343.305(10m)
(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), 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.
Effective date note
NOTE: Sub. (10m) is amended eff. 1-1-02 by
1999 Wis. Act 109 to read:
Effective date text
(10m) Refusals; seizure, immobilization or ignition interlock of a motor vehicle. If the person whose operating privilege is revoked under sub. (10) has one or more prior convictions, suspensions or revocations, as counted under s. 343.307 (1), the procedure under s. 343.301 shall be followed if the court orders the immobilization of the motor vehicle used in the commission of the offense and owned by the person or if the court requires that the person's operating privilege for the operation of "Class D" vehicles be restricted to operating "Class D" vehicles equipped with an ignition interlock device. If the number of convictions under ss. 940.09 (1) and 940.25 in the lifetime of the person whose operating privilege is revoked under sub. (10), plus the total number of other convictions, suspensions and revocations counted under s. 343.307 (1), equals 2 or more, the procedure under s. 346.65 (6) shall be followed if the court orders the seizure and forfeiture of the motor vehicle used in the improper refusal and owned by the person.
343.305(11)
(11) Rules. 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.
343.305 History
History: 1987 a. 3,
27,
399;
1989 a. 7,
31,
56,
105,
359;
1991 a. 39,
251,
277;
1993 a. 16,
105,
315,
317,
491;
1995 a. 27 ss.
6412cnL,
9126 (19);
1995 a. 113,
269,
425,
426,
436,
448;
1997 a. 35,
84,
107,
191,
237,
290;
1999 a. 9,
32,
109.
343.305 Annotation
Administration of a blood or breathalyzer test does not violate a defendant's privilege against self-incrimination. State v. Driver,
59 Wis. 2d 35,
207 N.W.2d 850 (1973).
343.305 Annotation
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 Wis. 2d 485,
219 N.W.2d 286 (1974).
343.305 Annotation
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 Wis. 2d 129,
227 N.W.2d 727 (1975).
343.305 Annotation
There is no right to counsel prior to submitting to an intoxication test. A driver is obliged to promptly take test or refuse the test. State v. Neitzel,
95 Wis. 2d 191,
289 N.W.2d 828 (1980).
343.305 Annotation
The 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 Wis. 2d 43,
291 N.W.2d 465 (1980).
343.305 Annotation
When an officer initially requested a breath test, it was not an irrevocable election preventing the officer from requesting a urine test instead. The driver's refusal to submit urine justified revocation of his driver's license. State v. Pawlow,
98 Wis. 2d 703,
298 N.W.2d 220 (Ct. App. 1980).
343.305 Annotation
The state need not affirmatively prove compliance with administrative code procedures as a foundation for admission of a breathalyzer test. City of New Berlin v. Wertz,
105 Wis. 2d 670,
314 N.W.2d 911 (Ct. App. 1981).
343.305 Annotation
When a driver pled guilty to the underlying OWI charge, a charge of refusing a test under s. 343.305, 1979 stats., was properly dismissed as unnecessary. State v. Brooks,
113 Wis. 2d 347,
335 N.W.2d 354 (1983).
343.305 Annotation
A breathalyzer approved in the administrative code has a prima facie presumption of accuracy. State v. Dwinell,
119 Wis. 2d 305,
349 N.W.2d 739 (Ct. App. 1984).
343.305 Annotation
When blood alcohol content is tested under statutory procedures, the results of the test are mandatorily admissible. The physical sample tested is not evidence intended, required, or even susceptible of being produced by state under s. 971.23 (4) and (5). State v. Ehlen,
119 Wis. 2d 451,
351 N.W.2d 503 (1984).
343.305 Annotation
A judge's erroneous exclusion of a defendant's explanation for a refusal to take test blood was not harmless error. State v. Bolstad,
124 Wis. 2d 576,
370 N.W.2d 257 (1985).
343.305 Annotation
At a revocation hearing under sub. (3) (b) 5., 1985 stats. [now sub. (9) (a) 5.], the state need not establish to a reasonable certainty that the defendant was the actual driver of the vehicle stopped by the police. The probable cause standard satisfies due process. State v. Nordness,
