AB458: Bill Text

AB458,18,20 346.63 (2) (a) 3. The person has a detectable amount of a restricted controlled substance in his or her blood.

AB458, s. 51 Section 51. 346.63 (2) (am) of the statutes is amended to read:

AB458,19,6 346.63 (2) (am) A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of par. (a) 1. or 2. or both any combination of par. (a) 1., 2., or 3. for acts arising out of the same incident or occurrence. If the person is charged with violating par. (a) 1. and 2. any combination of par. (a) 1., 2., or 3. in the complaint, the crimes shall be joined under s. 971.12. If the person is found guilty of par. (a) 1. and 2. any combination of par. (a) 1., 2., or 3. for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under ss. 343.30 (1q) and 343.305. Paragraph (a) 1. and, 2., and 3. each require proof of a fact for conviction which the other does others do not require.

AB458, s. 52 Section 52. 346.63 (2) (b) of the statutes is renumbered 346.63 (2) (b) 1. amended to read:

AB458,19,18 346.63 (2) (b) 1. In an action under this subsection, the defendant has a defense if he or she proves by a preponderance of the evidence that the injury would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant, a controlled substance, a controlled substance analog or a combination thereof, 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, did not have a prohibited alcohol concentration described under par. (a) 2., or did not have a detectable amount of a restricted controlled substance in his or her blood.

AB458, s. 53 Section 53. 346.63 (2) (b) 2. of the statutes is created to read:

AB458,19,25 346.63 (2) (b) 2. In an action under par. (a) 3. that is based on the defendant allegedly having a detectable amount of methamphetamine or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors or delta-9-tetrahydrocannabinol.

AB458, s. 54 Section 54. 346.65 (2g) (c) of the statutes is amended to read:

AB458,20,14 346.65 (2g) (c) If there was a minor passenger under 16 years of age in the motor vehicle or commercial motor vehicle at the time of the violation that gave rise to the conviction, the court may require a person ordered to perform community service work under par. (a) or (ag), or under s. 973.05 (3) (a) if that person's fine resulted from violating s. 346.63 (2), (5) (a) or (6) (a), 940.09 (1) or 940.25, or under s. 973.05 (3) (a) if that person's fine resulted from violating s. 346.63 (1) (am) and the motor vehicle that the person was driving or operating was a commercial motor vehicle, to participate in community service work that benefits children or that demonstrates the adverse effects on children of substance abuse or of operating a vehicle while under the influence of an intoxicant or other drug. The court may order the person to pay a reasonable fee, based on the person's ability to pay, to offset the cost of establishing, maintaining and monitoring the community service work ordered under this paragraph.

AB458, s. 55 Section 55. 346.65 (2m) (a) of the statutes is amended to read:

AB458,20,24 346.65 (2m) (a) In imposing a sentence under sub. (2) for a violation of s. 346.63 (1) (am) or (b) or (5) or a local ordinance in conformity therewith, the court shall review the record and consider the aggravating and mitigating factors in the matter. If the level of the person's blood alcohol level amount of alcohol in the person's blood or urine or the amount of a restricted controlled substance in the person's blood is known, the court shall consider that level amount as a factor in sentencing. The chief judge of each judicial administrative district shall adopt guidelines, under the chief judge's authority to adopt local rules under SCR 70.34, for the consideration of aggravating and mitigating factors.

AB458, s. 56 Section 56. 346.65 (6) (a) 1. of the statutes is amended to read:

AB458,21,13 346.65 (6) (a) 1. The court may order a law enforcement officer to seize the motor vehicle used in the violation or improper refusal and owned by the person whose operating privilege is revoked under s. 343.305 (10) or who committed a violation of s. 346.63 (1) (a), (am), or (b) or (2) (a) 1. or, 2., or 3., 940.09 (1) (a), (am), (b), (c), (cm), or (d), or 940.25 (1) (a), (am), (b), (c), (cm), or (d) if the person whose operating privilege is revoked under s. 343.305 (10) or who is convicted of the violation has 2 or more prior suspensions, revocations, or convictions, counting convictions under ss. 940.09 (1) and 940.25 in the person's lifetime, plus other convictions, suspensions, or revocations counted under s. 343.307 (1). The court may not order a motor vehicle seized if the court enters an order under s. 343.301 to immobilize the motor vehicle or equip the motor vehicle with an ignition interlock device or if seizure would result in undue hardship or extreme inconvenience or would endanger the health and safety of a person.

