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), 95-1074. But see Washburn County v. Smith, 2008 WI 23, 308 Wis. 2d 65, 746 N.W.2d 243, 06-3163.
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), 96-3565.
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), 95-1159.
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 611, 558 N.W.2d 687 (Ct. App. 1996), 96-1603.
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), 97-0417.
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), 97-0169.
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 417 (Ct. App. 1997), 97-0169.
343.305 Annotation The chief of the Department of Transportation 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), 96-2822.
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), 98-0251.
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), 98-0915.
343.305 Annotation A warrantless blood draw is permissible when: 1) the blood is taken to obtain evidence of intoxication from a person lawfully arrested; 2) there is a clear indication that evidence of intoxication will be produced; 3) the method used is reasonable and performed in a reasonable manner; and 4) the arrestee presents no reasonable objection. State v. Thorstad, 2000 WI App 199, 238 Wis. 2d 666, 618 N.W.2d 240, 99-1765. But see Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 195 L. Ed 2d 560 (2016).
343.305 Annotation Although a notice of intent to revoke operating privileges under sub. (9) (a) did not contain “substantially all" of the statutorily required information, it provided meaningful notice and opportunity to be heard. As such the error was technical and required a finding of prejudice for dismissal of the action. State v. Gautschi, 2000 WI App 274, 240 Wis. 2d 83, 622 N.W.2d 24, 99-3065.
343.305 Annotation The notice under sub. (4) regarding the consequences for failing to submit to a blood alcohol does not violate due process. It does not mislead accused persons regarding taking or refusing the blood alcohol test. State v. Nord, 2001 WI App 48, 241 Wis. 2d 387, 625 N.W.2d 302, 00-1529.
343.305 Annotation In giving the warnings required under sub. (4), an officer is required to utilize methods that, according to the circumstances at the time, are reasonable and will convey the warnings. Whether the accused driver comprehends the warnings is not part of the inquiry. A driver's hearing impairment must be taken into account and accommodated as is reasonably possible under the circumstances. State v. Piddington, 2001 WI 24, 241 Wis. 2d 754, 623 N.W.2d 528, 99-1250.
343.305 Annotation Drivers have no right to refuse a chemical test and need not consent to a test. When there is a refusal, the implied consent law does not preclude police from pursuing other constitutional avenues for collecting evidence. State v. Gibson, 2001 WI App 71, 242 Wis. 2d 267, 626 N.W.2d 73, 00-2399.
343.305 Annotation That a person agreed to a breath test but not a blood test, did not render police insistence on a blood test unreasonable. State v. Wodenjak, 247 Wis. 2d 554, 634 N.W.2d 867.
343.305 Annotation By consenting to the taking of a blood sample, the defendant also consented to the chemical analysis of the sample. These are not separate events for warrant requirement purposes. State v. VanLaarhoven, 2001 WI App 275, 248 Wis. 2d 881, 637 N.W.2d 411, 01-0222.
343.305 Annotation A warrantless blood draw by a physician in a jail setting may be unreasonable if it invites an unjustified element of personal risk of pain and infection. Absent evidence of those risks, a blood draw under those circumstances was reasonable. State v. Daggett, 2002 WI App 32, 250 Wis. 2d 112, 640 N.W.2d 546, 01-1417.
343.305 Annotation The circuits court's improper denial of a hearing requested under sub. (8) as the result of its miscalculation of time that resulted in a suspension without a hearing was not a fundamental error entitling the defendant to dismissal of the conviction against him when the court, on realizing the error, conducted a hearing and found that the defendant's refusal was improper and a license suspension was in order. State v. Carlson, 2002 WI App 44, 250 Wis. 2d 562, 641 N.W.2d 451, 01-1088.
343.305 Annotation Sub. (9) (a) does not provide the exclusive option when faced with an arrestee who refuses to submit to s chemical test. An officer may acknowledge the refusal, complete the sub. (9) (a) intent to revoke form, and then proceed with an involuntary blood test, using reasonable force to withdraw blood from a noncompliant suspect. The officer may necessarily inform a suspect that such a procedure is a possibility upon his or her refusal. State v. Marshall, 2002 WI App 73, 251 Wis. 2d 408, 642 N.W.2d 571, 01-1403.