128 Wis. 2d 15,
381 N.W.2d 300 (1986).
343.305 Annotation
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 Wis. 2d 225,
385 N.W.2d 140 (1986).
343.305 Annotation
Under the facts of the case, the state's refusal to provide an alternative blood alcohol test did not violate due process. State v. McCrossen,
129 Wis. 2d 277,
385 N.W.2d 161 (1986).
343.305 Annotation
An arresting officer need not inform an accused that a test refusal can be used against the accused at trial. State v. Crandall,
133 Wis. 2d 251,
394 N.W.2d 905 (1986).
343.305 Annotation
A mental disorder cannot justify a test refusal unless it is severe enough that the driver is deemed under sub. (3) (b) not to have refused at all. State v. Hagaman,
133 Wis. 2d 381,
395 N.W.2d 617 (Ct. App. 1986).
343.305 Annotation
The implied consent law does not prevent the state from obtaining chemical test evidence by alternative constitutional means. State v. Zielke,
137 Wis. 2d 39,
403 N.W.2d 427 (1987).
343.305 Annotation
Under (former) sub. (4) (c) an 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 Wis. 2d 645,
446 N.W.2d 72 (Ct. App. 1989).
343.305 Annotation
Appeal of an oral revocation order under sub. (10) may not be taken under s. 808.03 (1). State v. Borowski,
164 Wis. 2d 730,
476 N.W.2d 316 (Ct. App. 1991).
343.305 Annotation
Evidence of refusal was not admissible when the defendant was not fully informed of the consequences in accordance with (former) sub. (4). State v. Algaier,
165 Wis. 2d 515,
478 N.W.2d 292 (Ct. App. 1991).
343.305 Annotation
Substantial compliance with the requirements of (former) sub. (4) when the defendant was actually informed of all rights and penalties relating to him was sufficient. State v. Piskula,
168 Wis. 2d 135,
483 N.W.2d 250 (Ct. App. 1992). See also Village of Oregon v. Bryant,
188 Wis. 2d 680,
524 N.W.2d 635 (1994).
343.305 Annotation
The sub. (9) (a) requirement that a notice of intent to revoke be prepared and served immediately is directory and not mandatory. State v. Moline,
170 Wis. 2d 531,
489 N.W.2d 667 (Ct. App. 1992).
343.305 Annotation
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 Wis. 2d 124,
490 N.W.2d 761 (Ct. App. 1992).
343.305 Annotation
When officer knows the defendant was licensed as a commercial operator and the ensuing revocation revokes all operating privileges, the commercial operator warnings, under (former) sub. (4), must be given. State v. Geraldson,
176 Wis. 2d 487,
500 N.W.2d 415 (Ct. App. 1993).
343.305 Annotation
Overstatement of the potential penalties for refusal to submit to a chemical test is substantial compliance with (former) sub. (4) and not grounds for reversing a revocation for refusal. State v. Sutton,
177 Wis. 2d 709,
503 N.W.2d 326 (Ct. App. 1993).
343.305 Annotation
There is no error in informing a driver of all warnings under (former) 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 Wis. 2d 137,
510 N.W.2d 752 (Ct. App. 1993).
343.305 Annotation
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 Wis. 2d 262,
516 N.W.2d 774 (Ct. App. 1994).
343.305 Annotation
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 Wis. 2d 673 518 N.W.2d 325 (Ct. App. 1994).
343.305 Annotation
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 Wis. 2d 266,
522 N.W.2d 32 (Ct. App. 1994).
343.305 Annotation
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 Wis. 2d 349,
525 N.W.2d 102 (Ct. App. 1994).
343.305 Annotation
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 Wis. 2d 305,
531 N.W.2d 369 (Ct. App. 1995).
343.305 Annotation
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 Wis. 2d 269,
542 N.W.2d 196 (Ct. App. 1995).
343.305 Annotation
Discovery procedures in chapter 804 apply to refusal hearings under this section. State v. Schoepp,
