SB338: Bill Text

LRB-4199/1

TNF&PJH:kmg:pg

2001 - 2002 LEGISLATURE

2001 Senate BILL 338

December 6, 2001 - Introduced by Joint Legislative Council. Referred to Committee on Judiciary, Consumer Affairs, and Campaign Finance Reform.

SB338,2,4 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.

SB338, s. 1 Section 1. 85.53 (1) (c) of the statutes is amended to read:

SB338,2,8 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).

SB338, s. 2 Section 2 . 340.01 (5u) and (19d) of the statutes are created to read:

SB338,2,11 340.01 (5u) "Bodily harm" means physical pain or injury, illness, or any impairment of physical condition.

SB338,3,4 (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).

SB338, s. 3 Section 3 . 340.01 (25d) and (73e) of the statutes are created to read:

SB338,3,6 340.01 (25d) "Intoxicant" means any of the following:

SB338,3,8 (a) Alcohol, a controlled substance, a controlled substance analog, any other drug, or a vapor-releasing substance.

SB338,3,10 (b) Any combination of alcohol, a controlled substance, a controlled substance analog, any other drug, or a vapor-releasing substance.

SB338,3,14 (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.

SB338, s. 4 Section 4. 343.10 (8) (intro.) of the statutes is amended to read:

SB338,4,6 343.10 (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:

SB338, s. 5 Section 5. 343.16 (5) (a) of the statutes, as affected by 1997 Wisconsin Act 84, is amended to read:

SB338,5,22 343.16 (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).

SB338, s. 6 Section 6. 343.30 (1g) (a) of the statutes is amended to read:

SB338,6,2 343.30 (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.

SB338, s. 7 Section 7. 343.30 (1g) (b) of the statutes is amended to read:

SB338,6,11 343.30 (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.

SB338, s. 8 Section 8. 343.30 (1g) (c) of the statutes is created to read:

SB338,6,17 343.30 (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.

SB338, s. 9 Section 9. 343.30 (1q) (c) 1. (intro.) of the statutes is amended to read:

SB338,7,9 343.30 (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:

SB338, s. 10 Section 10. 343.30 (1q) (d) of the statutes, as affected by 1997 Wisconsin Act 84, is amended to read: