AB670: Bill Text

LRB-3047/2

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2001 - 2002 LEGISLATURE

2001 Assembly BILL 670

December 3, 2001 - Introduced by Joint Legislative Council. Referred to Committee on Highway Safety.

AB670,2,4 An Act to repeal 346.62 (1) (a) and (b), 885.235 (1) (bd) and 967.055 (1m); to renumber and amend 343.303; to amend 85.53 (1) (c), 343.10 (8) (intro.), 343.16 (5) (a), 343.30 (1g) (a), 343.30 (1g) (b), 343.30 (1q) (c) 1. (intro.), 343.30 (1q) (d), 343.30 (1q) (h), 343.305 (2), (3) (am) and (b), (4) (form) and (5) (b), 343.305 (6) (a), 343.305 (9) (a) (intro.) and 4., 343.305 (9) (a) 5. a. and c., 343.305 (9) (am) (intro.) and 4., 343.305 (9) (am) 5. a. and c., 343.305 (9) (c), 343.305 (10) (c) 1. (intro.), 343.305 (10) (d), 343.307 (1) (d) and (2) (e), 343.31 (1) (am) and (ar), 343.31 (1) (b), 343.31 (2) and (3) (b), 343.315 (2) (a) 1. and 6., 343.44 (1) (a) and (b), 344.576 (2) (b) and (c), 345.24 (1), 346.17 (3) (b), 346.17 (3) (c), 346.61, 346.63 (title), 346.63 (1) (a) and (b), 346.63 (2) (a) (intro.) and 1. and (b), 346.63 (6) (a) and (c), 346.637 (1) and (2), 346.65 (2) (e), 346.65 (2g) (b) and (c) and (2i), 346.65 (2q) and (2u) (a), 346.65 (3m) and (7), 346.66, 351.02 (1) (a) 10., 885.235 (1g) (a), 895.53 (2), 949.08 (2) (e) and (em), 967.055 (title) and (1) (a) and 967.055 (2) (a); to repeal and recreate 343.305 (5) (d), 885.235 (1) (b) and (c) and 939.22 (42); and to create 340.01 (5u) and (19d), 340.01 (25d) and (73e), 343.30 (1g) (c), 343.305 (5) (e), 346.65 (2) (g) 4., 346.65 (8), 800.08 (5) and 939.22 (19m) of the statutes; relating to: intoxicated operation of a motor vehicle and providing a penalty.

Analysis by the Legislative Reference Bureau

This bill is explained in the Notes provided by the joint legislative council in the bill.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

Prefatory note: This bill was prepared for the special committee on recodification of operating while intoxicated and safety laws pertaining to motor vehicle, all-terrain vehicle, boat, or snowmobile operation. The special committee was directed to study current statutes relating to operating a vehicle while under the influence of an intoxicant or drug and to reorganize, simplify, modernize, and clarify these statutes and make minor substantive changes necessary to effect these goals. In addition, the special committee was directed to study, with respect to an all-terrain vehicle, a boat, or a snowmobile, whether enforcement mechanisms need to be increased or created to ensure compliance with the law.

This bill creates a definition of the terms "intoxicant" and "under the influence of an intoxicant" for use in the motor vehicle code. Most of the Sections of this bill are concerned with the use of these terms and a description of this issue can be found in the note following Section 3 of the bill. Other changes to the statutes made in the bill are identified in notes to the provisions affected.

AB670, s. 1 Section 1. 85.53 (1) (c) of the statutes is amended to read:

AB670,2,8 85.53 (1) (c) "Intoxicant" means any alcohol beverage, controlled substance, controlled substance analog or other drug or any combination thereof has the meaning given in s. 340.01 (25d).

AB670, s. 2 Section 2 . 340.01 (5u) and (19d) of the statutes are created to read:

AB670,2,11 340.01 (5u) "Bodily harm" means physical pain or injury, illness, or any impairment of physical condition.

AB670,3,4 (19d) "Great bodily harm" means bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.

Note: This Section creates definitions for "bodily harm" and "great bodily harm," using definitions currently set forth in s. 939.22 (4) and (14).

AB670, s. 3 Section 3 . 340.01 (25d) and (73e) of the statutes are created to read:

AB670,3,6 340.01 (25d) "Intoxicant" means any of the following:

AB670,3,8 (a) Alcohol, a controlled substance, a controlled substance analog, any other drug, or a vapor-releasing substance.

AB670,3,10 (b) Any combination of alcohol, a controlled substance, a controlled substance analog, any other drug, or a vapor-releasing substance.

