I am routinely asked whether an OWI conviction is a felony, misdemeanor or crime. The
answer is it depends. In determining if an OWI violation is criminal, the critical factor is the number
of prior convictions. If there is at least one prior countable conviction within the last 10 years or two
prior countable convictions since 01/01/1989, then the new violation will be charged as a crime. If there
are no prior offenses, then the charge will be a civil violation unless there is a minor in the vehicle. In those
situations, the operating while under the influence charge will result in criminal penalties and will be considered a misdemeanor.
Additionally, the following assumes that there is no accident or injuries.
Assuming that there was no accident and no minors under 16 in the vehicle, an OWI 2nd, or 3rd, would be classified as
misdemeanors. If there was a minor in the vehicle, and OWI 3rd and 4th are classified as felony offenses,
punishable by a possible prison sentence. Whether a 4th offense is a misdemeanor or felony offense is dependent on whether
or not the OWI 4th came within five years of a prior offense. In Wisconsin, a fourth offense becomes a felony when there is
a prior OWI offense within five years. An attorney should carefully examine your driving record to determine this.
An OWI 5th or subsequent offense is always classified as a felony in Wisconsin. Causing
injury by operating a motor vehicle while intoxicated is a misdemeanor (assuming no minors in the vehicle). However,
injury by intoxicated use of a motor vehicle and homicide by intoxicated use of a motor vehicle are classified as felonies.
The major difference between misdemeanors and felonies is the potential place of imprisonment.
For a felony, the court has the option to send you to prison. In Wisconsin, the prison system is
run by the Wisconsin Department of Corrections. In a misdemeanor case, the court cannot send you to prison.
Any sentence would be served in county jail. In Wisconsin, the jail is usually run by the local
In a civil OWI situation (OWI 1st) there is no jail sentence.