That the person may request a hearing on the revocation within 10 days by mailing or delivering a written request to the court whose address is specified in the notice. If no request for a hearing is received within the 10-day period, the revocation period commences 30 days after the notice is issued.
Whether the officer detected any presence of alcohol, controlled substance, controlled substance analog or other drug, or a combination thereof, on the person or had reason to believe that the person was violating or had violated s. 346.63 (7)
Whether the person refused to permit the test. The person shall not be considered to have refused the test if it is shown by a preponderance of evidence that the refusal was due to a physical inability to submit to the test due to a physical disability or disease unrelated to the use of alcohol, controlled substances, controlled substance analogs or other drugs.
That if it is determined that the person refused the test there will be an order for the person to comply with assessment and a driver safety plan.
The use of the notice under par. (a)
by a law enforcement officer in connection with the enforcement of this section is adequate process to give the appropriate court jurisdiction over the person.
If a law enforcement officer informs the circuit court that a person has refused to submit to a test under sub. (3) (a)
, the court shall be prepared to hold any requested hearing to determine if the refusal was proper. The scope of the hearing shall be limited to the issues outlined in par. (a) 5.
or (am) 5. Section 967.055
applies to any hearing under this subsection.
At the close of the hearing, or within 5 days thereafter, the court shall determine the issues under par. (a) 5.
or (am) 5.
If all issues are determined adversely to the person, the court shall proceed under sub. (10)
. If one or more of the issues is determined favorably to the person, the court shall order that no action be taken on the operating privilege on account of the person's refusal to take the test in question. This section does not preclude the prosecution of the person for violation of s. 346.63 (1)
or a local ordinance in conformity therewith, s. 346.63 (2)
, 940.09 (1)
If the court determines under sub. (9) (d)
that a person improperly refused to take a test or if the person does not request a hearing within 10 days after the person has been served with the notice of intent to revoke the person's operating privilege, the court shall proceed under this subsection. If no hearing was requested, the revocation period shall begin 30 days after the date of the refusal. If a hearing was requested, the revocation period shall commence 30 days after the date of refusal or immediately upon a final determination that the refusal was improper, whichever is later.
The court shall revoke the person's operating privilege under this paragraph according to the number of previous suspensions, revocations or convictions that would be counted under s. 343.307 (2)
. Suspensions, revocations and convictions arising out of the same incident shall be counted as one. If a person has a conviction, suspension or revocation for any offense that is counted under s. 343.307 (2)
, that conviction, suspension or revocation shall count as a prior conviction, suspension or revocation under this subdivision.
Except as provided in subd. 3.
, for the first improper refusal, the court shall revoke the person's operating privilege for one year. After the first 30 days of the revocation period, the person is eligible for an occupational license under s. 343.10
Except as provided in subd. 4m.
, if the number of convictions, suspensions and revocations in a 5-year period equals 2, the court shall revoke the person's operating privilege for 2 years. After the first 90 days of the revocation period, the person is eligible for an occupational license under s. 343.10
if he or she has completed the assessment and is complying with the driver safety plan.
Except as provided in subd. 4m.
, if the number of convictions, suspensions and revocations in a 10-year period equals 3 or more, the court shall revoke the person's operating privilege for 3 years. After the first 120 days of the revocation period, the person is eligible for an occupational license under s. 343.10
if he or she has completed the assessment and is complying with the driver safety plan.
If there was a minor passenger under 16 years of age in the motor vehicle at the time of the incident that gave rise to the improper refusal, the applicable minimum and maximum revocation periods under subd. 2.
for the improper refusal are doubled.
The 5-year or 10-year period under this paragraph shall be measured from the dates of the refusals or violations which resulted in revocations or convictions.
Except as provided in subd. 1. a.
, the court shall order the person to submit to and comply with an assessment by an approved public treatment facility as defined in s. 51.45 (2) (c)
for examination of the person's use of alcohol, controlled substances or controlled substance analogs and development of a driver safety plan for the person. The court shall notify the person and the department of transportation of the assessment order. The court shall also notify the person that noncompliance with assessment or the driver safety plan will result in license suspension until the person is in compliance. The assessment order shall:
If the person is a resident, refer the person to an approved public treatment facility in the county in which the person resides. The facility named in the order may provide for assessment of the person in another approved public treatment facility. The order shall provide that if the person is temporarily residing in another state, the facility named in the order may refer the person to an appropriate treatment facility in that state for assessment and development of a driver safety plan for the person satisfying the requirements of that state.