AB670,3,14 (73e) "Under the influence of an intoxicant" means a condition in which a person's ability to operate a motor vehicle, because of the consumption or use of an intoxicant, is impaired to the extent that the person is less able to exercise the clear judgment and steady hand necessary to handle and control a motor vehicle.

Note: Current law treats the issue of operating a motor vehicle while intoxicated using various terms, often inconsistently. The terms used are "intoxicant", "alcohol", "controlled substance", "controlled substance analog", and "other drug". In the following sections of the statutes, the terms "alcohol", "a controlled substance", and "controlled substance analog" are used: ss. 343.10, 343.16, 343.30, 343.305, 343.307, 343.44, 346.637, and 895.53, stats. Other sections of the statutes make use of these terms plus the term "other drug": ss. 85.53, 343.303, 343.305, 343.31, 343.315, 343.63, 344.576, 351.02, and 346.65, stats. In addition, the term "intoxicant" is intermittently used.

This Section creates a definition of the term "intoxicant" to mean any of the following:

1. Alcohol, a controlled substance, a controlled substance analog, any other drug, or a vapor-releasing substance.

2. Any combination of alcohol, a controlled substance, a controlled substance analog, any other drug, or a vapor-releasing substance.

The use of the definition of the term "intoxicant" in the statutes will indicate consistently that a person may be considered intoxicated due to the individual impacts or the combined impacts of alcohol, a controlled substance, a controlled substance analog, any other drug, or a vapor-releasing substance.

Another issue presented by this bill is the meaning of the phrase "operating a motor vehicle while under the influence". For example, s. 343.305 (9) (a) 5. a., states in part:

"Whether the officer had probable cause to believe the person was driving or operating a motor vehicle while under the influence of alcohol, a controlled substance, or a controlled substance analog or any combination of alcohol, a controlled substance, and a controlled substance analog, under the influence of any other drug to a degree which renders the person incapable of safely driving, or under the combined influence of alcohol and any other drug to a degree which renders the person incapable of safely driving ...."

It appears from the above-cited section of the statutes that the phrase "to a degree which renders the person incapable of safely driving" applies only to a person acting under the influence of "any other drug" or "alcohol and any other drug".

Wisconsin criminal jury instructions state that the phrase "under the influence of an intoxicant" means that a driver's ability to operate a vehicle is impaired because of the consumption of an alcoholic beverage. "Not every person who has consumed alcoholic beverages is `under the influence' as that term is used here. What must be established is that the person has consumed a sufficient amount of alcohol to cause him to be less able to exercise the clear judgment and steady hand necessary to handle and control a motor vehicle. It is not required that impaired ability to operate be demonstrated by particular acts of unsafe driving. What is required is that the person's ability to safely control his vehicle be impaired". [See WIS JI-CRIMINAL s. 2663.]

With respect to operating a motor vehicle while under the influence of a drug, the Wisconsin criminal jury instructions state that one element of this offense requires that the defendant drove or operated a motor vehicle while under the influence of a drug to a degree which rendered the defendant incapable of safely driving. [See WI JI-CRIMINAL s. 2666.]

This bill creates a definition of the term "under the influence of an intoxicant" by codifying the language of WI JI-CRIMINAL s. 2663. Rather than using 2 standards, as under current law, the bill applies the definition to the operation of a motor vehicle when the consumption of any intoxicant is involved. Again, the term "intoxicant" is defined to mean alcohol, a controlled substance, a controlled substance analog, any other drug, a vapor-releasing substance, or any combination of these items.

AB670, s. 4 Section 4. 343.10 (8) (intro.) of the statutes is amended to read:

AB670,4,6 343.10 (8) Violation of restrictions. (intro.) Any person who violates a restriction on an occupational license as to hours of the day, area, routes or purpose of travel, vehicles allowed to be operated, use of an ignition interlock device, sobriety, or use of alcohol, controlled substances or controlled substance analogs an intoxicant shall be:

AB670, s. 5 Section 5. 343.16 (5) (a) of the statutes, as affected by 1997 Wisconsin Act 84, is amended to read:

