Wisconsin Legislature: 343.307(1)

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)(c) (c) Convictions for violations under s. 346.63 (2) or 940.25, or s. 940.09 where the offense involved the use of a vehicle.

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(1)(f) (f) Revocations under s. 343.305 (10).

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)(a) (a) Convictions for violations under s. 346.63 (1) or (5), or a local ordinance in conformity with either section.

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)(c) (c) Convictions for violations under s. 346.63 (2) or (6).

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.

343.307(2)(g) (g) Revocations under s. 343.305 (10).

343.307(2)(h) (h) Convictions for violations under s. 940.09 (1) or 940.25.

343.307(3) (3) If the same elements of the offense must be proven under a local ordinance or under a law of a federally recognized American Indian tribe or band in this state as under s. 346.63 (1) (a) or (b) or both, or s. 346.63 (5), the local ordinance or the law of a federally recognized American Indian tribe or band in this state shall be considered to be in conformity with s. 346.63 (1) (a) or (b) or both, or s. 346.63 (5), for purposes of ss. 343.30 (1q) (b) 1., 343.305 (10) (b) 1. and 346.65 (2) and (2j).

343.307 History History: 1977 c. 193; 1981 c. 20, 184; 1985 a. 80, 337; 1987 a. 3; 1989 a. 105, 271, 359; 1991 a. 39, 277; 1995 a. 448; 1997 a. 84.

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)(a) (a) Homicide or great bodily harm resulting from the operation of a motor vehicle and which is criminal under s. 346.62 (4), 940.06, 940.09, 940.10 or 940.25.

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).

343.31(1)(b) (b) Upon the 2nd or any subsequent conviction for operation of a motor vehicle while under the influence of an intoxicant, controlled substance, 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, in accordance with the order of the court. This paragraph does not apply to a law of a federally recognized American Indian tribe or band in this state.

Effective date note NOTE: Par. (b) 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 (b) Upon conviction for operation of a motor vehicle while under the influence of an intoxicant, controlled substance, 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, in accordance with the order of the court.

343.31(1)(c) (c) Any felony in the commission of which a motor vehicle is used.

343.31(1)(d) (d) Failure to stop and render aid as required under the laws of this state in the event of a motor vehicle accident resulting in death of or personal injury to another or in serious property damage.

343.31(1)(g) (g) Operating a motor vehicle without having furnished proof of financial responsibility when proof of financial responsibility is required.

343.31(1)(hm) (hm) A violation of 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. Revocation under this paragraph shall be for a period of 6 months unless a lesser period of revocation is ordered under s. 343.30 (1g) (b).

343.31(1)(i) (i) Knowingly fleeing or attempting to elude a traffic officer.

343.31(1m) (1m) The department shall revoke or suspend a person's operating privilege upon receiving a record of conviction showing that the person has been convicted under a law of a federally recognized American Indian tribe or band in this state which is in conformity with s. 346.63 (1).

Effective date note NOTE: Sub. (1m) is repealed 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.

343.31(2) (2) The department shall revoke or suspend, respectively, the operating privilege of any resident upon receiving notice of the conviction of such person in another jurisdiction for an offense therein which, if committed in this state, would have been cause for revocation or suspension under this section or under s. 343.30 (1q). Such offenses shall include violation of any law of another jurisdiction that prohibits 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. Upon receiving similar notice with respect to a nonresident, the department shall revoke or suspend, respectively, the privilege of the nonresident to operate a motor vehicle in this state. Such suspension or revocation shall not apply to the operation of a commercial motor vehicle by a nonresident who holds a valid commercial driver license issued by another state.

Effective date note NOTE: Sub. (2) 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 (2) The department shall revoke the operating privilege of any resident upon receiving notice of the conviction of such person in another jurisdiction for an offense therein which, if committed in this state, would have been cause for revocation under this section or for revocation under s. 343.30 (1q). Such offenses shall include violation of any law of another jurisdiction that prohibits 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. Upon receiving similar notice with respect to a nonresident, the department shall revoke the privilege of the nonresident to operate a motor vehicle in this state. Such revocation shall not apply to the operation of a commercial motor vehicle by a nonresident who holds a valid commercial driver license issued by another state.

343.31(2m) (2m) The department may suspend or revoke, respectively, the operating privilege of any resident upon receiving notice of the conviction of that person under a law of another jurisdiction or a federally recognized American Indian tribe or band in this state for an offense which, if the person had committed the offense in this state and been convicted of the offense under the laws of this state, would have permitted suspension or revocation of the person's operating privilege under s. 343.30 (1g). Upon receiving similar notice with respect to a nonresident, the department may suspend or revoke the privilege of the nonresident to operate a motor vehicle in this state. The suspension or revocation shall not apply to the operation of a commercial motor vehicle by a nonresident who holds a valid commercial driver license issued by another state. A suspension or revocation under this subsection shall be for any period not exceeding 6 months.

