We can all agree that operating a motor vehicle on a public roadway while one's ability to drive safely, due to the consumption of alcohol or drugs, is reckless-- and, ultimately, very selfish-- behavior. Likewise, we can all agree that Wisconsin's law should do whatever possible to deter this sort of behavior.
The problem, though, is that Wisconsin's
newest iteration of the OWI law, cobbled together by various amendments and additions over the past two decades, has become a Byzantine statutory hodgepodge that even the most experienced lawyers and judges struggle to understand and to apply. For every provision of the law (Sec. 346.63. 346.65, Stats.) there are a litany of conditions-- and exceptions to those conditions-- that render it a Rubik's Cube of statutory language that prosecutors,
defense lawyers, and judges struggle to apply. The provisions of the law are beyond the comprehension of all but the most studious lay persons. For example, consider this provision of Sec. 346.65(3r), Stats:
In any county that opts to offer a reduced minimum period of imprisonment for the successful completion of a probation period that includes alcohol and other drug treatment, any person violating s. 346.63 (2) or (6) shall be fined the same as under sub. (3m), but the period of imprisonment shall be not less than 30 days, except that if the person successfully completes a period of probation that includes alcohol and other drug treatment, the period of imprisonment shall be not less than 15 days. If there was a minor passenger under 16 years of age in the motor vehicle at the time of the violation that gave rise to the conviction under s. 346.63 (2) or (6), the offense is a felony, the applicable minimum and maximum fines or periods of imprisonment for the conviction are doubled and the place of imprisonment shall be determined under s. 973.02. A person may be sentenced under this subsection or under sub. (2) (bm) or (cm) or (2j) (bm) or (cm) once in his or her lifetime. This subsection does not apply to a person sentenced under sub. (3p).
Any questions?
The problem, of course, is that the law attempts, unsuccessfully, to reconcile numerous competing interests. There are those in the community who demand that any person convicted of operating under the influence of alcohol be treated no differently than the most hardened criminal. Others, such as restaurant operators and tavern owners, demand that persons be permitted to drive an automobile after having had a reasonable amount of alcohol to drink. The more moderate among us, believe that lengthy, mandatory jail sentences for those convicted of operating under the influence can be unjust, in that such a sentence can easily ruin one's ability to earn a living, and those convicted of OWI are frequently otherwise law-abiding citizens. Consequently, we have a piece-meal law that, with its various provisions, and exceptions to those provisions, attempts to punish those who ought be punished while, at the same time, offering leniency to those entitled to it.
Crafting a law that reconciles these competing interests may not be as difficult as it seems.
Firstly, the Legislature should stop trying to address, with mandatory provisions of the law, every conceivable contingency. Instead, let us rely on the discretion and the sound judgment of the court. The judges can tell the difference between an unrepentant multiple offender who is dangerous to the community, and a person who is entitled to leniency. Despite what one reads in the main-stream media, the ability of a trial court judge to exercise discretion is a great strength-- it is by no means a weakness-- of our legal system. Individualized sentencing results in far more just sentences than does the one-size-fits-all mandatory sentencing approach that currently exists.
Secondly, the law ought to recognize
why people operate a motor vehicle under the influence of alcohol. Deterrence works fairly well with crimes that require some amount of forethought. But no one wakes up in the morning and says to himself, "I think I'll see if I can get away with driving drunk today." It is against the law to drive while under the influence of alcohol because one well-documented effect of the consumption of alcohol is impaired judgment. Thus, the way the law is currently written, persons are permitted to impair their judgment (by drinking alcohol) to a certain extent, and to then drive a car; provided, however, that one's judgment is not too impaired. It is ridiculous to expect a person who has been drinking to make the important judgment call of whether or not he can drive safely. Most persons who drive under the influence sincerely (but wrongly) believe that they are safe to do so.
Thus, Wisconsin's OWI law should provide for absolute sobriety for those driving an automobile. This would be a much fairer law. Then anyone who has been drinking knows that he or she may not drive an automobile-- there is no judgment call involved. Will this hurt the tavern and restaurant business? It may in the short term. But the goal of any criminal law is to change behavior. People will still go out to eat. They will still meet friends in a tavern. But the designated driver, or use of public transportation, will soon become a part of the social fabric.
If Wisconsin is serious about ending drunken driving, then the Legislature must take a serious approach. Scrap the current law, and start anew.
