Here’s what to do if you’re the victim of a drunk driving accident
We all know by now that drinking and driving is a bad combination. The issue first began getting publicity back in the 1970s, gaining momentum when Mothers Against Drunk Driving (MADD) was founded in 1980, followed by Students Against Drunk Driving (SADD) in 1981.
Sadly, impaired driving continues to be a serious problem in the Badger State.
Outagamie County, Wisconsin was ranked the "drunkest county" in America in November 2021. The ranking was based on findings that 31% of adults engaged in regular binge or heavy drinking and that 32% of driving deaths involved alcohol.
Data from County Health Rankings & Roadmaps, the Robert Wood Johnson Foundation, and the University of Wisconsin Population Health Institute also determined that Wisconsin is the "drunkest state" in the U.S. The study found that 27.1% of Wisconsin adults binge drink or drink heavily. On a statewide level, 35.7% of driving deaths involve alcohol — this makes Wisconsin the 5th highest in the country in terms of alcohol-related fatalities.
A pickup truck was traveling southbound in the northbound lane on State Trunk Highway 32 when it struck an SUV head-on that was traveling northbound. Then, another SUV collided with the truck. The first SUV burst into flames. Both the driver of the pickup truck and the driver of the third vehicle were found to be impaired at the scene. The driver of the SUV was also later determined to be impaired.
This accident highlights the serious problem of Wisconsin DUI because of the involvement of 3 vehicles in a serious accident and 3 unrelated drunk drivers.
Wisconsin drunk driving laws and penalties
Before we get into the laws and penalties surrounding impaired driving in Wisconsin, it's important to understand the acronyms for drunk driving and how they relate to each other and to the law.
DUI vs. OWI
OWI stands for "operation of a motor vehicle while intoxicated." A person is considered to be operating a motor vehicle if they are controlling any part of the vehicle that is needed to make the vehicle move. Even if you're sitting in the driver's seat of a car that's turned on but isn't moving, you could still be charged with OWI if you're intoxicated. This designation also applies to boats, snowmobiles, other off-road vehicles, and anything that has a motor. Wisconsin considers intoxication to be a blood alcohol concentration (BAC) of 0.08% or higher.
The acronym "DUI" is a commonly used term for driving under the influence. However, OWI is the legal term used in Wisconsin. By definition, a Wisconsin OWI is the same as a DUI.
According to Wisconsin Stat. 346.(1)(a), (b), a Wisconsin driver can be convicted of OWI based on 2 elements:
- They were operating a motor vehicle on a public highway; and
- They were under the influence of an intoxicant and their abilities were materially impaired by alcohol.
While OWI refers to intoxication from alcohol, the law includes any substance that would cause a person to be incapable of driving safely. It also includes any detectable amount of certain restricted controlled substances like methamphetamine.
How can I know my BAC?
There is no way to know your blood alcohol concentration (BAC) without a breath test (or Breathalyzer), or a urine or blood test. You also can't know what your BAC is today based on what it was yesterday. There are several factors that influence BAC, which means the same person could drink the same amount 2 days in a row and have a different BAC on subsequent days.
The only way to guarantee that you're within the legal BAC limit is not to drink ANY alcohol before you drive.
Factors that affect BAC include:
- How much alcohol you drank
- How quickly you drank
- Your body weight
- Amount you've eaten, amount of time since you ate, and what you ate
- Your biological gender
- Type of alcohol
- Other medications and medical conditions
- Alcohol tolerance
- Fatigue, stress, and mood
Wisconsin OWI penalties
The punishment for drunk driving depends, in part, on how many prior DUI offenses a person has.
|Jail time||Fines||License revocation|
|1st offense||Up to 30 days*||$150-$300 fine||6-9 months|
|2nd offense||5 days to 6 months in jail||$350-$1,100 fine||12-18 months|
|3rd offense||45 days to 1 year in jail||$600-$2,000 fine||2-3 years|
Each person convicted of an OWI in Wisconsin also must participate in a drug and alcohol evaluation that will be used by the court to create a treatment and safety plan, education, and establish sobriety testing. Some OWI convictions also result in community service up to 30 days instead of jail time for a second offense.
If a person has committed a 3rd offense, a judge can sentence the defendant to at least 14 days of jail time with probation and treatment.
There are also doubled fines for excessive BAC of 0.17% to 0.199%, and tripled fines for BAC of 0.20% to 0.249%. The fines are quadrupled for a driver whose BAC is 0.25% or higher.
If a driver is under 21, they can be convicted of OWI with any BAC higher than 0.0%. If the amount is less than 0.08%, they might face a 3-month license suspension and $200 fine.
Wisconsin dram shop laws
Dram shop laws and social host laws exist in some states to hold a person or business (like a restaurant or bar) responsible for serving alcohol to someone who causes an accident as a result of their drunkenness or impaired condition. States handle these laws in various ways—some apply only if the drunk person is underage, whereas others apply to social hosts (i.e. private homes) but not businesses, etc.