AB458, s. 57 Section 57. 346.65 (6) (c) of the statutes is amended to read:

AB458,22,2 346.65 (6) (c) The district attorney of the county where the motor vehicle was seized, or where the owner improperly refused to take the test under s. 343.305 or violated s. 346.63 (1) (a), (am), or (b) or (2) (a) 1. or, 2., or 3., 940.09 (1) (a), (am), (b), (c), (cm), or (d) or 940.25 (1) (a), (am), (b), (c), (cm), or (d), shall commence an action to forfeit the motor vehicle within 30 days after the motor vehicle is seized. The action shall name the owner of the motor vehicle and all lienholders of record as parties. The forfeiture action shall be commenced by filing a summons, complaint and affidavit of the law enforcement agency with the clerk of circuit court. Upon service of an answer, the action shall be set for hearing within 60 days after the service of the answer. If no answer is served or no issue of law or fact joined and the time for that service or joining of issues has expired, the court may render a default judgment as provided in s. 806.02.

AB458, s. 58 Section 58. 346.65 (6) (d) of the statutes is amended to read:

AB458,22,14 346.65 (6) (d) At the hearing set under par. (c), the state has the burden of proving to a reasonable certainty by the greater weight of the credible evidence that the motor vehicle seized under par. (a) 1. is a motor vehicle used in the violation or the improper refusal and owned by a person who committed a violation of s. 346.63 (1) (a), (am), or (b) or (2) (a) 1. or , 2., or 3., 940.09 (1) (a), (am), (b), (c), (cm), or (d) or 940.25 (1) (a), (am), (b), (c), (cm), or (d) and that the person had 2 or more prior convictions, suspensions or revocations, counting convictions under ss. 940.09 (1) and 940.25 in the person's lifetime, plus other convictions, suspensions or revocations counted under s. 343.307 (1). If the state fails to meet the burden of proof required under this paragraph, the motor vehicle shall be returned to the owner upon the payment of storage costs.

AB458, s. 59 Section 59. 350.01 (10v) of the statutes is created to read:

AB458,22,16 350.01 (10v) "Restricted controlled substance" means any of the following:

AB458,22,18 (a) A controlled substance included in schedule I under ch. 961 other than a tetrahydrocannabinol.

AB458,22,20 (b) A controlled substance analog, as defined in s. 961.01 (4m), of a controlled substance described in par. (a).

AB458,22,21 (c) Cocaine or any of its metabolites.

AB458,22,22 (d) Methamphetamine.

AB458,22,23 (e) Delta-9-tetrahydrocannabinol.

AB458, s. 60 Section 60. 350.101 (1) (bm) of the statutes is created to read:

AB458,23,3 350.101 (1) (bm) Operating with a restricted controlled substance. No person may engage in the operation of a snowmobile with a detectable amount of a restricted controlled substance in his or her blood.

AB458, s. 61 Section 61. 350.101 (1) (d) of the statutes is amended to read:

AB458,23,14 350.101 (1) (d) Related charges. A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of par. (a) or (b) or both any combination of par. (a), (b), or (bm) for acts arising out of the same incident or occurrence. If the person is charged with violating both pars. (a) and (b) any combination of par. (a), (b), or (bm), the offenses shall be joined. If the person is found guilty of both pars. (a) and (b) any combination of par. (a), (b), or (bm) for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under s. 350.11 (3) (a) 2. and 3. Paragraphs (a) and, (b), and (bm) each require proof of a fact for conviction which the other does others do not require.

AB458, s. 62 Section 62. 350.101 (1) (e) of the statutes is created to read:

AB458,23,21 350.101 (1) (e) Defenses. In an action under par. (bm) that is based on the defendant allegedly having a detectable amount of methamphetamine or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors or delta-9-tetrahydrocannabinol.

AB458, s. 63 Section 63. 350.101 (2) (bm) of the statutes is created to read:

AB458,24,2 350.101 (2) (bm) Causing injury while operating a snowmobile with a detectable amount of a restricted controlled substance. No person who has a detectable amount of a restricted controlled substance in his or her blood may cause injury to another person by the operation of a snowmobile.

