Does a Pending Wisconsin OWI Count as a Prior Offense?

Attorney Answer

No — a charge that has not yet produced a conviction, suspension, or revocation is not a prior offense under Wisconsin's counting statute. As things stand today, a still-pending March case is not a prior for the new one.

The statute. Wis. Stat. sec. 343.307(1) lists what counts toward the prior-offense total for OWI penalty enhancement, and every item on that list is an adjudicated outcome: convictions under sec. 346.63(1) and conforming local ordinances (para. (a)); convictions under conforming tribal law (para. (b)); convictions under sec. 346.63(2), sec. 940.25, or sec. 940.09 (para. (c)); convictions under the law of another jurisdiction (para. (d)); operating-privilege suspensions or revocations from other jurisdictions for refusing chemical testing (para. (e)); revocations under sec. 343.305(10) (para. (f)); and convictions under sec. 114.09(1)(b) (para. (g)).

Arrests and pending charges appear nowhere on that list. This is not a gap or an ambiguity — the legislature listed convictions, suspensions, and revocations and did not list charges. That is a real point in your favor, and you should make sure your lawyer is making it.

Two things can still change the count. First, the list counts convictions — so the order in which your two cases are resolved is not a neutral detail. If the March case reaches a conviction before the new case is resolved, that conviction exists and is on the list. Ask your lawyer directly how the scheduling of the two cases interacts under sec. 343.307(1). That is a strategic question I cannot answer without your files, and it is the most important one to bring to a first meeting.

Second, a conviction is not the only countable event. Paragraph (f) counts a revocation under sec. 343.305(10), and paragraph (e) counts an out-of-state suspension or revocation for refusing chemical testing. A refusal-based revocation can therefore become a countable prior without any OWI conviction at all. If a test was refused in either case, tell your lawyer that first.

I am not going to guess what you will ultimately be charged with, what any sentence would be, or how either case should be resolved. Those depend on facts — the reports, the test results, the driving — that are not in front of me.

What you can do 1. Get the charging documents in both cases and note how each is captioned and how many prior offenses each alleges. 2. Retain one lawyer to handle both cases, not two lawyers handling one each. The interaction between the two is the entire issue and cannot be managed from one side. 3. Ask that lawyer, in the first meeting, how the sequence of resolutions affects the prior-offense count under sec. 343.307(1). Put it in those words. 4. Find the license paperwork from each arrest. Each arrest produces its own administrative action with its own deadline; the second does not wait for the first case to end. 5. Tell your lawyer immediately if a chemical test was refused in either case — under sec. 343.307(1)(f), a revocation under sec. 343.305(10) counts as a prior even if the underlying OWI never results in a conviction. 6. Do not discuss either case with anyone but your lawyer, including on recorded jail phone lines and including with anyone who was in the car.

⏱ Time limits apply — and the license deadlines came first, twice. Each arrest starts its own administrative suspension clock, measured in days from the notice you were given at the time, running entirely separately from the criminal case. The deadline from the March arrest and the deadline from the new arrest are two different deadlines, and neither waits for a court date. Check both notices now. These are two separate tracks: the license case and the criminal case use different standards of proof and can reach opposite results on the same stop, and winning one does not dispose of the other.