If the person is a nonresident, refer the person to an approved public treatment facility in this state. The order shall provide that the facility named in the order may refer the person to an appropriate treatment facility in the state in which the person resides for assessment and development of a driver safety plan for the person satisfying the requirements of that state.
Require a person who is referred to a treatment facility in another state under subd. 1. a.
to furnish the department written verification of his or her compliance from the agency which administers the assessment and driver safety plan program. The person shall provide initial verification of compliance within 60 days after the date of his or her conviction. The requirement to furnish verification of compliance may be satisfied by receipt by the department of such verification from the agency which administers the assessment and driver safety plan program.
The department of health and family services shall establish standards for assessment procedures and the driver safety plan programs by rule. The department of health and family services shall establish by rule conflict of interest guidelines for providers.
Prior to developing a plan which specifies treatment, the facility shall make a finding that treatment is necessary and appropriate services are available. The facility shall submit a report of the assessment and the driver safety plan within 14 days to the county department under s. 51.42
, the plan provider, the department of transportation and the person, except that upon request by the facility and the person, the county department may extend the period for assessment for not more than 20 additional workdays. The county department shall notify the department of transportation regarding any such extension.
The assessment report shall order compliance with a driver safety plan. The report shall inform the person of the fee provisions under s. 46.03 (18) (f)
. The driver safety plan may include a component that makes the person aware of the effect of his or her offense on a victim and a victim's family. The driver safety plan may include treatment for the person's misuse, abuse or dependence on alcohol, controlled substances or controlled substance analogs, attendance at a school under s. 345.60
, or both. If the plan requires inpatient treatment, the treatment shall not exceed 30 days. A driver safety plan under this paragraph shall include a termination date consistent with the plan which shall not extend beyond one year. The county department under s. 51.42
shall assure notification of the department of transportation and the person of the person's compliance or noncompliance with assessment and treatment. The school under s. 345.60
shall notify the department, the county department under s. 51.42
and the person of the person's compliance or noncompliance with the requirements of the school. Nonpayment of the assessment fee or, if the person has the ability to pay, nonpayment of the driver safety plan fee is noncompliance with the court order. If the department is notified of noncompliance, it shall suspend the person's operating privilege until the county department under s. 51.42
or the school under s. 345.60
notifies the department that the person is in compliance with assessment or the driver safety plan. The department shall notify the person of the suspension, the reason for the suspension and the person's right to a review. A person may request a review of a suspension based upon failure to comply with a driver safety plan within 10 days of notification. The review shall be handled by the subunit of the department of transportation designated by the secretary. The issues at the review are limited to whether the driver safety plan, if challenged, is appropriate and whether the person is in compliance with the assessment order or the driver safety plan. The review shall be conducted within 10 days after a request is received. If the driver safety plan is determined to be inappropriate, the department shall order a reassessment and if the person is otherwise eligible, the department shall reinstate the person's operating privilege. If the person is determined to be in compliance with the assessment or driver safety plan, and if the person is otherwise eligible, the department shall reinstate the person's operating privilege. If there is no decision within the 10-day period, the department shall issue an order reinstating the person's operating privilege until the review is completed, unless the delay is at the request of the person seeking the review.
Notwithstanding par. (c)
, if the court finds that the person is already covered by an assessment or is participating in a driver safety plan or has had evidence presented to it by a county department under s. 51.42
that the person has recently completed assessment, a driver safety plan or both, the court is not required to make an order under par. (c)
. This paragraph does not prohibit the court from making an order under par. (c)
, if it deems such an order advisable.