AB458, s. 64 Section 64. 350.101 (2) (c) of the statutes is amended to read:

AB458,24,13 350.101 (2) (c) Related charges. A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of par. (a) or (b) or both any combination of par. (a), (b), or (bm) for acts arising out of the same incident or occurrence. If the person is charged with violating both pars. (a) and (b) any combination of par. (a), (b), or (bm) in the complaint, the crimes shall be joined under s. 971.12. If the person is found guilty of both pars. (a) and (b) any combination of par. (a), (b), or (bm) for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under s. 350.11 (3) (a) 2. and 3. Paragraphs (a) and, (b), and (bm) each require proof of a fact for conviction which the other does others do not require.

AB458, s. 65 Section 65. 350.101 (2) (d) of the statutes is renumbered 350.101 (2) (d) 1. and amended to read:

AB458,24,21 350.101 (2) (d) 1. In an action under this subsection, the defendant has a defense if he or she proves by a preponderance of the evidence that the injury would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant or did not have an alcohol concentration of 0.1 or more or a detectable amount of a restricted controlled substance in his or her blood.

AB458, s. 66 Section 66. 350.101 (2) (d) 2. of the statutes is created to read:

AB458,25,3 350.101 (2) (d) 2. In an action under par. (bm) that is based on the defendant allegedly having a detectable amount of methamphetamine or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors or delta-9-tetrahydrocannabinol.

AB458, s. 67 Section 67. 350.104 (4) of the statutes is amended to read:

AB458,25,14 350.104 (4) Admissibility; effect of test results; other evidence. The results of a chemical test required or administered under sub. (1), (2) or (3) are admissible in any civil or criminal action or proceeding arising out of the acts committed by a person alleged to have violated the intoxicated snowmobiling law on the issue of whether the person was under the influence of an intoxicant or the issue of whether the person had alcohol concentrations at or above specified levels or a detectable amount of a restricted controlled substance in his or her blood. Results of these chemical tests shall be given the effect required under s. 885.235. This section does not limit the right of a law enforcement officer to obtain evidence by any other lawful means.

AB458, s. 68 Section 68. 350.11 (3) (a) 1. of the statutes is amended to read:

AB458,25,18 350.11 (3) (a) 1. Except as provided under subds. 2. and 3., a person who violates s. 350.101 (1) (a) or, (b), or (bm) or s. 350.104 (5) shall forfeit not less than $400 nor more than $550.

AB458, s. 69 Section 69. 350.11 (3) (a) 2. of the statutes is amended to read:

AB458,25,24 350.11 (3) (a) 2. Except as provided under subd. 3., a person who violates s. 350.101 (1) (a) or, (b), or (bm) or 350.104 (5) and who, within 5 years prior to the arrest for the current violation, was convicted previously under the intoxicated snowmobiling law or the refusal law shall be fined not less than $300 nor more than $1,000 and shall be imprisoned not less than 5 days nor more than 6 months.

AB458, s. 70 Section 70. 350.11 (3) (a) 3. of the statutes is amended to read:

AB458,26,5 350.11 (3) (a) 3. A person who violates s. 350.101 (1) (a) or, (b), or (bm) or 350.104 (5) and who, within 5 years prior to the arrest for the current violation, was convicted 2 or more times previously under the intoxicated snowmobiling law or refusal law shall be fined not less than $600 nor more than $2,000 and shall be imprisoned not less than 30 days nor more than one year in the county jail.

AB458, s. 71 Section 71. 351.02 (1) (a) 10. of the statutes is amended to read:

AB458,26,23 351.02 (1) (a) 10. Any offense committed by the person under the law of another jurisdiction prohibiting conduct described in sections 6-207, 6-302, 10-102, 10-103, 10-104, 11-901, 11-902, 11-907 or 11-908 of the uniform vehicle code and model traffic ordinance (1987), or prohibiting homicide or manslaughter resulting from the operation of a motor vehicle, use of a motor vehicle in the commission of a felony, reckless or careless driving or driving a motor vehicle with willful or wanton disregard for the safety of persons or property, driving or operating a motor vehicle while under the influence of alcohol, a controlled substance, a controlled substance analog or any other drug or a combination thereof as prohibited, driving or operating a motor vehicle while having a detectable amount of a restricted controlled substance in the person's blood, refusal to submit to chemical testing, perjury or the making false statements or affidavits to a governmental agency in connection with the ownership or operation of a motor vehicle, failing to stop and identify oneself as the driver or operator in the event of a motor vehicle accident with a person or an attended motor vehicle or fleeing from or attempting to elude a police, law enforcement or other peace officer, as those or substantially similar terms are used in that jurisdiction's laws.

