346.63(6)(a)(a) No person may cause injury to another person 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.
346.63(6)(b) (b) A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of par. (a) or sub. (2) (a) 1. or both for acts arising out of the same incident or occurrence. If the person is charged with violating both par. (a) and sub. (2) (a) 1. in the complaint, the crimes shall be joined under s. 971.12. If the person is found guilty of violating both par. (a) and sub. (2) (a) 1. 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. Paragraph (a) and sub. (2) (a) 1. each require proof of a fact for conviction which the other does not require.
346.63(6)(c) (c) Under par. (a), the person charged has a defense if it appears by a preponderance of the evidence that the injury would have occurred even if 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 an alcohol concentration described under par. (a).
346.63(7) (7)
346.63(7)(a)(a) No person may drive or operate or be on duty time with respect to a commercial motor vehicle under any of the following circumstances:
346.63(7)(a)1. 1. While having an alcohol concentration above 0.0.
346.63(7)(a)2. 2. Within 4 hours of having consumed or having been under the influence of an intoxicating beverage, regardless of its alcohol content.
346.63(7)(a)3. 3. While possessing an intoxicating beverage, regardless of its alcohol content. This subdivision does not apply to possession of an intoxicating beverage if the beverage is unopened and is manifested and transported as part of a shipment.
346.63(7)(b) (b) A person may be charged with and a prosecutor may proceed upon complaints based on a violation of this subsection and sub. (1) (a) or (b) or both, or sub. (1) (a) or (5) (a), or both, for acts arising out of the same incident or occurrence. If the person is charged with violating this subsection and sub. (1) or (5), the proceedings shall be joined. If the person is found guilty of violating both this subsection and sub. (1) or (5) 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. This subsection and subs. (1) and (5) each require proof of a fact for conviction which the others do not require. Each conviction shall be reported to the department and counted separately for purposes of suspension or revocation of the operator's license and disqualification.
346.63 Note NOTE: For legislative intent see chapter 20, laws of 1981, section 2051 (13).
346.63 Annotation It is no defense that defendant is an alcoholic. State v. Koller, 60 W (2d) 755.
346.63 Annotation Evidence that defendant, found asleep in parked car at 12:53 a.m., had driven to the parking place 14 minutes earlier, was sufficient to support conviction for operating a car while intoxicated "at or about 12:53 a.m." Monroe County v. Kruse, 76 W (2d) 126, 250 NW (2d) 375.
346.63 Annotation Intent to drive or move motor vehicle is not required to find accused guilty of operating vehicle while under influence of intoxicant. Milwaukee County v. Proegler, 95 W (2d) 614, 291 NW (2d) 608 (Ct. App. 1980).
346.63 Annotation Section 346.63 (4), 1979 stats., does not prevent state from introducing corroborating evidence. State v. Burkman, 96 W (2d) 630, 292 NW (2d) 641 (1980).
346.63 Annotation First violation of ss. 346.63 (1), 1979 stats., is not a criminal offense. State v. Schulz, 100 W (2d) 329, 302 NW (2d) 59 (Ct. App. 1981).
346.63 Annotation Court properly instructed jury that it could infer from a breathalyzer reading of .13% that defendant was intoxicated. Alcohol absorption rate discussed. State v. Vick, 104 W (2d) 678, 312 NW (2d) 489 (1981).
346.63 Annotation Previous conviction for drunk driving is penalty enhancer, not element of crime. State v. McAllister, 107 W (2d) 532, 319 NW (2d) 865 (1982).
346.63 Annotation See note to Art. I, sec. 8, citing State v. Haefer, 110 W (2d) 381, 328 NW (2d) 894 (Ct. App. 1982).
346.63 Annotation Sub. (1) (b) is not unconstitutionally vague. State v. Muehlenberg, 118 W (2d) 502, 347 NW (2d) 914 (Ct. App. 1984).
346.63 Annotation See note to 904.03, citing State v. Hinz, 121 W (2d) 282, 360 NW (2d) 56 (Ct. App. 1984).
346.63 Annotation See note to 939.22, citing State v. Waalen, 130 W (2d) 18, 386 NW (2d) 47 (1986).
346.63 Annotation Sub. (1) (b) establishes per se rule that it is violation to operate motor vehicle with specified breath alcohol content, regardless of individual's "partition ratio"; provision is constitutional. State v. McManus, 152 W (2d) 113, 447 NW (2d) 654 (1989).
346.63 Annotation First offender OMVWI prosecution is civil, and jeopardy does not attach to prevent subsequent criminal prosecution. State v. Lawton, 167 W (2d) 461, 482 NW (2d) 142 (Ct. App. 1992).
346.63 Annotation Because there is no privilege under 904.05 (4) (f) for chemical tests for intoxication, results of test taken for diagnostic purposes are admissible in OMVWI trial without patient approval. City of Muskego v. Godec, 167 W (2d) 536, 482 NW (2d) 79 (1992).