343.31(2r) (2r) The department shall suspend a person's operating privilege upon receiving a record of conviction showing that the person has been convicted of perjury or the making of a false affidavit or the making of a false statement or certification to the department under this chapter or any other law relating to the ownership or operation of motor vehicles.

343.31(2u) (2u) The department shall suspend the operating privilege of a person who has been issued an occupational license upon receiving a record of conviction showing that the person has been convicted of any of the following offenses.

343.31(2u)(a) (a) Any offense that may be counted under s. 351.02 (1) (a), other than s. 351.02 (1) (a) 5.

343.31(2u)(b) (b) Exceeding by 20 or more miles per hour any lawful or posted maximum speed limit.

343.31(2u)(c) (c) Participating in any race or speed or endurance contest.

Effective date note NOTE: Sub. (2u) is created 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.

343.31(3) (3)

343.31(3)(a)(a) Except as otherwise provided in this subsection or sub. (2m), all revocations or suspensions under this section shall be for a period of one year.

343.31(3)(b) (b) If the suspension results from a first conviction of operation of a motor vehicle while under the influence of an intoxicant, controlled substance, 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 and the conviction occurs in another jurisdiction, the period of suspension shall be 6 months.

Effective date text (b) If the revocation results from a first conviction of operation of a motor vehicle while under the influence of an intoxicant, controlled substance, 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 and the conviction occurs in another jurisdiction, the period of revocation shall be 6 months.

343.31(3)(bm) (bm) For any person convicted under a law of a federally recognized American Indian tribe or band in this state in conformity with s. 346.63 (1):

343.31(3)(bm)1. 1. Except as provided in subds. 3. and 4., the department shall suspend or 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 (1). 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 (1), that conviction, suspension or revocation shall count as a prior conviction, suspension or revocation under this subdivision.

Effective date note NOTE: Subd. 1. is shown below as affected by 1997 Wis. Act 84 and 1999 Wis. Act 109, as merged by the revisor under s. 13.93 (2) (c), 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:

Effective date text 1. Except as provided in subds. 3. and 4., the department 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 (1). 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 (1), that conviction, suspension or revocation shall count as a prior conviction, suspension or revocation under this subdivision.

343.31(3)(bm)2. 2. Except as provided in subd. 3., 4. or 4m., for the first conviction, the department shall suspend the person's operating privilege for not less than 6 months nor more than 9 months. If an Indian tribal court in this state suspends the person's privilege to operate a motor vehicle on tribal lands for not less than 6 months nor more than 9 months for the conviction specified in par. (bm) (intro.), the department shall impose the same period of suspension. The person is eligible for an occupational license under s. 343.10 at any time.

Effective date note NOTE: Subd. 2. 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 2. Except as provided in subd. 3., 4. or 4m., for the first conviction, the department shall revoke the person's operating privilege for not less than 6 months nor more than 9 months. If an Indian tribal court in this state revokes the person's privilege to operate a motor vehicle on tribal lands for not less than 6 months nor more than 9 months for the conviction specified in par. (bm) (intro.), the department shall impose the same period of revocation. The person is eligible for an occupational license under s. 343.10 at any time.

343.31(3)(bm)3. 3. Except as provided in subd. 4m., if the number of convictions under ss. 940.09 (1) and 940.25 in the person's lifetime, plus the total number of suspensions, revocations and other convictions counted under s. 343.307 (1) within a 10-year period, equals 2, the department shall revoke the person's operating privilege for not less than one year nor more than 18 months. If an Indian tribal court in this state revokes the person's privilege to operate a motor vehicle on tribal lands for not less than one year nor more than 18 months for the conviction specified in par. (bm) (intro.), the department shall impose the same period of revocation. After the first 60 days of the revocation period, the person is eligible for an occupational license under s. 343.10.

343.31(3)(bm)4. 4. Except as provided in subd. 4m., if the number of convictions under ss. 940.09 (1) and 940.25 in the person's lifetime, plus the total number of other suspensions, revocations and convictions counted under s. 343.307 (1), equals 3 or more, the department shall revoke the person's operating privilege for not less than 2 years nor more than 3 years. If an Indian tribal court in this state revokes the person's privilege to operate a motor vehicle on tribal lands for not less than 2 years nor more than 3 years for the conviction specified in par. (bm) (intro.), the department shall impose the same period of revocation. After the first 90 days of the revocation period, the person is eligible for an occupational license under s. 343.10.

343.31(3)(bm)4m. 4m. If the Indian tribal court that convicted the person determined that 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 conviction, the applicable minimum and maximum suspension or revocation periods under subd. 2., 3. or 4. for the conviction are doubled.