AB670,5,19 343.16 (5) (a) The secretary may require any applicant for a license or any licensed operator to submit to a special examination by such persons or agencies as the secretary may direct to determine incompetency, physical or mental disability, disease, or any other condition which might prevent such applicant or licensed person from exercising reasonable and ordinary control over a motor vehicle. When the department requires the applicant to submit to an examination, the applicant shall pay the cost thereof. If the department receives an application for a renewal or duplicate license after voluntary surrender under s. 343.265 or receives a report from a physician or optometrist under s. 146.82 (3), or if the department has a report of 2 or more arrests within a one-year period for any combination of violations of s. 346.63 (1) or (5) or a local ordinance in conformity therewith or a law of a federally recognized American Indian tribe or band in this state in conformity with s. 346.63 (1) or (5), or s. 346.63 (1m), 1985 stats., or s. 346.63 (2) or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, the department shall determine, by interview or otherwise, whether the operator should submit to an examination under this section. The examination may consist of an assessment. If the examination indicates that education or treatment for a disability, disease, or condition concerning the use of alcohol, a controlled substance or a controlled substance analog an intoxicant is appropriate, the department may order a driver safety plan in accordance with s. 343.30 (1q). If there is noncompliance with assessment or the driver safety plan, the department shall revoke the person's operating privilege in the manner specified in s. 343.30 (1q) (d).

AB670, s. 6 Section 6. 343.30 (1g) (a) of the statutes is amended to read:

AB670,5,24 343.30 (1g) (a) Except as provided in par. pars. (b) and (c), a court may suspend a person's operating privilege for any period not exceeding 6 months upon the person's conviction for violating s. 343.44 (1) (a), (b), or (d) or a local ordinance in conformity therewith.

AB670, s. 7 Section 7. 343.30 (1g) (b) of the statutes is amended to read:

AB670,6,8 343.30 (1g) (b) A Except as provided in par. (c), a court shall revoke a person's operating privilege upon the person's conviction for violating s. 343.44 (1) (a), (b), or (d) or a local ordinance in conformity therewith if the person has been convicted of 3 or more prior violations of s. 343.44 (1) (a), (b), or (d), or similar violations under s. 343.44 (1), 1997 stats., or a local ordinance in conformity therewith, within the 5-year period preceding the violation. The revocation shall be for a period of 6 months, unless the court orders a period of revocation of less than 6 months and places its reasons for ordering the lesser period of revocation on the record.

AB670, s. 8 Section 8. 343.30 (1g) (c) of the statutes is created to read:

AB670,6,14 343.30 (1g) (c) A court shall suspend a person's operating privilege upon the person's conviction under s. 343.44 for violating s. 343.10 (5) (a) 3. or under s. 347.413. The revocation shall be for a period of not less than 6 months nor more than 9 months. If a person is convicted under s. 347.413, the person is eligible for an occupational license at any time.

Note: This Section creates a license suspension provision applicable to persons who are convicted of tampering with an ignition interlock device (IID), either under the general tampering provision in s. 347.413, stats., or the tampering language in s. 343.10, stats. As with the current IID tampering laws, this suspension applies to whoever commits the tampering violation (that is, the operator subject to the IID restriction or anyone else tampering with the device). Except where an occupational license is involved, the suspension period and the provision making the operator eligible for an occupational license at any time is the same as that currently applicable to a first offense violator of the statutes prohibiting the operation of a motor vehicle while under the influence of an intoxicant or other drug (OWI). If the violator is an OWI violator who has an occupational license, the provisions of the occupational license statute determine future eligibility for such a license.

AB670, s. 9 Section 9. 343.30 (1q) (c) 1. (intro.) of the statutes is amended to read:

AB670,7,5 343.30 (1q) (c) 1. (intro.) Except as provided in subd. 1. a. or b., 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 an intoxicant and development of a driver safety plan for the person. The court shall notify the department of transportation of the assessment order. The court shall notify the person that noncompliance with assessment or the driver safety plan will result in revocation of the person's operating privilege until the person is in compliance. The assessment order shall:

AB670, s. 10 Section 10. 343.30 (1q) (d) of the statutes, as affected by 1997 Wisconsin Act 84, is amended to read:

AB670,8,22 343.30 (1q) (d) 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 an intoxicant, or 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 with 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 any noncompliance, other than for nonpayment of the assessment fee or driver safety plan fee, it shall revoke 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. If the department is notified that a person has not paid the assessment fee, or that a person with the ability to pay has not paid the driver safety plan fee, the department shall suspend the person's operating privilege for a period of 2 years or until it receives notice that the person has paid the fee, whichever occurs first. The department shall notify the person of the suspension or revocation, the reason for the suspension or revocation, and the person's right to a review. A person may request a review of a revocation 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.

