Criminal Defense Laws in Wisconsin

Criminal Defense Law in Wisconsin: Overview

Wisconsin has several distinctive features in its criminal justice system. Most notably, a first offense OWI (operating while intoxicated) is a civil forfeiture rather than a criminal offense — Wisconsin is the only state where a first drunk driving offense is not a crime. The state classifies felonies into nine classes (A through I) and misdemeanors into three classes (A through C). Wisconsin does not have a stand your ground law and follows a duty to retreat doctrine, though the castle doctrine applies within one's home under the 2011 Castle Doctrine Law (Act 94). The state does not have the death penalty, having abolished it in 1853 — Wisconsin was the first state to permanently ban capital punishment. Marijuana remains illegal for both recreational and medical use in Wisconsin, making it one of a shrinking number of states without any legal cannabis program, though numerous municipalities have reduced penalties for simple possession. Wisconsin's expungement law is notably restrictive, generally available only at the time of sentencing for defendants under age 25 at the time of the offense, though recent reforms have expanded eligibility.

Key Statutes & Deadlines

OWI: First Offense Non-Criminal, Escalating Penalties

Wisconsin is unique nationally in treating a first OWI offense as a civil forfeiture rather than a criminal offense. Under Wis. Stat. § 346.63, a first OWI without aggravating factors carries a fine of $150 to $300, a six- to nine-month license revocation, and a mandatory alcohol assessment — but no jail time and no criminal record. However, if a passenger under 16 is present, even a first offense becomes criminal. A second OWI is a misdemeanor with a mandatory minimum of five days in jail, a fine of $350 to $1,100, and 12- to 18-month license revocation. A third OWI carries 45 days to one year in jail. A fourth offense is a Class H felony with up to six years in prison. Fifth and sixth offenses are Class G felonies (up to 10 years), and seventh, eighth, and ninth offenses are Class F felonies (up to 12.5 years). Tenth and subsequent offenses are Class E felonies (up to 15 years). Wisconsin imposes ignition interlock requirements for repeat offenders and high-BAC offenders.

Drug Laws and Marijuana Status

Wisconsin has not legalized marijuana for recreational or medical use, making it one of the most restrictive states on cannabis policy. A first offense for marijuana possession is a misdemeanor under Wis. Stat. § 961.41(3g), carrying up to six months in jail and a $1,000 fine. A second or subsequent offense is a Class I felony carrying up to 3.5 years in prison. Manufacturing or distributing marijuana is a felony with penalties varying by quantity. While the state has not enacted a medical marijuana program, CBD oil derived from hemp (with less than 0.3% THC) is legal. Numerous Wisconsin municipalities, including Milwaukee and Madison, have enacted local ordinances reducing penalties for small amounts of marijuana possession to civil citations with modest fines, though state law technically supersedes local ordinances. For other controlled substances, possession is generally a misdemeanor for a first offense and a felony for subsequent offenses.

Castle Doctrine and Self-Defense

Wisconsin enacted its Castle Doctrine Law in 2011 (Act 94), codified at Wis. Stat. § 939.48(1m). The law creates a presumption that a person who uses force, including deadly force, against someone who unlawfully and forcibly enters their dwelling, motor vehicle, or place of business reasonably believed that force was necessary to prevent death or great bodily harm. This presumption shifts the burden to the prosecution to disprove the reasonableness of the defensive action. However, outside these protected locations, Wisconsin follows a duty to retreat doctrine. A person in a public place must retreat if possible before using deadly force. Wisconsin does not have a stand your ground law. The castle doctrine also provides civil immunity for lawful uses of defensive force within protected locations.

Wisconsin Court System

Wisconsin's criminal cases are tried in Circuit Courts, which are the state's trial courts of general jurisdiction. Wisconsin has 72 counties, each with at least one Circuit Court branch. Municipal courts handle certain ordinance violations. The Court of Appeals serves as the intermediate appellate court with four districts (Milwaukee, Waukesha, Wausau, and Madison). The Wisconsin Supreme Court is the court of last resort. Wisconsin also operates specialty courts, including drug treatment courts, mental health courts, and veterans treatment courts, in many counties. Federal criminal cases are handled by the Western and Eastern Districts of Wisconsin.

Damages & Penalties

Wisconsin's felony penalties by class are: Class A, life imprisonment; Class B, up to 60 years; Class C, up to 40 years and $100,000 fine; Class D, up to 25 years and $100,000 fine; Class E, up to 15 years and $50,000 fine; Class F, up to 12.5 years and $25,000 fine; Class G, up to 10 years and $25,000 fine; Class H, up to 6 years and $10,000 fine; and Class I, up to 3.5 years and $10,000 fine. Misdemeanor penalties are: Class A, up to 9 months and $10,000 fine; Class B, up to 90 days and $1,000 fine; and Class C, up to 30 days and $500 fine. Wisconsin's repeat offender enhancement (Wis. Stat. § 939.62) adds up to six years for misdemeanants and varies for felons based on the underlying offense classification. Wisconsin does not have a formal three-strikes law.

Recent Legislative Changes

Wisconsin expanded its expungement law in 2019 to allow individuals up to age 25 (raised from under 25) to be eligible for expungement at sentencing, and in subsequent years considered further expansion. The state's Castle Doctrine Law has been in effect since 2011. Wisconsin's marijuana laws have remained unchanged at the state level despite significant local efforts to reduce penalties. The state has expanded drug treatment courts and invested in alternatives to incarceration, particularly in response to the opioid and methamphetamine crises. Wisconsin has also implemented body camera requirements for some law enforcement agencies and enhanced training requirements.

Frequently Asked Questions