343.305 Annotation When the arresting officer makes no specific threats beyond what arises under this section, the threat of lost driving privileges does not constitute a coercive measure that invalidates a defendant's consent for 4th amendment purposes. An arresting officer, by reading the informing the accused form, simply states the truth: refusal to submit to a chemical test will result in driving privileges being revoked. Officers are entitled to make true statements. Village of Little Chute v. Walitalo, 2002 WI App 211, 256 Wis. 2d 1032, 650 N.W.2d 891, 01-3060. See also State v. Wintlend, 2002 WI App 314, 258 Wis. 2d 875, 655 N.W.2d 745, 02-0965.
343.305 Annotation Repeated requests for an attorney can amount to a refusal as long as the officer informs the driver that there is no right to an attorney at that point. State v. Baratka, 2002 WI App 288, 258 Wis. 2d 342, 654 N.W.2d 875, 02-0770.
343.305 Annotation If an officer explicitly assures or implicitly suggests that a custodial defendant has a right to consult counsel before deciding whether to submit to the test, the defendant relied on the offering, and the officer nonetheless marked a refusal despite the defendant's reliance, then the refusal was reasonably made. State v. Verkler, 2003 WI App 37, 260 Wis. 2d 391, 659 N.W.2d 137, 02-1545.
343.305 Annotation This section does not require that test results must be suppressed when there is a failure to reasonably convey the implied consent warnings to an apprehended driver. Under the circumstances of this case, on remand the defendant was entitled to pursue an order prohibiting the automatic admissibility of the blood test result pursuant to s. 885.235, which if granted would require the state to establish the admissibility of the blood test, including establishing a foundation. State v. Begicevic, 2004 WI App 57, 270 Wis. 2d 675, 678 N.W.2d 293, 03-1223.
343.305 Annotation The approval of an instrument under sub. (6) (b) without promulgation of an administrative rule under ch. 227 did not constitute creation of an invalid administrative rule. County of Dane v. Winsand, 2004 WI App 86, 271 Wis. 2d 786, 679 N.W.2d 885, 03-2004.
343.305 Annotation Sub. (5) (a) does not impose a requirement that the request for an additional blood test be made after the first test is completed. State v. Schmidt, 2004 WI App 235, 277 Wis. 2d 561, 691 N.W.2d 379, 04-0904.
343.305 Annotation When police have informed a suspect of his or her right to an alternative test at agency expense, the suspect has ample opportunity to make a request, the suspect makes no request, and the suspect is released from custody and leaves the presence of custodial police, a subsequent request for an alternative test at agency expense is not a request within the meaning of sub. (5) (a). State v. Fahey, 2005 WI App 171, 285 Wis. 2d 679, 702 N.W.2d 400, 04-0102.
343.305 Annotation There is no right to counsel at the refusal hearing because such a hearing is civil, not criminal, in nature and therefore there is no constitutional right to effective assistance of counsel. State v. Krause, 2006 WI App 43, 289 Wis. 2d 573, 712 N.W.2d 67, 05-0472.
343.305 Annotation Giving Miranda warnings prior to reading Informing the Accused warnings under this section does not lead to a conclusion that the officer explicitly assured or implicitly suggested that a defendant has a right to consult counsel or to stand silent in the face of the implied consent warnings. Such a conclusion requires that the accused must be told he or she has the right to consult with counsel before deciding to submit to chemical testing and that the accused relied on the assurance or suggestion when responding to the request for a chemical test. State v. Kliss, 2007 WI App 13, 298 Wis. 2d 275, 728 N.W.2d 9, 06-0113.
343.305 Annotation There cannot be substantial compliance with sub. (4) when the law enforcement officer fails to give the defendant the statutorily required information about penalties. If the circuit court determines that the officer failed to inform the accused in compliance with the statute, the court shall order that no action be taken on the operating privilege on account of the person's refusal to take the test in question. This does not apply misstatements of information beyond the required information, which are governed by Ludwigson. Washburn County v. Smith, 2008 WI 23, 308 Wis. 2d 65, 746 N.W.2d 243, 06-3163.
343.305 Annotation When law enforcement invokes this section to obtain a primary test for intoxication, it must: 1) provide the primary test of its choice at its own expense; 2) provide an opportunity for a second test of its choice at agency expense; and 3) if the second test is refused by the suspect in favor of one at his or her own expense, it must provide a reasonable opportunity for a test of the suspect's choice at the suspect's expense. State v. Batt, 2010 WI App 155, 330 Wis. 2d 159, 793 N.W.2d 104, 09-3069.
343.305 Annotation Sub. (9) (a) 5. a. does not limit the circuit court to considering whether, based on all the evidence gathered up until the moment of the arrest, the officer had probable cause to believe the defendant was operating while under the influence of an intoxicant. A defendant may also contest whether he or she was lawfully placed under arrest. As part of this inquiry, the circuit court may entertain an argument that the arrest was unlawful because the traffic stop that preceded it was not justified by either probable cause or reasonable suspicion. State v. Anagnos, 2012 WI 64, 341 Wis. 2d 576, 815 N.W.2d 675, 10-1812.
343.305 Annotation Under Brooks, a circuit court has the discretionary authority to dismiss a refusal charge only if the defendant has already pleaded guilty to the underlying OWI or OWI-related charge by the time of his or her refusal hearing, which was timely requested. Extending Brooks to allow circuit courts the discretionary authority to dismiss refusal charges in cases in which a defendant has pleaded not guilty to the underlying OWI, PAC, or other related charge would contravene the purpose of this section. State v. Bentdahl, 2013 WI 106, 351 Wis. 2d 739, 840 N.W.2d 704, 12-1426.
343.305 Annotation It is incorrect to say that a driver who consents to a blood draw after receiving the advisement contained in the “Informing the Accused" form has given “implied consent." If a driver consents under that circumstance, that consent is actual consent, not implied consent. If the driver refuses to consent, he or she thereby withdraws “implied consent" and accepts the consequences of that choice. The implied consent law is explicitly designed to allow the driver, and not the police officer, to make the choice as to whether the driver will give or decline to give actual consent to a blood draw when put to the choice between consent or automatic sanctions. State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d 867, 13-0852. But see State v. Brar, 2017 WI 73, 376 Wis. 2d 685, 898 N.W.2d 499, 15-1261; State v. Mitchell, 2018 WI 84, 383 Wis. 2d 192, 914 N.W.2d 151, 15-0304.
343.305 Annotation Sub. (3) (ar) 2. is not facially unconstitutional. It does not authorize law enforcement to compel an unreasonable search, as it does not authorize searches. It authorizes law enforcement to require a driver to choose between giving actual consent to a blood draw, or withdrawing “implied consent" and suffering implied-consent-law sanctions. State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d 867, 13-0852. But see State v. Mitchell, 2018 WI 84, 383 Wis. 2d 192, 914 N.W.2d 151, 15-0304.
343.305 Annotation The “reason to believe" standard in sub. (3) (ar) 2. requires that the law enforcement officer have a “minimal suspicion" that the defendant has committed a traffic violation. State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d 867, 13-0852. But see State v. Mitchell, 2018 WI 84, 383 Wis. 2d 192, 914 N.W.2d 151, 15-0304.
343.305 Annotation Testimony showed that a doctor had issued a standing order authorizing an ambulance district's EMTs to draw blood when requested to do so by law enforcement, and instead of personally observing each individual blood draw, the doctor had allowed the EMTs to perform blood draws on their own while making himself accessible by telephone should any problems arise. The testimony left no doubt that it was the doctor who was in charge of blood-drawing activities conducted by the EMTs. To require more evidence than what the state provided to establish that the EMT who drew the blood in this OWI case was acting under the direction of the doctor would have been to require a specific type or degree of direction that sub. (5) (b) does not so specify. State v. Kozel, 2017 WI 3, 373 Wis. 2d 1, 889 N.W.2d 423, 15-0656.
343.305 Annotation It was constitutionally reasonable for an EMT, as opposed to a physician, to draw an OWI suspect's blood. The important point for constitutional purposes was that the evidence demonstrated that the EMT was thoroughly trained and experienced in properly drawing blood. Also, it was not unreasonable for the blood draw to occur in the non-medical setting of the jail when the evidence indicated that the room in which the blood was drawn “was clean and as clean as a hospital emergency room,” and the EMT used a new blood draw kit containing a sterile needle. State v. Kozel, 2017 WI 3, 373 Wis. 2d 1, 889 N.W.2d 423, 15-0656.
343.305 Annotation A blood draw from the defendant under this section while the defendant was unconscious was permissible under the 4th amendment under the exigent circumstances doctrine when a deputy had probable cause to arrest the defendant for operating a vehicle with a prohibited alcohol concentration. State v. Howes, 2017 WI 18, 373 Wis. 2d 468, 893 N.W.2d 812, 14-1870.
343.305 Annotation Upon his or her lawful arrest for drunk driving, a defendant has no constitutional or statutory right to refuse to take a breathalyzer test and the state can comment at trial on the defendant's improper refusal to take the test. State v. Lemberger, 2017 WI 39, 374 Wis. 2d 617, 893 N.W.2d 232, 15-1452.
343.305 Annotation Sub. (3) (ar) 2. does not provide that if the driver refuses to take a test, the driver's operating privilege will be revoked. The statute states only that if a driver refuses to take any test the driver may be arrested. Sub. (4) sets forth the “Informing the Accused" form that a law enforcement officer is required to read to a person from whom a test specimen is requested under sub. (3) (ar). The form differs from sub. (3) (ar) 2., stating that if a driver refuses to take any test under sub. (3) (ar) 2., the driver's “operating privilege will be revoked." The proper advice to a defendant subject to sub. (3) (ar) 2. is that his or her operating privilege will be revoked if he or she fails to request a refusal hearing. State v. Blackman, 2017 WI 77, 377 Wis. 2d 339, 898 N.W.2d 774, 15-0450.
343.305 Annotation Revocation of a driver's operating privilege is unenforceable against a driver who has refused a test under sub. (3) (ar) 2. if the driver requests a refusal hearing. The issues at the hearing are limited to the state proving that the officer had probable cause to believe that the driver was driving or operating a motor vehicle under the influence and two other factors. The legislature did not remove the OWI-related probable cause requirement from a refusal hearing. The text of the statute clearly provides that when an officer requests a blood test pursuant to sub. (3) (ar) 2., the state cannot prevail at the refusal hearing because probable cause is a prerequisite to revocation of an operating license. State v. Blackman, 2017 WI 77, 377 Wis. 2d 339, 898 N.W.2d 774, 15-0450.
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 s. 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.
343.305 Annotation Using Preliminary Breath Test Results in Trials? Don't Hold Your Breath. Anderegg. Wis. Law. Jan. 2015.
343.305 Annotation OWI Blood Draws: An Uncertain Road Ahead. Anderegg. Wis. Law. Nov. 2017.
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 under s. 343.30 (1q) (b) and to determine the penalty under ss. 114.09 (2) and 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 a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, 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(1)(g) (g) Convictions for violations under s. 114.09 (1) (b) 1. or 1m.
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) Table 1, items (1) to (4).
343.307(2)(e) (e) Convictions under the law of another jurisdiction that prohibits a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, 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), (am), or (b), any combination of s. 346.63 (1) (a), (am), or (b), 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), (am), or (b), any combination of s. 346.63 (1) (a), (am), or (b), 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 Annotation An Illinois court's placement of an OWI offender under court supervision is a conviction that is counted as a prior offense under sub. (1) (d) when charging an OWI suspect in Wisconsin. Placement under court supervision as a result of a determination that the defendant violated or failed to comply with the law in a court of original jurisdiction meets the definition of conviction under s. 340.01 (9r). State v. List, 2004 WI App 230, 277 Wis. 2d 836, 691 N.W.2d 366, 03-3149.
343.307 Annotation The final phrase of sub. (1) (d), “as those or substantially similar terms are used in that jurisdiction's laws," indicates the broad scope of that provision. When determining a penalty, Wisconsin counts prior offenses committed in states with OWI statutes that differ significantly from Wisconsin's. “Substantially similar" simply emphasizes that the out-of-state statute need only prohibit conduct similar to the list of prohibited conduct in sub. (1) (d). State v. Puchacz, 2010 WI App 30, 323 Wis. 2d 741, 780 N.W.2d 536, 09-0840.
343.307 Annotation The definition of “conviction" in s. 340.01 (9r) applies to “convictions" in sub. (1) (d). Under sub. (1) (d), the other jurisdiction need only have a law that prohibits conduct specified in sub. (1) (d). The Illinois “zero tolerance" law punishes a person who is less than 21 years of age for refusing to submit to a chemical test, or for using a motor vehicle with an alcohol concentration above 0.00 and thus, in the context of sub. (1) (d), was a conviction under a law of another jurisdiction that prohibits refusal of chemical testing or prohibits using a motor vehicle with an excess or specified range of alcohol concentration. State v. Carter, 2010 WI 132, 330 Wis. 2d 1, 794 N.W.2d 213, 08-3144.
343.307 Annotation In sub. (1) (d), the phrase “with an excess or specified range of alcohol concentration" modifies the phrase “using a motor vehicle," not the phrase “ using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof." Thus, the statute should be read as follows: convictions under the law of another jurisdiction that prohibits a person from using a motor vehicle with an excess or specified range of alcohol concentration. State v. Carter, 2010 WI 132, 330 Wis. 2d 1, 794 N.W.2d 213, 08-3144.
343.307 Annotation The elements of an underlying first-offense OWI need not be proven to a jury beyond a reasonable doubt in a criminal proceeding for a subsequent OWI violation. State v. Verhagen, 2013 WI App 16, 346 Wis. 2d 196, 827 N.W.2d 891, 11-2033.
343.307 Annotation Sub. (1) (d)'s inclusion of out-of-state convictions under a law that prohibits driving “with an excess or specified range of alcohol concentration" does not violate the Equal Protection Clause, even if a consequence is to treat Illinois zero tolerance offenses differently than Wisconsin absolute sobriety offenses. Ease of administration in Wisconsin courts provides a rational basis for a single, straightforward, and broad definition of out-of-state offenses applicable to all other jurisdictions. The definition consistently counts all convictions under out-of-state laws prohibiting driving with an excess or specified range of alcohol concentration regardless of their labels or treatment. State v. Hirsch, 2014 WI App 39, 353 Wis. 2d 453, 847 N.W.2d 192, 13-0427.
343.307 Annotation Every term in sub. (1) (d) relates in some way to a person operating a motor vehicle with either drugs or alcohol, or both, in his or her system. That critical aspect is completely absent from the reckless driving offense of which the defendant was convicted. The initial charge, sanctions, and potential future consequences are of no moment. State v. Jackson, 2014 WI App 50, 354 Wis. 2d 99, 851 N.W.2d 465, 13-1282.
343.307 Annotation A prior expunged operating while intoxicated (OWI) conviction constitutes a prior conviction under sub. (1) when determining the penalty for OWI-related offenses. The state must prove the prior OWI conviction by a preponderance of the evidence if the prior conviction is not an element of the charged offense. State v. Braunschweig, 2018 WI 113, 384 Wis. 2d 742, 921 N.W.2d 199, 17-1261.
343.307 Annotation A conviction that has been collaterally attacked meets the definition of “conviction" under s. 340.01 (9r) because a collateral attack does not overturn or vacate the conviction. Instead, it attempts to avoid the conviction's force of law in a subsequent criminal proceeding. Thus, as long as the adjudication of guilt is unvacated, the conviction remains on DOT's records and should be counted in determining whether to revoke the offender's operating privilege. OAG 2-14.
343.31 343.31 Revocation or suspension of licenses after certain convictions or declarations.
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:
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2017-18 Wisconsin Statutes updated through 2019 Wis. Act 7 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on July 1, 2019. Published and certified under s. 35.18. Changes effective after July 1, 2019, are designated by NOTES. (Published 7-1-19)