One penalty for improperly refusing to submit to a test for intoxication regarding a person arrested for a violation of s. 346.63 (2m)
or a local ordinance in conformity therewith is revocation of the person's operating privilege for 6 months. If there was a minor passenger under 16 years of age in the motor vehicle at the time of the incident that gave rise to the improper refusal, the revocation period is 12 months. After the first 15 days of the revocation period, the person is eligible for an occupational license under s. 343.10
. Any such improper refusal or revocation for the refusal does not count as a prior refusal or a prior revocation under this section or ss. 343.30 (1q)
and 346.65 (2)
. The person shall not be required to submit to and comply with any assessment or driver safety plan under pars. (c)
NOTE: Par. (em) is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
The department may make any order which the court is authorized or required to make under this subsection if the court fails to do so.
The court or department shall provide that the period of suspension or revocation imposed under this subsection or under sub. (7)
shall be reduced by any period of suspension or revocation previously served under s. 343.30 (1p)
if both suspensions or revocations arose out of the same incident or occurrence. The court or department shall order that the period of suspension or revocation imposed under this subsection or sub. (7)
run concurrently with any time remaining on a suspension or revocation imposed under s. 343.30 (1p)
arising out of the same incident or occurrence.
(10m) Refusals; seizure, immobilization or ignition interlock of a motor vehicle.
If the person whose operating privilege is revoked under sub. (10)
has 2 or more prior convictions, suspensions or revocations, as counted under s. 343.307 (1)
, within a 10-year period, the procedure under s. 346.65 (6)
shall be followed regarding the immobilization or seizure and forfeiture of a motor vehicle owned by the person or the equipping of a motor vehicle owned by the person with an ignition interlock device.
The department shall promulgate rules under ch. 227
necessary to administer this section. The rules shall include provisions relating to the expeditious exchange of information under this section between the department and law enforcement agencies, circuit courts and district attorneys. The rules may not affect any provisions relating to court procedure.
History: 1987 a. 3
; 1989 a. 7
; 1991 a. 39
; 1993 a. 16
; 1995 a. 27
, 9126 (19)
; 1995 a. 113
; s. 13.93 (2) (c).
See note to Art. I, sec. 8, citing State v. Driver, 59 W (2d) 35, 207 NW (2d) 850.
The implied consent law must be liberally construed to effectuate its policies, since it was intended to facilitate the taking of tests for intoxication and not to inhibit the ability of the state to remove drunken drivers from the highway. Scales v. State, 64 W (2d) 485, 219 NW (2d) 286.
Miranda warnings are not required when an arrested driver is asked to submit to a test for intoxication under the implied consent statute. State v. Bunders, 68 W (2d) 129, 227 NW (2d) 727.
Neither ss. 885.235 (1) nor 946.75 affords driver right to counsel prior to submitting to intoxication test. Driver is obliged to take test promptly or to refuse it promptly. State v. Neitzel, 95 W (2d) 191, 289 NW (2d) 828 (1980).
State need not prove that notices were sent to state officers under sub. (3) (b), 1985 stats. [now sub. (9) (a)]. State v. Polinski, 96 W (2d) 43, 291 NW (2d) 465 (1980).
Where driver consented to officer's request to test breath, but officer decided to test urine instead, driver's refusal to test urine justified revocation of driver's license. State v. Pawlow, 98 W (2d) 703, 298 NW (2d) 220 (Ct. App. 1980).
State need not affirmatively prove compliance with administrative code procedures as foundation for admission of breathalyzer test. City of New Berlin v. Wertz, 105 W (2d) 670, 314 NW (2d) 911 (Ct. App. 1981).
Where driver pled guilty to underlying OWI charge, charge of refusing test under s. 343.305, 1979 stats., was properly dismissed as unnecessary. State v. Brooks, 113 W (2d) 347, 335 NW (2d) 354 (1983).
Breathalyzer approved in administrative code has prima facie presumption of accuracy. State v. Dwinell, 119 W (2d) 305, 349 NW (2d) 739 (Ct. App. 1984).
See note to s. 345.421, citing State v. Ehlen, 119 W (2d) 451, 351 NW (2d) 503 (1984).
Judge's erroneous exclusion of defendant's explanation for refusal to test blood was not harmless error. State v. Bolstad, 124 W (2d) 576, 370 NW (2d) 257 (1985).
At revocation hearing under sub. (3) (b) 5., 1985 stats. [now sub. (9) (a) 5.], state need not establish to reasonable certainty that defendant was actual driver of vehicle stopped by police. Probable cause standard satisfies due process. State v. Nordness, 128 W (2d) 15, 381 NW (2d) 300 (1986).
