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Why Does Wisconsin Have So Many Drunk Drivers?

By Andrew Mishlove on December 17, 2015


I was interviewed by the Wisconsin Law Journal, on the topic of why Wisconsin has so many drunk drivers, since there is (yet again) a series of proposals in the legislature to toughen Wisconsin drink driving laws. It’s well-known that Wisconsin has about double the rate of drunk driving arrests than the national average. I’m proud to defend people accused of drunk driving; because I believe in due process of law and the presumption of innocence. I have also seen the damage caused to decent people by Wisconsin’s failed system of drunk driving law enforcement.

So why does Wisconsin have such a terrible problem? The answer is simple: politicians are not willing to do what it takes.

Wisconsin, more than other states, has a culture of alcohol, and a legal system that attacks the symptoms, rather than the problem. The system protects the alcohol industry, while punishing the drinker. Finally, we have the complete failure of our system of non-criminal first offense prosecutions, that cannot be reduced or amended.

Unlike other states, Wisconsin has no “dram shop law.” Dram shop laws hold tavern keepers responsible for over-serving patrons. So, if I am visibly drunk, and the bartender keeps serving me – and then allows me to drive away, the tavern could be held liable for any damages that I cause. Right now, the only time a tavern-keeper can be held liable is if he serves a minor. This is deplorable. Other states have dram shop laws that work very well, and the tavern industry has adapted to it. Wisconsin’s history in this regard is shameful.

In 1849, Wisconsin passed its first dram shop law, requiring tavern-keeprs to provide financial support for drunkards. That didn’t last too long, since Wisconsin was always an anti-temperance state. Today, Wisconsin operates under Wis. Stat. sec. 125.035. This statute was passed in 1985, in response to a Wisconsin Supreme Court case that recognized dram shop liability for tavern-keepers. See Koback v. Crook. Rather than consider the problem of drunken-driving, the legislature enacted a statute granting civil immunity to tavern-keepers who serve visibly drunken patrons. It doesn’t matter how drunk I am. You can keep serving me in Wisconsin, without fear of having to pay for the damages. So, while the legislature panders to the tavern lobby, individual legislators thump their chests about being tough on drunk driving.

Do not think that the legislature is concerned with the principle of individual responsibility — the argument that the individual who drinks too much is responsible for his own behavior, and no one else should be held to account. In theory, from a moral point of view, that might be a good argument. It fails to consider, however, the impact that it has on the occurrence of drunk driving. I’m confident that the family of any victim of a drink driving homicide takes very little comfort in knowing that our state provides immunity to negligent tavern-keepers, because we protect the principle of individual responsibility . In fact, the argument is utterly hypocritical; since Wisconsin has a statute that make it a crime to serve a visibly drunken patron, but still provides civil immunity. Wis. Stats. 125.07(2). It’s not about morality, or public safety; it’s about the money. While it may, on the surface, look tough to provide a criminal penalty; in fact, the criminal prosecution under this statute is so rare, that is simply doesn’t matter. In 35 years of practicing law, I have never seen a single occasion where anyone has been charged with this offense. No one cares about it. It’s a sham. If the legislature really wanted to deter drunk driving, they would repeal civil immunity for tavern-keepers.

Wisconsin is the only state in which first-offense drunk driving is a civil traffic ticket. In every other state, first offense drunk driving carries at least the possibility of a jail sentence. So, we have the most lenient first offense law in the country. However, we have a law that limits, if not prohibits, negotiation, amendment or reduction of a drunk driving charge. So, our lenient law is very strictly enforced. This system is unique, and it is a complete failure. In most other states, first offense drunk driving is a much more serious offense, but the accused may avoid the consequences by going through a first-offender’s treatment program. A bigger carrot with a bigger stick. This system works far better than ours. So, why don’t we have it? Simple. The answer is, once again, money. Right now, there are almost 20,000 first offense prosecutions per year in our state. Many of them are prosecuted under municipal traffic laws, in municipal traffic courts, by municipal prosecutors. If Wisconsin were to adopt a more rational system, we would have to move those cases to the circuit courts, where criminal cases are heard. That would require hiring more prosecutors, and judges, while at the same time the local authorities would no longer have the revenue from fines imposed. Effective alcohol education programs are also expensive, and the state has been unwilling to fund them. Again, the legislature wants to thump its chest about being tough on drink driving, but is not willing to actually do anything effective.

All of this has an enormous cost. First, Wisconsin has far more drunk driving than other states. Second, decent, hardworking people who make a single mistake, have their careers and lives destroyed by a drunk driving prosecution, with no real first-offender program.

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