AB670, s. 11 Section 11. 343.30 (1q) (h) of the statutes is amended to read:

AB670,9,17 343.30 (1q) (h) The court or department shall provide that the period of suspension or revocation imposed under this subsection shall be reduced by any period of suspension or revocation previously served under s. 343.305 if the suspension or revocation under s. 343.305 and the conviction for violation of s. 346.63 (1) or (2m) or a local ordinance in conformity therewith arise out of the same incident or occurrence. The court or department shall order that the period of suspension or revocation imposed under this subsection run concurrently with any period of time remaining on a suspension or revocation imposed under s. 343.305 arising out of the same incident or occurrence. The court or department shall order that any period of time that must expire before a person is eligible for an occupational license under this subsection be reduced by any similar period previously expired under s. 343.305 if the suspension or revocation under s. 343.305 and the conviction for violation of s. 346.63 (1) or a local ordinance in conformity therewith arise out of the same incident or occurrence. The court or department shall order that any period of time that must expire before a person is eligible for an occupational license under this subsection run concurrently with any similar period of time remaining under s. 343.305 arising out of the same incident or occurrence. The court may modify an occupational license authorized under s. 343.305 (8) (d) in accordance with this subsection.

Note: Section 343.30 (1q) (b), stats., provides that a person who is convicted of driving or operating a motor vehicle while under the influence of an intoxicant or other drug or while maintaining a prohibited alcohol concentration will be subject to revocation of the person's operating privilege and a specified period of time within which the person is not eligible to obtain an occupational license. Similarly, s. 343.305 (10) (b), stats., provides that a person who improperly refuses to take a test to determine the presence of alcohol or other drugs will be subject to a revocation of the person's operating privilege and a specified period of time within which the person is not eligible to obtain an occupational license. This Section provides that, for a conviction and a refusal that arise out of the same incident or occurrence, the periods of time within which a person will not be eligible for an occupational license will run concurrently or, if an eligibility period has begun to run for a refusal, the latter period will operate as an offset to the period of ineligibility for an occupational license under s. 343.30, stats.

AB670, s. 12 Section 12. 343.303 of the statutes is renumbered 343.303 (1) (intro.) and amended to read:

AB670,10,6 343.303 (1) (intro.) If a A law enforcement officer has probable cause to believe , prior to an arrest, may request a person to provide a sample of his or her breath for a preliminary breath screening test using a device approved by the department for this purpose if any of the following conditions exists:

AB670,10,10 (a) The law enforcement officer has reasonable suspicion that the person is violating or has violated s. 346.63 (1) or (2m) or a local ordinance in conformity therewith, or s. 346.63 (2) or (6) or, 940.09 (1), or 940.25 or s. 940.09 where the offense involved the use of a vehicle, or if the.

AB670,10,14 (b) The law enforcement officer detects any presence of alcohol, a controlled substance, controlled substance analog or other drug, or a combination thereof, an intoxicant on a person driving or operating or on duty time with respect to a commercial motor vehicle or.

AB670,10,19 (c) The law enforcement officer has reason to believe that the person is violating or has violated s. 346.63 (7) or a local ordinance in conformity therewith, the officer, prior to an arrest, may request the person to provide a sample of his or her breath for a preliminary breath screening test using a device approved by the department for this purpose.

AB670,10,25 (2) The result of this the preliminary breath screening test under sub. (1) may be used by the law enforcement officer for the purpose of deciding whether or not the person shall be arrested for a violation of s. 346.63 (1), (2m), (5) , or (7) or a local ordinance in conformity therewith, or s. 346.63 (2) or (6), 940.09 (1), or 940.25 and whether or not to require or request chemical tests as authorized under s. 343.305 (3).

AB670,11,6 (3) The result of the preliminary breath screening test under sub. (1) shall not be admissible in any action or proceeding except to show probable cause for an arrest, if the arrest is challenged, to show the presence of an intoxicant in a person's breath, blood, or urine, or to prove that a chemical test was properly required or requested of a person under s. 343.305 (3). Following the screening test, additional tests may be required or requested of the driver under s. 343.305 (3).

AB670,11,8 (4) The general penalty provision under s. 939.61 (1) does not apply to a refusal to take a preliminary breath screening test under this section.

Note: This Section reorganizes s. 343.303 and provides that a law enforcement officer may require a preliminary breath screening test if there is a reasonable suspicion, rather than probable cause to believe, that a violation has occurred. This change is based on the decision of the Wisconsin Supreme Court in County of Jefferson v. Renz, 231 Wis. 2d 293 (1999).

In addition, current law provides that a preliminary breath screening test is not admissible in any action or proceeding except to show probable cause for an arrest, if the arrest is challenged, or to prove that a chemical test was properly required or requested. This Section provides that the result of the preliminary breath screening test also may be used as evidence of the presence of an intoxicant in a person's breath, blood, or urine; that is, the result of the test is admissible for the purpose of providing evidence of the existence of an intoxicant but not for the purpose of providing evidence of the amount of an intoxicant.

