Wisconsin Act 224 went into effect April 10 and is aimed to create mandatory minimum penalties for drunken car crashes that cause substantial injury and for seventh- to 10th-offense drunken driving charges.
But while drafting the bill, legislators cut text from existing laws, preventing prosecutors from pursuing criminal charges for simple injury crashes, Dodge County District Attorney Kurt Klomberg told the Reporter Media.
"This is not a matter of discretion," Klomberg said. "Prosecutors are basically stuck with the law as it is written and in this situation we can't charge an OWI-Injury. ... Right now it is not a criminal charge in the state of Wisconsin - it (the charge) does not exist."
Prosecutors now can't charge a drunken driver who causes bruises and scrapes with operating while intoxicated-injury, a criminal offense. Their legal weapons are limited to a simple OWI, which isn't a criminal charge for first offenders, Klomberg said.
Investigators will need to spend more time proving serious injuries, he said.
Kirk Everson, a Fond du Lac defense attorney, said sometimes when legislators try to make laws tougher, they open more doors for defense.
"We live in America and we're not going to do away with due process," Everson said. "It doesn't surprise me that the prosecutors got bit. When we have politicians running around glad-handing, passing laws because they're trying to be popular, not because they're good laws, that's what we get."
Rep. Jon Richards, a Milwaukee Democrat who is running for attorney general, and Rep. Jim Ott, R-Grafton, introduced the bill in the state Assembly.
Richards said the law is still an effective tool for prosecuting high-risk drunken drivers, despite the loophole.
"We always want to make laws that work well and protect the public," Richards said. "The legislature always has to be mindful that there might be a better way to state a law or state a solution, and they have to be open-minded about correcting that."