There are 2 important exceptions:
- You might be able to sue a host or business owner if they know or reasonably should have known that the person to whom they provided the alcohol was less than 21 and that person causes an accident.
- If the driver was bullied or deceived into drinking alcohol, the server could be responsible. For instance, if the driver was told they were being served alcohol-free beverages but they actually did contain alcohol, the server could be liable. In addition, if the person was forced to drink against their will and caused an accident, the person who forced alcohol on them could be sued.
Determining liability for a drunk driving accident
In other words, who pays?
If you were injured in an accident caused by a drunk driver, you're entitled to recover damages (money) to cover the costs of your related injuries.
Types of damages for a Wisconsin drunk driving accident might include:
- Medical treatment (including doctor or hospital visits, prescription medication, diagnostics, surgery, etc.)
- Lost wages or loss of future earning capacity
- Ongoing rehabilitative therapies, prosthetics, or assistive devices
- Pain and suffering (emotional distress)
- Loss of consortium or companionship
- Loss of enjoyment of daily life
- Punitive damages, which can be awarded if the accident involved negligence "above the mere breach of duty for which compensatory damages can be given." (Wisconsin 895.043)
However, in order for a plaintiff (injured person) to recover damages for any accident, first they need to prove that the defendant's negligence caused the accident.
In a "regular" car accident, the responding police officers, accident investigators, and witnesses would provide statements used as evidence to determine how the accident happened and which driver is at fault.
When a drunk driver is in an accident, the victim doesn't need to convince a jury that the defendant was negligent. Violating the Wisconsin OWI law is unreasonable because avoiding drunk driving injuries is exactly what the law aims to prevent.
This is a concept called negligence per se, which means that the fact that the driver was drunk is enough to prove legal fault for the personal injury drunk driving claim.
So, if you're the victim of drunk driving, you don't need to prove negligence.
However, you DO still need to prove:
- That your injuries were the result of the accident; and
- The costs in your claim are related to your injuries.
What to do if you've been hit by a drunk driver in Wisconsin
Drunk driving is a criminal offense. However, you cannot charge someone with a crime. Only the government can do that.
What you can do is file a civil claim for damages. The only remedy in a civil lawsuit is for you to receive damages in the form of money. In other words, you can recover costs from the accident so you're restored to the financial condition you'd be in if the accident had never happened.
It's important to cooperate with law enforcement and prosecutors if you're asked for a statement, to be a witness, or for other evidence or information related to the criminal case. Not only does it help to provide evidence that could be important for a conviction or sentencing, but a drunk driving conviction might also be helpful to prove fault in your civil claim.
For starters, never try to apprehend a drunk driver. If you're in an accident, call 911. You don't know if the person is dangerous, and someone might be more likely to be violent when drunk than they would sober. If the person attempts to flee, try to get as much information as possible about the vehicle (make, model, color, license plate) and driver (skin color, hair color, gender, etc.) so the police can track them down.
There are a few things to watch for at the scene of an accident that might provide clues as to whether the other driver is intoxicated or impaired. Tell an officer if you observe the following:
- Smell of alcohol or marijuana on the other driver. The other driver might use a breath spray, gum, mints, or another substance to try to cover the smell before the police arrive.
- Use of eye drops. If the driver is under the influence of marijuana or other drugs that might not appear on a routine alcohol BAC test, they might use eye drops to make their appearance look more "normal" to police. If you see a driver administering eye drops, let the police know so that they can consider whether to give a drug test.
- Disposing of alcohol containers or drug paraphernalia. If you observe the driver tossing anything from the car, inform the police.
- Driver switching seats after the crash. Some drunk drivers will switch seats with a sober passenger so they can claim that the passenger was actually the driver. If you see this happen, inform the police at the scene.
Again, don't confront the driver with your suspicions. Wait until the police arrive and share the information with them. Law enforcement is trained to handle these situations, so let them do their job.
Contact a personal injury lawyer
If you're the victim of a drunk driver, you will have 2 options:
- File an insurance claim, or
- File a personal injury lawsuit.
If your injuries were minor and you've already received all of the necessary treatment, you might be able to get an insurance settlement that covers the full extent of your damages. In Wisconsin, the at-fault driver is responsible for the costs related to an accident. You may either make a claim directly to the at-fault driver's insurance company or file through your own insurance company, which will subrogate the claim (in other words, make a claim against the other driver on your behalf).
If your injuries are severe and the costs exceed the amount you can recover from insurance, or if you will have future expenses related to the accident, it's best to contact a lawyer.
Even if the insurance company offers you a settlement, if you expect to have additional costs, it's hard to estimate what your total expenses will be. Most lawyers are experienced at determining the future costs related to an accident and can ensure that you receive the full amount of compensation to which you're entitled.