AB670, s. 13 Section 13. 343.305 (2), (3) (am) and (b), (4) (form) and (5) (b) of the statutes are amended to read:

AB670,12,5 343.305 (2) Implied consent. Any person who is on duty time with respect to a commercial motor vehicle or drives or operates a motor vehicle upon the public highways of this state, or in those areas enumerated in s. 346.61, is deemed to have given consent to one or more tests of his or her breath, blood, or urine, for the purpose of determining the presence or quantity of an intoxicant in his or her blood or breath, of alcohol, controlled substances, controlled substance analogs or other drugs, or any combination of alcohol, controlled substances, controlled substance analogs and other drugs breath, blood, or urine, when requested to do so by a law enforcement officer under sub. (3) (a) or (am) or when required to do so under sub. (3) (b). Any such tests shall be administered upon the request of a law enforcement officer. The law enforcement agency by which the officer is employed shall be prepared to administer, either at its agency or any other agency or facility, 2 of the 3 tests under sub. (3) (a) or (am), and may designate which of the tests shall be administered first.

AB670,12,15 (3) (am) Prior to arrest, a law enforcement officer may request the person to provide one or more samples of his or her breath, blood, or urine for the purpose specified under sub. (2) whenever a law enforcement officer detects any presence of alcohol, a controlled substance, a controlled substance analog or other drug, or a combination thereof, an intoxicant on a person driving or operating or on duty time with respect to a commercial motor vehicle or has reason to believe the person is violating or has violated s. 346.63 (7). Compliance with a request for one type of sample does not bar a subsequent request for a different type of sample. For the purposes of this paragraph, "law enforcement officer" includes inspectors in the performance of duties under s. 110.07 (3).

AB670,12,25 (b) A person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent under this subsection, and if a law enforcement officer has probable cause to believe that the person has violated s. 346.63 (1), (2m), or (5) or a local ordinance in conformity therewith, or s. 346.63 (2) or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, or detects any presence of alcohol, controlled substance, controlled substance analog or other drug, or a combination thereof, an intoxicant on a person driving or operating or on duty time with respect to a commercial motor vehicle or has reason to believe the person has violated s. 346.63 (7), one or more samples tests specified in par. (a) or (am) may be administered to the person.

AB670,13,1 (4) (form)

AB670,13,5 "You have either been arrested for an offense that involves driving or operating a motor vehicle while under the influence of alcohol or drugs, or both an intoxicant, or you are suspected of driving or being on duty time with respect to a commercial motor vehicle after consuming an intoxicating beverage.

AB670,13,13 This law enforcement agency now wants to test one or more samples of your breath, blood, or urine to determine the concentration of alcohol or drugs an intoxicant in your system. If any test shows more alcohol in your system than the law permits while driving, your operating privilege will be suspended. If you refuse to take any test that this agency requests, your operating privilege will be revoked and you will be subject to other penalties. The test results or the fact that you refused testing can be used against you in court. The law does not provide you with a right to contact an attorney before submitting to a chemical test.

AB670,13,17 If you take all of the requested tests, you may choose to take further tests. You may take the alternative test that this law enforcement agency provides free of charge. You also may have a test conducted by a qualified person of your choice at your expense. You, however, will have to make your own arrangements for that test.

AB670,13,20 If you have a commercial driver license or were operating a commercial motor vehicle, other consequences may result from positive test results or from refusing testing, such as being placed out of service or disqualified."

AB670,14,3 (5) (b) Blood may be withdrawn from the person arrested for violation of s. 346.63 (1), (2), (2m), (5), or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, or a local ordinance in conformity with s. 346.63 (1), (2m), or (5), or as provided in sub. (3) (am) or (b) to determine the presence or quantity of alcohol, a controlled substance, a controlled substance analog or any other drug, or any combination of alcohol, controlled substance, controlled substance analog and any other drug an intoxicant in the blood only by a physician, registered nurse, medical technologist, physician assistant, or person acting under the direction of a physician.

Note: Section 343.305 (4), stats., requires that a law enforcement officer provide a person specified notifications at the time that a chemical test specimen is requested. This Section adds to the notice a provision that when a chemical test specimen is requested, the person to be tested does not have the right to contact an attorney prior to testing.

AB670, s. 14 Section 14. 343.305 (5) (d) of the statutes is repealed and recreated to read:

AB670,14,8 343.305 (5) (d) The results of a test administered in accordance with this section are admissible on the issue of whether a person was under the influence of an intoxicant or any issue relating to the person's alcohol concentration in a civil or criminal proceeding in which the person is alleged to have done any of the following:

AB670,14,10 1. Driven or operated a motor vehicle while under the influence of an intoxicant.