204 Wis. 2d 266,
554 N.W.2d 236 (Ct. App. 1996).
343.305 Annotation
The implied consent law does not expressly require a suspect's written consent to the blood alcohol test. A consent form will be liberally construed to determine whether it misinforms the suspect of the law. State v. Spring,
204 Wis. 2d 343,
555 N.W.2d 384 (Ct. App. 1996).
343.305 Annotation
Criminal prosecution for operating a motor vehicle with a prohibited blood alcohol content subsequent to an administrative suspension of a driver's operating privileges in the same case does not constitute multiple punishment and does not constitute double jeopardy. State v. McMaster,
206 Wis. 2d 30,
556 N.W.2d 673 (1996).
343.305 Annotation
A finding in an administrative review under sub. (8) that there was no probable cause for an arrest does not preclude the consideration of the same issue in a criminal proceeding. State v. Kasian,
207 Wis. 2d 609,
558 N.W.2d 687 (Ct. App. 1996).
343.305 Annotation
Misinformation about the potential penalties for refusing to submit to a chemical test may result in the warning under sub. (4) being inadequate. Evidence of a refusal that follows an inadequate warning violates due process, but admission is subject to a harmless error analysis. State v. Schirmang,
210 Wis. 2d 325,
565 N.W.2d 225 (Ct. App. 1997).
343.305 Annotation
When an officer exceeds the duty to give warnings prior to administering the test and gives erroneous information, it is the defendant's burden to prove by a preponderance of the evidence that the erroneous information caused the defendant's refusal. State v. Ludwigson,
212 Wis. 2d 871,
569 N.W.2d 762 (Ct. App. 1997).
343.305 Annotation
Willingness to submit to a blood alcohol test, subsequent to an earlier refusal, does not cure the refusal. State v. Rydeski,
214 Wis. 2d 101,
571 N.W.2d 417 (Ct. App. 1997).
343.305 Annotation
A verbal refusal to submit to a blood alcohol test is not required to find a refusal. Conduct may serve as the basis for finding a refusal. State v. Rydeski,
214 Wis. 2d 101,
571 N.W.2d 471 (Ct. App. 1997).
343.305 Annotation
The chief of the DOT chemical test section is given authority to determine the procedures for evaluation of breath testing instruments. The consideration of modifications made to a new model of a previously tested machine and determination that the 2 models were analytically the same was sufficient testing. State v. Busch,
217 Wis. 2d 429,
576 N.W.2d 904 (1998).
343.305 Annotation
When a defendant submitted to a blood test prior to being placed under arrest, the test was not made pursuant to this section. As such, there was no right to an alternative test under sub. (5). State v. Thurk,
224 Wis. 2d 662,
592 N.W.2d 1 (Ct. App. 1999).
343.305 Annotation
There is no constitutional duty to inform suspected drunk drivers that the right to counsel does not attach to the implied consent statute. State v. Reitter,
227 Wis. 2d 213,
595 N.W.2d 646 (1999).
343.305 Annotation
The trial court erred when it ordered blood test results suppressed after concluding that a defendant who was hearing impaired needed a sign language interpreter to understand the information given under sub. (4). State v. Piddington, 2000 WI App 44,
233 Wis. 2d 257,
607 N.W.2d 303.
343.305 Annotation
When 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.
343.305 Annotation
Implied consent is discussed. 62 Atty. Gen. 174.
343.305 Annotation
The method by which a law enforcement agency may provide 2 tests for blood alcohol content under sub. (1), 1985 stats. [now sub. (2)] is discussed. The agency is not required to actually own or physically possess the testing devices. 63 Atty. Gen. 119.
343.305 Annotation
Under s. 343.305 (1) and (4), 1985 stats., hospital personnel must administer tests and report results at the request of officers, subject to penalty under 946.40. 68 Atty. Gen. 209.
343.305 Annotation
Federal law requiring confidentiality of patient records has no application to the taking of a blood sample under this section.
73 Atty. Gen. 45.
343.305 Annotation
A law enforcement officer may use physical restraint, subject to constitutional limitations, in order to draw a legally justified blood sample. Refusal by a health professional to comply with a law enforcement officer's authorized request to take a blood sample from a person whom the officer has legally restrained by force constitutes refusal to aid an officer under s. 946.40.
