for simple injury crashes, Dodge County District Attorney Kurt Klomberg said.

That means prosecutors now can't charge a drunken driver who causes minor injuries — bruises and scrapes — with OWI-Injury, a criminal offense. Their legal weapons are limited to a simple OWI, which isn't a criminal charge for first offenders, Klomberg said.

"This is not a matter of discretion," Klomberg said. "Prosecutors are basically stuck with the law as it is written and in this situation we can't charge an OWI-Injury. … Right now it is not a criminal charge in the state of Wisconsin — it (the charge) does not exist."

Klomberg said prosecutors didn't know the law had changed until about a week ago. The law will be a drag on law enforcement resources. Investigators will need to spend more time proving serious injuries, he said.

Klomberg said authorities also need to review pending OWI-Injury charges. That means finding evidence to upgrade OWI-Injury charges to a felony substantial bodily harm charge or swapping OWI-Injury for a combination of OWI and reckless driving causing injury.

Kurt Klomberg is Dodge County district attorney.

"I would review and pursue any available charge to pursue dangerous and injurious behavior," Klomberg said. "It's possible that would be a potential means to deal with the problem in the short term, but there needs to be a legislative fix here."

Pairing an OWI with reckless driving causing injury carries a penalty similar to OWI-Injury. But charging a defendant with twin counts is tougher on prosecutors. It requires more time and more evidence, Green County District Attorney Gary Luhman said.

Luhman said there haven't been any OWI-Injury cases in Green County in the last three months, although drunken driving cases are common.

"We could have one tomorrow or we could have one this weekend and we can't prosecute it," Luhman said. "And that's kind of upsetting."

Luhman said he wants lawmakers to correct Act 224 during the next legislative session.

OPENING DOORS FOR DEFENSE

Kirk Everson, a Fond du Lac defense attorney, said sometimes when legislators try to make laws tougher, they open more doors for defense.

"We live in America and we're not going to do away with due process," Everson said. "It doesn't surprise me that the prosecutors got bit. When we have politicians running around glad-handing, passing laws because they're trying to be popular, not because they're good laws, that's what we get."

Jon Richards, D-Milwaukee who is running for Wisconsin Attorney General, and Jim Ott, R-Grafton, introduced the bill in the state Assembly. Alberta Darling, R-River Hills, sponsored it in the senate. Ott and Darling did not immediately respond to requests for comment.

Richards said the law is still an effective tool for prosecuting high-risk drunken drivers, despite the loophole.

"We always want to make laws that work well and protect the public," Richards said. "The legislature always has to be mindful that there might be a better way to state a law or state a solution, and they have to be open-minded about correcting that."

Contact Nate Beck at nbeck@gannett.com, (920) 907-7908, or on Twitter at @NateBeck9