Phrase in sub. (2) (c), 1985 stats. [now sub. (3) (b)], "not capable of withdrawing consent," must be construed narrowly and applied infrequently. State v. Disch, 129 W (2d) 225, 385 NW (2d) 140 (1986).
Under facts of case, state's refusal to provide alternative blood alcohol test did not violate due process. State v. McCrossen, 129 W (2d) 277, 385 NW (2d) 161 (1986).
Arresting officer need not inform accused that test refusal could be used against accused at trial. State v. Crandall, 133 W (2d) 251, 394 NW (2d) 905 (1986).
Mental disorder cannot justify test refusal unless severe enough that driver is deemed under sub. (3) (b) not to have refused at all. State v. Hagaman, 133 W (2d) 381, 395 NW (2d) 617 (Ct. App. 1986).
Implied consent law does not prevent state from obtaining chemical test evidence by alternative constitutional means. State v. Zielke, 137 W (2d) 39, 403 NW (2d) 427 (1987).
Under sub. (4) (c) accused must be informed of possible penalties, including possible fine, jail sentence and suspension or revocation of operating privileges. County of Eau Claire v. Resler, 151 W (2d) 645, 446 NW (2d) 72 (Ct. App. 1989).
Sub. (4) (c) does not conflict with sub. (8) (b) 2. d.; sub. (4) requires that accused be informed of ramifications of any test result of 0.1% or more, not of each one. Whether each test results in threshold BAC can only be challenged at administrative hearing. Any result over 0.1% will cause immediate suspension, but department may consider each result in determining whether suspension continues. City of Mequon v. Hess, 158 W (2d) 500, 463 NW (2d) 687 (Ct. App. 1990).
Appeal of oral revocation order under sub. (10) may not be taken under s. 808.03 (1). State v. Borowski, 164 W (2d) 730, 476 NW (2d) 316 (Ct. App. 1991).
Evidence of refusal not admissible where defendant not fully informed of consequences in accordance with sub. (4). State v. Algaier, 165 W (2d) 515, 478 NW (2d) 292 (Ct. App. 1991).
Substantial compliance with requirements of (4) where defendant was actually informed of all rights and penalties relating to him was sufficient. State v. Piskula, 168 W (2d) 135, 483 NW (2d) 250 (Ct. App. 1992). See also Village of Oregon v. Bryant, 188 W (2d) 680, 524 NW (2d) 635 (1994).
Sub. (9) (a) requirement that a notice of intent to revoke shall be prepared and served immediately is directory and not mandatory. State v. Moline, 170 W (2d) 531, 489 NW (2d) 667 (Ct. App. 1992).
An accused's request under sub. (5) (a) for his or her own test only requires the arresting agency to make the accused available to obtain the test, not to take an active part in obtaining the test. State v. Vincent, 171 W (2d) 124, 490 NW (2d) 761 (Ct. App. 1992).
Where officer knows the defendant was licensed as a commercial operator and the ensuing revocation revokes all operating privileges, the commercial operator warnings, under sub. (4), must be given. State v. Geraldson, 176 W (2d) 487, 500 NW (2d) 415 (Ct. App. 1993).
Sub. (9) (a) 1. does not require the issuance of a citation before a request is made that the defendant submit to a chemical test. State v. Sutton, 177 W (2d) 709, 503 NW (2d) 326 (Ct. App. 1993).
Overstatement of the potential penalties for refusal to submit to a chemical test is substantial compliance with sub. (4) and not grounds for reversing a revocation for refusal. State v. Sutton, 177 W (2d) 709, 503 NW (2d) 326 (Ct. App. 1993).
There is no error in informing a driver of all warnings under sub. (4), including those applying to only commercial operators and those applying to only noncommercial operators, regardless of the driver's status. Village of Elm Grove v. Landowski, 181 W (2d) 137, 510 NW (2d) 752 (Ct. App. 1993).
Sub. (5) (b) requires a person drawing blood "under the direction of a physician" to have general authorization from the physician rather than a specific order in each case. State v. Penzkofer, 184 W (2d) 262, 516 NW (2d) 774 (Ct. App. 1994).