346.63 Annotation See note to Art. I, sec. 11 citing State v. Krause, 168 W (2d) 578, 484 NW (2d) 347 (Ct. App. 1992).
346.63 Annotation Dissipation of alcohol in the bloodstream constitutes a sufficient exigency to justify a warrantless blood draw when made at an officer's direction following an arrest for OWI. State v. Bohling, 173 W (2d) 529, 494 NW (2d) 399 (1993).
346.63 Annotation Where municipal court found defendant guilty of OWI and dismissed a blood alcohol count charge without finding guilt, the defendant's appeal of the OWI conviction under s. 800.14 (1) did not give the circuit court jurisdiction to here the BAC charge absent an appeal of the dismissal. Town of Menasha v. Bastian, 178 W (2d) 191, 503 NW (2d) 382 (Ct. App. 1993).
346.63 Annotation Two or more prior convictions are an element of sub. (1) (b), and evidence must be presented to prove the same regardless of the potential prejudice arising from evidence of prior convictions. State v. Ludeking, 195 W (2d) 132, 536 NW (2d) 392 (Ct. App. 1995).
346.63 Annotation Criminal prosecution for operating a motor vehicle with a prohibited blood alcohol content subsequent to administrative suspension of a driver's operating privileges does not constitute multiple punishment and therefore does not constitute double jeopardy. State v. McMaster, 198 W (2d) 542, 543 NW (2d) 499 (Ct. App. 1995).
346.63 Annotation Upon conviction for drunk driving, probation may be granted only pursuant to 972.13 (2) and 973.09. 60 Atty. Gen. 271.
346.63 Annotation First offense violations of (1) (a) are assimilated under federal Assimilative Crimes Act when committed on federal enclave. U.S. v. Manning, 700 F Supp. 1001 (W.D. Wis. 1988).
346.63 Annotation Offense definition in Wisconsin's impaired driving statutes. Hammer. 69 MLR 165 (1986).
346.63 Annotation Alcohol and other drugs in Wisconsin drivers: The laboratory perspective. Field. 69 MLR 235 (1986).
346.63 Annotation Effective use of expert testimony in the defense of drunk driving cases. Olson, WBB December 1981.
346.63 Annotation The new OMVWI law: Wisconsin changes its approach to the problem of drinking and driving. Hammer, WBB April, May 1982.
346.63 Annotation Double Jeopardy: A New Tool in the Arsenal of Drunk Driving Defenses. Sines & Ekman. Wis. Law. Dec. 1995.
346.635 346.635 Report arrest or out-of-service order to department. Whenever a law enforcement officer arrests a person for a violation of s. 346.63 (1), (5) or (7), or a local ordinance in conformity therewith, or s. 346.63 (2) or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, the officer shall notify the department of the arrest and of issuance of an out-of-service order under s. 343.305 (7) (b) or (9) (am) as soon as practicable.
346.635 History History: 1981 c. 20; 1989 a. 105.
346.637 346.637 Driver awareness program. The department shall conduct a campaign to educate drivers in this state concerning:
346.637(1) (1) The laws relating to operating a motor vehicle and drinking alcohol, using controlled substances or controlled substance analogs, or using any combination of alcohol, controlled substances and controlled substance analogs.
346.637(2) (2) The effects of alcohol, controlled substances or controlled substance analogs, or the use of them in any combination, on a person's ability to operate a motor vehicle.
346.637 History History: 1981 c. 20; 1995 a. 448.
346.64 346.64 Employment of drunken operators.
346.64(1) (1) No person who owns or has direct control of a commercial motor vehicle or any vehicle operated upon a highway for the conveyance of passengers for hire shall employ as an operator of such vehicle and retain in the person's employment any person who is addicted to the excessive use of intoxicating liquor or to the use of a controlled substance or controlled substance analog under ch. 961. In addition to being subject to fine or imprisonment as prescribed by law, such person shall forfeit $5 for each day such operator is retained in the person's employ.
346.64(2) (2) Upon conviction of an operator of a commercial motor vehicle or any vehicle operated for the conveyance of passengers for hire, for driving or operating such vehicle while under the influence of an intoxicant, the owner or person having direct control of such vehicle shall discharge such operator from such employment. No person shall employ or retain in employment as an operator of a commercial motor vehicle or a vehicle operated upon a highway for the conveyance of passengers for hire any person who has been so convicted within the preceding 6-month period or any person during a period of disqualification under s. 343.315, unless s. 343.055 (2) applies. In addition to being subject to fine or imprisonment as prescribed by law, such person shall forfeit $5 for each day such operator is retained in the person's employ contrary to the provisions of this subsection.
346.64 History History: 1971 c. 219; 1989 a. 105, 359; 1995 a. 448.
346.65 346.65 Penalty for violating sections 346.62 to 346.64.
346.65(1)(1) Except as provided in sub. (5m), any person who violates s. 346.62 (2):
346.65(1)(a) (a) May be required to forfeit not less than $25 nor more than $200, except as provided in par. (b).