74 Atty. Gen. 123.
343.305 AnnotationRefusal hearings under this section are discussed.
77 Atty. Gen. 4.
343.305 Annotation
A Massachusetts implied consent law that mandates suspension of a license for refusal to take a breath-analysis test did not violate the due process clause. Mackey v. Montrym,
443 U.S. 1 (1979).
343.305 Annotation
The admission into evidence of a defendant's refusal to submit to a blood-alcohol test did not deny the right against self-incrimination. South Dakota v. Neville,
459 U.S. 553 (1983).
343.305 Annotation
Wisconsin's new administrative suspension statute. 72 MLR 120 (1988).
343.305 Annotation
The new OMVWI law: Wisconsin changes its approach to the problem of drinking and driving. Hammer, WBB April, May 1982.
343.305 Annotation
Technical problems corrected: Operating while intoxicated. Hancock and Maassen. WBB Apr. 1987.
343.305 Annotation
Wisconsin's breath testing program. Booker. WBB Oct. 1988.
343.305 Annotation
Rethinking Refusal: Wisconsin's Implied Consent Law. Lotke. Wis. Law. July 1993.
343.307
343.307
Prior convictions, suspensions or revocations to be counted as offenses. 343.307(1)
(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):
Effective date note
NOTE: Sub. (1) (intro.) is amended eff. 5-1-01 or the date stated in the notice published by the secretary of transportation in the Wisconsin Administrative Register under s. 85.515, whichever is earlier, by
1997 Wis. Act 84, as affected by
1999 Wis. Act 9, s.
3263, to read:
Effective date text
(1) The court shall count the following to determine the length of a revocation under s. 343.30 (1q) (b) and to determine the penalty under s. 346.65 (2):
343.307(1)(a)
(a) Convictions for violations under
s. 346.63 (1), or a local ordinance in conformity with that section.
343.307(1)(b)
(b) Convictions for violations of a law of a federally recognized American Indian tribe or band in this state in conformity with
s. 346.63 (1).
343.307(1)(d)
(d) Convictions under the law of another jurisdiction that prohibits refusal of chemical testing or use of a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof, or with an excess or specified range of alcohol concentration, or under the influence of any drug to a degree that renders the person incapable of safely driving, as those or substantially similar terms are used in that jurisdiction's laws.
343.307(1)(e)
(e) Operating privilege suspensions or revocations under the law of another jurisdiction arising out of a refusal to submit to chemical testing.
343.307(2)
(2) The court shall count the following to determine the length of a revocation under
s. 343.305 (10) and to determine the penalty under
s. 346.65 (2j) and to determine the prohibited alcohol concentration under
s. 340.01 (46m):
343.307(2)(b)
(b) Convictions for violations of a law of a federally recognized American Indian tribe or band in this state in conformity with
s. 346.63 (1) or
(5).
343.307(2)(d)
(d) Convictions under the law of another jurisdiction that is in substantial conformity with
49 CFR 383.51 (b) (2) (i) or (ii) or both.
343.307(2)(e)
(e) Convictions under the law of another jurisdiction that prohibits refusal of chemical testing or use of a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof, or with an excess or specified range of alcohol concentration, or under the influence of any drug to a degree that renders the person incapable of safely driving, as those or substantially similar terms are used in that jurisdiction's laws.
343.307(2)(f)
(f) Operating privilege suspensions or revocations under the law of another jurisdiction arising out of a refusal to submit to chemical testing.
343.31
343.31
Revocation or suspension of licenses after certain convictions. 343.31(1)(1) The department shall revoke a person's operating privilege upon receiving a record of conviction showing that the person has been convicted of any of the following offenses under a state law or under a local ordinance which is in conformity therewith or under a law of a federally recognized American Indian tribe or band in this state which is in conformity with state law:
343.31(1)(am)
(am) Injury by the operation of a vehicle while under the influence of an intoxicant, a controlled substance or a controlled substance analog, or any combination of an intoxicant, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving or while the person has a prohibited alcohol concentration and which is criminal under
s. 346.63 (2).
343.31(1)(ar)
(ar) Injury by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.1 and which is criminal under
s. 346.63 (6).
