MADISON — Driving drunk is not only dangerous, it's against the law, but should it be a crime? There are at least two groups who do not want drunk drivers to be labeled as criminals. One has been a powerful force in state politics for generations. The other is a newcomer. They have different motivations, but a common goal -- to keep Wisconsin from doing what 49 other states did a long time ago.
A new driver and a first-time offender
It used to drive Dawn Church crazy the way her daughter was obsessed with capturing every memory. She took pictures of her family and friends constantly, and her smartphone was filled to the brim with bright, smiling selfies.
"I'm thankful for that now, because that's all I have left of her," Church said.
Hannah Church, 16, had only been a licensed driver for 73 days when a pickup truck smashed into her Nissan Altima at 65 miles per hour on Oct. 7, 2016. She didn't stand a chance. Police said Robert Frank, 28, was going the wrong way on a divided highway. His blood alcohol concentration was .134 g/dL.
"My daughter had to pay for that mistake that he made, and I don't even consider it a mistake," Church said. "You don't mistakenly get drunk and drive."
Had Frank survived the crash, he likely would have been charged with homicide for killing Hannah Church. Had police had stopped Frank before the crash, he would not have been charged with a crime at all, because he'd never been convicted of driving drunk before.
Wisconsin stands alone
Wisconsin is the only state in America where driving drunk is not a crime until you get caught twice.
"It's not a misdemeanor," Church said. "It's nothing. We're the only state. Shame on Wisconsin."
"That tells the individual that drunken driving is not a big deal," said State Senator Alberta Darling, (R-River Hills).
Earlier this year, Senator Darling introduced a bill that would make the first offense a misdemeanor. One of her co-sponsors is State Senator Tim Carpenter, (D-Milwaukee).
"We shouldn't be the only state in the nation that doesn't have it," Carpenter said.
Last month, the bill was among a dozen drunk driving proposals heard by a Senate committee, which voted to send four of them to the full Senate.
The bill to criminalize first-time offenders was not among them.
"They haven't hit anything," said State Senator Van Wanggaard, (R-Racine). "They haven't hurt anybody. What we have is working, at this point, for those first offenders."
"Well, it didn't work for my daughter," Church said.
The biggest obstacles for criminalizing first-time OWI offenders
While repeat offenders have frustrated lawmakers for years, data obtained by the FOX6 Investigators showed first-time offenders kill more people: 77% of fatal drunk driving crashes in Wisconsin involved drivers with no prior offenses.
"Why is it so hard to deal with the first offense?" FOX6 Investigator Bryan Polcyn asked State Senator Chris Larson, (D-Milwaukee).
"Because that's what would actually make the difference," Larson replied. "It would change the culture."
Larson, Carpenter, and Church said the biggest obstacle is a familiar one — the Tavern League of Wisconsin.
In just the past two years, the Tavern League of Wisconsin has funneled more than $135,000 in campaign contributions to 62 lawmakers — both Democrats and Republicans. That is nearly half of all current state lawmakers.
No individual has received more than Senate Majority Leader Scott Fitzgerald, (R-Juneau), who has been in power the last four times a bill like this has been introduced.
"Senator Fitzgerald has not allowed them to come up for a vote," Carpenter said.
Fitzgerald's staff said that's not true.
"Senator Scott Fitzgerald did not put any pressure on me to not put this forward," Darling said.
Still, Darling admitted her bill is probably not going anywhere again this year because she doesn't have enough support.
"It will take a while for the Legislature and the public to accept the issue," she said.
First-time OWI opposition
The Tavern League has not taken an official position, but two other groups have, including the Wisconsin Justice Initiative (WJI).
"This bill is a feel-good bill that allows the people who support it to say Wisconsin's going to get tough on crime," said Craig Johnson, a board member for WJI.
WJI is a group formed just three years ago to push for legalized marijuana.
"Impaired is impaired," Church said.
"What we're interested in is being smart on crime, not just being tough on crime," Johnson said.
The group's opposition was a surprise to Larson, who is a proponent of legalized pot.
"That I don't understand," Larson said. "Getting high and getting behind the wheel? Absolutely not."
Perhaps the final blow came on Sept. 24, when a second group registered in opposition.
The Wisconsin Counties Association is concerned about fiscal estimates that show making the first drunk driving offense a crime would require an increase of 15 judges statewide at a cost of $5 million a year. Add in the cost of additional prosecutors and probation officers, and the total estimated price tag could approach $12 million.
"What do we get for that?" Johnson asked. "Do we get any more bang for the buck in terms of deterrence?"
It's a persuasive argument in Madison, but a tough one to accept for a mother whose daughter paid the ultimate price.
"What about the $20,000 funeral I had to come up with money for?" said Church. "What about that? Nobody ever talks about stuff like that. What is my daughter's life worth? Because to me, she's worth more than $12 million."
In a statement sent to FOX6 News, Senator Fitzgerald said:
“I’ve heard from members of the Senate about concerns they have over the costs that could come from this specific proposal. Drunk driving is a scourge on the state and shouldn’t be taken lightly – we’ll continue to look for ways to fight this problem."
“We’re doing a lot of great work right now to crack down on drunk driving, and I anticipate that the Legislature passes some of the measures out there this fall. On top of that, just last session we passed an increase in funding for treatment and diversion courts in Wisconsin that help those struggling with alcoholism get the treatment they need.”
As for the Tavern League of Wisconsin, Executive Director Pete Madland did not respond to a pair of emails seeking comment. In January, Madland did respond to an email from State Senator Andre Jacque, (R-De Pere), who asked if the Tavern League would support a bill to expand the use of ignition interlock devices for all OWI offenders in exchange for expungement of a first OWI offense. Madland responded with this email:
Thank you for reaching out and seeking our input on this proposal. For further reference please send these inquiries to our Government Affairs Director Scott Stenger.
We are having our full board meeting on Jan. 15th and I will place this on the agenda. For now I will give you my thoughts but please do NOT interpret these as the views of the TLW.
I would not object to supporting this initiative if you included stiffer/equal penalties for distracted drivers, cell phone drivers and speeders. NHSTA studies have shown that hands free cell phone use is equal to .08 impairment while regular cell phone use while driving is equal to .10 BAC.
In 2016 speeding killed more people than drunk drivers. What did we do? We passed legislation raising the speed limit. I regularly go 8-10 mph over the limit and law enforcement does nothing. We do not treat a person 10mph over the limit the same as one who is 30mph over the limit. Why wouldn’t we do the same for people and alcohol? The difference between .07999 and .08 is one sip of a beer or wine yet the ramifications are life shattering even though no one may have been harmed.
A cell phone user knows when they are on the phone just as a speeder knows when they are speeding. A person does not know when they are .05,.08,.10 etc.
yet the difference in penalties are dramatic. The difference, alcohol is involved.
Impairment is impairment no matter the cause but the difference in penalties are dramatic. If you want safer roads get tougher on all impaired drivers!
IID’s are expensive and unreliable. Requiring these on someone who may have had an extra sip of an Old Fashioned after eating a fish fry is heavy handed. The .08 person is not the problem as statistics show the average fatality involving alcohol is .18bac, over three times the legal limit. We have never opposed legislation that has gotten tougher on high BAC offenders and repeat offenders and my members will agree this is where the enforcement focus should be.
We have seen a 50% drop in alcohol related fatalities since 2008 and continue in that direction. Our SafeRide Program provided over 91,000 free rides last year.
Current laws are working and we continue to head in the right direction. Let’s focus on the problem, not the social drinker.
Thank you for your time and consideration.
Tavern League of Wisconsin"