AB458, s. 72 Section 72. 885.235 (1) (d) of the statutes is created to read:

AB458,26,25 885.235 (1) (d) "Restricted controlled substance" means any of the following:

AB458,27,2 1. A controlled substance included in schedule I under ch. 961 other than a tetrahydrocannabinol.

AB458,27,4 2. A controlled substance analog, as defined in s. 961.01 (4m), of a controlled substance described in subd. 1.

AB458,27,5 3. Cocaine or any of its metabolites.

AB458,27,6 4. Methamphetamine.

AB458,27,7 5. Delta-9-tetrahydrocannabinol.

AB458, s. 73 Section 73. 885.235 (1k) of the statutes is created to read:

AB458,27,19 885.235 (1k) In any action or proceeding in which it is material to prove that a person had a detectable amount of a restricted controlled substance in his or her blood while operating or driving a motor vehicle or, if the vehicle is a commercial motor vehicle, on duty time, while operating a motorboat, except a sailboat operating under sail alone, while operating a snowmobile, while operating an all-terrain vehicle, or while handling a firearm, if a chemical analysis of a sample of the person's blood shows that the person had a detectable amount of a restricted controlled substance in his or her blood, the court shall treat the analysis as prima facie evidence on the issue of the person having a detectable amount of a restricted controlled substance in his or her blood without requiring any expert testimony as to its effect.

AB458, s. 74 Section 74. 885.235 (4) of the statutes is amended to read:

AB458,28,4 885.235 (4) The provisions of this section relating to the admissibility of chemical tests for alcohol concentration or intoxication or for determining whether a person had a detectable amount of a restricted controlled substance in his or her blood shall not be construed as limiting the introduction of any other competent evidence bearing on the question of whether or not a person was under the influence of an intoxicant, had a detectable amount of a restricted controlled substance in his or her blood, had a specified alcohol concentration, or had an alcohol concentration in the range specified in s. 23.33 (4c) (a) 3., 30.681 (1) (bn), 346.63 (2m) or 350.101 (1) (c).

AB458, s. 75 Section 75. 939.22 (33) of the statutes is created to read:

AB458,28,6 939.22 (33) "Restricted controlled substance" means any of the following:

AB458,28,8 (a) A controlled substance included in schedule I under ch. 961 other than a tetrahydrocannabinol.

AB458,28,10 (b) A controlled substance analog, as defined in s. 961.01 (4m), of a controlled substance described in par. (a).

AB458,28,11 (c) Cocaine or any of its metabolites.

AB458,28,12 (d) Methamphetamine.

AB458,28,13 (e) Delta-9-tetrahydrocannabinol.

AB458, s. 76 Section 76. 939.75 (1) of the statutes, as affected by 2001 Wisconsin Act 109, is amended to read:

AB458,28,20 939.75 (1) In this section and ss. 939.24 (1), 939.25 (1), 940.01 (1) (b), 940.02 (1m), 940.05 (2g) and (2h), 940.06 (2), 940.08 (2), 940.09 (1) (c) to (e) and (1g) (c), (cm), and (d), 940.10 (2), 940.195, 940.23 (1) (b) and (2) (b), 940.24 (2) and 940.25 (1) (c) to (e), "unborn child" means any individual of the human species from fertilization until birth that is gestating inside a woman.

AB458, s. 77 Section 77. 939.75 (2) (b) of the statutes is amended to read:

AB458,28,25 939.75 (2) (b) Sections 940.01 (1) (b), 940.02 (1m), 940.05 (2g) and (2h), 940.06 (2), 940.08 (2), 940.09 (1) (c) to (e) and (1g) (c), (cm), and (d), 940.10 (2), 940.195, 940.23 (1) (b) and (2) (b), 940.24 (2) and 940.25 (1) (c) to (e) do not apply to any of the following:

AB458, s. 78 Section 78. 939.75 (3) (intro.) of the statutes is amended to read:

AB458,29,7 939.75 (3) (intro.) When the existence of an exception under sub. (2) has been placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that the facts constituting the exception do not exist in order to sustain a finding of guilt under s. 940.01 (1) (b), 940.02 (1m), 940.05 (2g), 940.06 (2), 940.08 (2), 940.09 (1) (c) to (e) or (1g) (c), (cm), or (d), 940.10 (2), 940.195, 940.23 (1) (b) or (2) (b), 940.24 (2) or 940.25 (1) (c) to (e).

