OWL Question

[Patrol63]

I recently ran into this situation. I believe I did right but would like to hear what everyone else thinks.

I stopped an individual and ran the driving status. Driver came back one prior OWL in 2008, one prior OAS in 2009 and now here I am. It shows this would be OWL 2nd but also shows a status of Suspended. These are the only entries on this individuals record. Now since the OWL 1st happened before OAS, was this individual given a status of suspended after this person was convicted of OWL 1st? This individual has never had a driver license issued. What course of action do you take? I wrote OWL 2nd and arrested the individual.

[DeputyZee]

Patrol63, unfortunetly what you did was not correct. I agree that it should be that way, but it isn't the reality of Wisconsin anymore. In Wisconsin you have to write the person exactly what their DL status says. Even though they never had a DL, they are no longer OWL because the state issued them a DL# and suspended it. If they didn't suspend it, you'd be good.

[Patrol63]

Deputy Zee thank you for your response. I do have a question beyond that now. So since they have one prior OAS and OWL how would one ever issue the 2nd offense OWL?

Also say for instance this individual has no drivers license issued but shows a Suspended status and is in an accident causing injury? do I issue 343.44(1)(am)or (b)Knowingly operating while suspended/revoked,causing injury OR 343.05(5)(b)3b Knowingly operating w/o a valid driver's license, causing injury?

Also if they are convicted of OWL 1st offense with no other record and give them a suspended status after conviction, how would a person ever cite OWL 2nd offense? I believe you could for expired, but why punish the person who has a drivers license but might have let it accidently let it expire compared to a person who has never went through proper driver education classes.

I look forward to hearing your feedback. I have talked about this OWL situation with other officers but like to hear what others think. I have mixed feedback regarding this situation.

Thanks again

[DeputyZee]

Deputy Zee thank you for your response. I do have a question beyond that now. So since they have one prior OAS and OWL how would one ever issue the 2nd offense OWL?

The only way would be if the suspension was to be lifted from their driving status.

Also say for instance this individual has no drivers license issued but shows a Suspended status and is in an accident causing injury? do I issue 343.44(1)(am)or (b)Knowingly operating while suspended/revoked,causing injury OR 343.05(5)(b)3b Knowingly operating w/o a valid driver's license, causing injury?

It would be 343.44(1)(am) or (b) as the driver is Suspended status.

Also if they are convicted of OWL 1st offense with no other record and give them a suspended status after conviction, how would a person ever cite OWL 2nd offense? I believe you could for expired, but why punish the person who has a drivers license but might have let it accidently let it expire compared to a person who has never went through proper driver education classes.

It sucks, but that's how it is. Never issued/Suspended = OAS. I stopped someone the other night who had 2 OWL, never issued... but was suspended. Here is OAS #1. It really sucks, but that's how it works. Also, remember that Expired within 3 Months is different than OWL.

[Patrol63]

Thanks again for the reply Deputy Zee. Makes more sense to write the citation for OAS than take everyone to jail for it. It was much nicer when we had the car due to the arrest. Its crazy, its almost half and half that im getting back on this matter. Stay Safe!

[Badgerland]

Zee, I have to disagree with you. What Patrol63 did was fine. This is the description of 343.05(3)(a):

(a) No person may operate a motor vehicle which is not a commercial
motor vehicle upon a highway in this state unless the person
possesses a valid operator’s license issued to the person by the
department which is not revoked, suspended, canceled or expired.

Writing someone for OWL while they are suspended or revoked is well within the statute. For a long time in Dane County, we were issuing anyone who was driving on a revoked driving status a civil OWL citation instead of having a criminal OAR charge. I'm sure the opposite would apply as well. (Writing criminal OWL instead of civil OWS.)

[jeeper]

.....................

[SRT936]

There was a Dave Perlman thing addressing this very issue recently. I looked on WIlENT and couldn't find it, I think I may have it in my work e-mail and will check when I go back Friday night. Anyways, you MUST write the citation that fits the driving status per DOT. ie. Someone has never held a valid DL but is currently revoked, must be issued OAR 343.44(1)(b), same with OWS (343.44(1)(a).) Once they have had their DL status suspended, revoked, etc. they are considered that and no longer considered OWL. I paid special attention to this as it had come out shortly after our local DA said they would no longer prosecute criminal OAR but before the law changed de-criminalizing many OARs. A couple of us were trying the OWL thing, but this new ruling made what we were doing legally incorrect. IIRC, there was also a memo from the DA's office dealing with this same issue shortly after the OAR law changed.

So, DeputyZee looked to be correct after all.

+1. Not that long ago (prior to July 01, 2009) you could, technically, write an OWL for an OWS or OAR if you wanted to. The new act that changed the OAR laws and cleaned up some other language, says that the citation must be issued for the actual status shown on the DOT record.

[Patrol63]

I understand all of this. But for argument sake a person has never been issued a DL, why can't you write the OWL? The purpose of the statue is to make it so people get drivers license.

So your telling me that a person with an expired DL for longer than 3 months will pay more of a penalty than an individual that has never had a DL and shows a suspended/revoked status?

[DeputyZee]

The reason for this new way of doing it is most likely not a law enforcement issue. I'd venture a guess that it stemmed from somewhere else. I used to ALWAYS write people OWL when they were suspended or revoked AND never issued a DL. Now... I don't because I can't. It sucks, but it is what it is.

Patrol63, The reason that you have to write people based on their current driving status is probably for consistancy and mainly because the State of Wisconsin says you have to. They tell us how to do what we do, so we do.

[Stop Resisting]

Maybe I'm not following this very well, but,

Why would you want to issue an OAR or SUS an OWL citation? I don't have the bond book in front of me, is there any difference to penalties as far as fine/points are concerned?

I guess, why hand out OWL citations as you can get a large number of these before revocation (might be infinite, again no bond book)? At least on SUS, after a certain number in a time frame there is revocation.

[Monty Ealerman]

The driving privilege can be explicitly suspended/revoked as part of the state's response to a person found to have been operating without a license, so that if the person is found to be operating subsequently, the person isn't merely in violation of the statute requiring licensure; he's also in violation of an explicit order/notice issued directly to him telling him that whatever privilege he may otherwise have had to operate a motor vehicle on the public ways is officially suspended/revoked. So that should mean you can write him for one or the other or both. He is operating in defiance of both the licensure statute and the order of suspension/revocation.

The directive to you must write for whatever status DOT shows does not mean that you may write only for the suspension/revocation; you may also write for the not having a license, because both of the statuses are available. The state does not have to issue a license before issuing an order of suspension/revocation. The offender still doesn't have a license, and further, he's been notified that whatever driving privileges he may otherwise have had are currently suspended/revoked.

If the DA doesn't want to prosecute for both offenses, that's up to him, but absent direct orders to the contrary, you can still write the offender for either offense, or both. If your departmental policy says to write the way the DA says he'll prosecute, well that's your department's policy, and for that reason you have to go along with it.

[DeputyZee]

Stop_resisting,

I would in the past write OWL because #2 and further was a crime and they went to jail. So if they were suspended from OWL#1, I would write OWL #2 and take them to jail. That's why I always did OWL if they were never issued. Now I just write the status.

Monty,

I don't think writing both would fly in many agencies within Wisconsin. That's like writing someone a speeding ticket when they are fleeing from you at 100+. That double-tap won't be allowed, atleast for where I work and where I used to work. Especially when the state is specifially telling us to write for driver's listed status. If we could write both, then we could pick to write either/or too I would think.

[Monty Ealerman]

DeputyZee:

In general if a person commits multiple offenses you can write for any or all of them. A requirement to write for an offense of violation of the listed status doesn't mean you can't write for any other offenses. I can see why you might think that you couldn't write him at all if you didn't comply with the requirement to write for operating in violation of the listed status, but if he's never had a license, the fact that he got a suspension for operating in that status shouldn't exempt him from the additional penalties for a subsequent offense of operating without a license.

Is it your position, hypothetically, that a driver who was going to be stopped for an equipment violation and who subsequently exceeds the speed limit in attempting to escape the Police shouldn't be cited for the speeding as well as for the attempted escape? Why not? Why shouldn't a person who exceeds the speed limit in trying to elude you be cited for the additional violation?

If someone tries to escape from the police and drives at 100 mph to do so, he is indeed committing multiple offenses, and may be written for any or all of them or for any subset of them. If his reason for trying to elude is that his driving privileges have been explicitly suspended because he was was previously caught driving while never having had a license, he's guilty of actively fleeing from the police, failure to stop for the police, reckless driving, speeding, driving without a license, and driving while driving privilege suspended. I think you should write him for everything and let the Prosecutor and the Court decide what to do about it.

Regards,

Monty

[DeputyZee]

Monty,

Both where I work now and where I used to work would NOT support issuing citations for speeding during a pursuit. Same with OWL who are Suspended. If I issued both, I would be pulled into the office to have a chat.

Trust me, I was at the window of a vehicle when I told him to get out... He took off and I was not happy. I wrote him 12 citations for everything he did illegal... I was pulled into the office and told that by charging him for fleeing an officer I was NOT going to be citing him for the actions he took to accomplish that. From what I was told, it is not correct to charge someone and then issue them a citation for something being used as an element of the charge. I am not saying that is how it has to be, just that it is how it is where I am and was.