The state's burden of persuasion at a suppression hearing is significantly greater than at a refusal hearing; consequently a defendant is not precluded from relitigating the issue of probable cause at a suppression hearing. State v. Wille, 185 W (2d) 673 518 NW (2d) 325 (Ct. App. 1994).
Once a suspect has refused a second alternate blood alcohol test, there is no continuing obligation to accommodate future requests for an alternate test. State v. Stary, 187 W (2d) 266, 522 NW (2d) 32 (Ct. App. 1994).
Refusal to submit to a field sobriety test was properly admitted as evidence to determine probable cause for arrest for intoxicated operation of a motor vehicle. State v. Babbit, 188 W (2d) 349, 525 NW (2d) 102 (Ct. App. 1994).
A suspect must be properly informed under the implied consent law before evidence of a refusal may be admitted at a subsequent trial, but the state is not prevented from using the evidence if a revocation hearing is not held. State v. Donner, 192 W (2d) 305, 531 NW (2d) 369 (Ct. App. 1995).
A driver's "subjective confusion" over the right not to take the chemical test is not grounds for challenging the propriety of the warnings given prior to administering the test. There is a 3-part standard to be applied in determining the adequacy of the warnings. County of Ozaukee v. Quelle, 198 W (2d) 269, 542 NW (2d) 196 (Ct. App. 1995).
Criminal prosecution for operating a motor vehicle with a prohibited blood alcohol content subsequent to administrative suspension of a driver's operating privileges does not constitute multiple punishment and therefore does not constitute double jeopardy. State v. McMaster, 198 W (2d) 542, 543 NW (2d) 499 (Ct. App. 1995).
Where a law enforcement officer has reasonable grounds to believe that an unconscious person is guilty of driving while intoxicated, a blood sample may be taken, and the test results are admissible in evidence and may not be excluded by the trial court. 59 Atty. Gen. 183.
Implied consent law discussed. 62 Atty. Gen. 174.
Method by which a law enforcement agency may provide 2 tests for blood alcohol content under sub. (1), 1985 stats. [now sub. (2)] discussed. The agency is not required to actually own or physically possess the testing devices. 63 Atty. Gen. 119.
This section, as affected by ch. 193, laws of 1977, does not vest in municipal courts the power to conduct hearings to determine the reasonableness of a refusal to submit to chemical tests to determine blood alcohol levels. 67 Atty. Gen. 185.
Under s. 343.305 (1) and (4), 1985 stats., hospital personnel must administer test and report results at request of officer, subject to penalty under 946.40. 68 Atty. Gen. 209.
Federal law requiring confidentiality of patient records has no application to the taking of a blood sample under this section. 73 Atty. Gen. 45
Law enforcement officer may use physical restraint, subject to constitutional limitations, in order to draw legally justified blood sample. Refusal by health professional to comply with law enforcement officer's authorized request to take blood sample from person whom officer has legally restrained by force constitutes refusal to aid an officer under 946.40. 74 Atty. Gen. 123
Refusal hearing under this section discussed. 77 Atty. Gen. 4
Massachusetts implied consent law which mandates suspension of license for refusal to take breath-analysis test did not violate Due Process Clause. Mackey v. Montrym, 443 US 1 (1979).
Admission into evidence of defendant's refusal to submit to blood-alcohol test did not deny right against self-incrimination. South Dakota v. Neville, 459 US 553 (1983).
Wisconsin's new administrative suspension statute. 72 MLR 120 (1988).
The new OMVWI law: Wisconsin changes its approach to the problem of drinking and driving. Hammer, WBB April, May 1982.
Technical problems corrected: Operating while intoxicated. Hancock and Maassen. WBB Apr. 1987.
Wisconsin's breath testing program. Booker. WBB Oct. 1988.
Rethinking Refusal: Wisconsin's Implied Consent Law. Lotke. Wis. Law. July 1993.
Prior convictions, suspensions or revocations to be counted as offenses. 343.307(1)
The court shall count the following to determine the length of a revocation or suspension under s. 343.30 (1q) (b)
and to determine the penalty under s. 346.65 (2)
Convictions for violations under s. 346.63 (1)
, or a local ordinance in conformity with that section.