AB458, s. 79 Section 79. 940.09 (1) (am) of the statutes is created to read:

AB458,29,11 940.09 (1) (am) Causes the death of another by the operation or handling of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.

AB458, s. 80 Section 80. 940.09 (1) (cm) of the statutes is created to read:

AB458,29,15 940.09 (1) (cm) Causes the death of an unborn child by the operation or handling of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.

AB458, s. 81 Section 81. 940.09 (1d) (a) 1. of the statutes is amended to read:

AB458,29,23 940.09 (1d) (a) 1. Except as provided in subd. 2., if the person who committed an offense under sub. (1) (a), (am), (b), (c), (cm), or (d) has 2 or more prior convictions, suspensions, or revocations, counting convictions under sub. (1) and s. 940.25 in the person's lifetime, plus other convictions, suspensions, or revocations counted under s. 343.307 (1), the procedure under s. 343.301 shall be followed if the court enters an order regarding operating privilege restriction or enters an order regarding immobilization.

AB458, s. 82 Section 82. 940.09 (1d) (a) 2. of the statutes is amended to read:

AB458,30,6 940.09 (1d) (a) 2. Notwithstanding par. (b), if the person who committed an offense under sub. (1) (a), (am), (b), (c), (cm), or (d) has 2 or more convictions, suspensions, or revocations counted under s. 343.307 (1) within any 5-year period, the procedure under s. 343.301 shall be followed if the court enters an order regarding operating privilege restriction and the installation of an ignition interlock device or enters an order regarding immobilization.

AB458, s. 83 Section 83. 940.09 (1d) (b) of the statutes is amended to read:

AB458,30,13 940.09 (1d) (b) If the person who committed an offense under sub. (1) (a), (am), (b), (c), (cm), or (d) has 2 or more prior convictions, suspensions, or revocations, counting convictions under sub. (1) and s. 940.25 in the person's lifetime, plus other convictions, suspensions, or revocations counted under s. 343.307 (1), the procedure under s. 346.65 (6) shall be followed if the court orders the seizure and forfeiture of the motor vehicle owned by the person and used in the violation.

AB458, s. 84 Section 84. 940.09 (1g) (am) of the statutes is created to read:

AB458,30,17 940.09 (1g) (am) Causes the death of another by the operation or handling of a firearm or airgun while the person has a detectable amount of a restricted controlled substance in his or her blood.

AB458, s. 85 Section 85. 940.09 (1g) (cm) of the statutes is created to read:

AB458,30,21 940.09 (1g) (cm) Causes the death of an unborn child by the operation or handling of a firearm or airgun while the person has a detectable amount of a restricted controlled substance in his or her blood.

AB458, s. 86 Section 86. 940.09 (1m) of the statutes is renumbered 940.09 (1m) (a) and amended to read:

AB458,31,4 940.09 (1m) (a) A person may be charged with and a prosecutor may proceed upon an information based upon a violation of any combination of sub. (1) (a), (am), or (b) or both,; any combination of sub. (1) (a), (am), or (bm) or both,; any combination of sub. (1) (c), (cm), or (d) or both,; any combination of sub. (1) (c), (cm), or (e) or both,; any combination of sub. (1g) (a), (am), or (b) or both or; any combination of sub. (1g) (c), (cm), or (d) or both for acts arising out of the same incident or occurrence.

AB458,31,18 (b) If the a person is charged with violating both sub. (1) (a) and (b), both sub. (1) (a) and (bm), both sub. (1) (c) and (d), both sub. (1) (c) and (e), both sub. (1g) (a) and (b) or both sub. (1g) (c) and (d) in the an information with any of the combinations of crimes referred to in par. (a), the crimes shall be joined under s. 971.12. If the person is found guilty of both sub. (1) (a) and (b), both sub. (1) (a) and (bm), both sub. (1) (c) and (d), both sub. (1) (c) and (e), both sub. (1g) (a) and (b) or both sub. (1g) (c) and (d) more than one of the crimes so charged for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under s. 23.33 (13) (b) 2. and 3., under s. 30.80 (6) (a) 2. and 3., under s. 343.307 (1) or under s. 350.11 (3) (a) 2. and 3. Subsection (1) (a), (am), (b), (bm), (c), (cm), (d), and (e), and sub. (1g) (a), (b), (c) and (d), each require proof of a fact for conviction which the other does others do not require, and sub. (1g) (a), (am), (b), (c), (cm), and (d) each require proof of a fact for conviction which the others do not require.