346.65(1)(b) (b) May be fined not less than $50 nor more than $500 or imprisoned for not more than one year in the county jail or both if the total of convictions under s. 346.62 (2) 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. 346.62 (2) equals 2 or more in a 4-year period. The 4-year period shall be measured from the dates of the violations which resulted in the convictions.
346.65(2) (2) Any person violating s. 346.63 (1):
346.65(2)(a) (a) Shall forfeit not less than $150 nor more than $300, except as provided in pars. (b) to (f).
346.65(2)(b) (b) Except as provided in par. (f), shall be fined not less than $300 nor more than $1,000 and imprisoned for not less than 5 days nor more than 6 months if the total number of suspensions, revocations and convictions counted under s. 343.307 (1) equals 2 in a 5-year period. Suspensions, revocations or convictions arising out of the same incident or occurrence shall be counted as one.
346.65(2)(c) (c) Except as provided in par. (f), shall be fined not less than $600 nor more than $2,000 and imprisoned for not less than 30 days nor more than one year in the county jail if the total number of suspensions, revocations and convictions counted under s. 343.307 (1) equals 3 in a 10-year period, except that suspensions, revocations or convictions arising out of the same incident or occurrence shall be counted as one.
346.65(2)(d) (d) Except as provided in par. (f), shall be fined not less than $600 nor more than $2,000 and imprisoned for not less than 60 days nor more than one year in the county jail if the total number of suspensions, revocations and convictions counted under s. 343.307 (1) equals 4 in a 10-year period, except that suspensions, revocations or convictions arising out of the same incident or occurrence shall be counted as one.
346.65(2)(e) (e) Except as provided in par. (f), shall be fined not less than $600 nor more than $2,000 and imprisoned for not less than 6 months nor more than one year in the county jail if the total number of suspensions, revocations and convictions counted under s. 343.307 (1) equals 5 or more in a 10-year period, except that suspensions, revocations or convictions arising out of the same incident or occurrence shall be counted as one.
346.65(2)(f) (f) If there was a minor passenger under 16 years of age in the motor vehicle at the time of the violation that gave rise to the conviction under s. 346.63 (1), the applicable minimum and maximum forfeitures, fines or imprisonment under par. (a), (b), (c), (d) or (e) for the conviction are doubled. An offense under s. 346.63 (1) that subjects a person to a penalty under par. (c), (d) or (e) when there is a minor passenger under 16 years of age in the motor vehicle is a felony and the place of imprisonment shall be determined under s. 973.02.
346.65(2c) (2c) In sub. (2) (b) to (e), the 5-year or 10-year period shall be measured from the dates of the refusals or violations that resulted in the revocation or convictions. If a person has a suspension, revocation or conviction for any offense under a local ordinance or a state statute of another state that would be counted under s. 343.307 (1), that suspension, revocation or conviction shall count as a prior suspension, revocation or conviction under sub. (2) (b) to (e).
346.65(2e) (2e) If the court determines that a person does not have the ability to pay the costs and fine or forfeiture imposed under sub. (2) (a), (b), (c), (d), (e) or (f), the court may reduce the costs, fine and forfeiture imposed and order the person to pay, toward the cost of the assessment and driver safety plan imposed under s. 343.30 (1q) (c), the difference between the amount of the reduced costs and fine or forfeiture and the amount of costs and fine or forfeiture imposed under sub. (2) (a), (b), (c), (d), (e) or (f).
346.65(2g) (2g)
346.65(2g)(a)(a) In addition to the authority of the court under s. 973.05 (3) (a) to provide that a defendant perform community service work for a public agency or a nonprofit charitable organization in lieu of part or all of a fine imposed under sub. (2) (b) to (f), the court may provide that a defendant perform community service work for a public agency or a nonprofit charitable organization in lieu of part or all of a forfeiture under sub. (2) (a) or may require a person who is subject to sub. (2) to perform community service work for a public agency or a nonprofit charitable organization in addition to the penalties specified under sub. (2). Notwithstanding s. 973.05 (3) (b), an order may only apply if agreed to by the organization or agency. The court shall ensure that the defendant is provided a written statement of the terms of the community service order and that the community service order is monitored. Any organization or agency acting in good faith to which a defendant is assigned pursuant to an order under this subsection has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the defendant. The issuance or possibility of the issuance of a community service order under this subsection does not entitle an indigent defendant who is subject to sub. (2) (a) to representation by counsel under ch. 977.
346.65(2g)(b) (b) The court may require a person ordered to perform community service work under par. (a), or under s. 973.05 (3) (a) if that person's fine resulted from violating s. 346.63 (2), 940.09 (1) or 940.25, to participate in community service work that demonstrates the adverse effects of substance abuse or of operating a vehicle while under the influence of an intoxicant or other drug, including working at an alcoholism treatment facility approved under s. 51.45, an emergency room of a general hospital or a driver awareness program under s. 346.637. 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. If the opportunities available to perform community service work are fewer in number than the number of defendants eligible under this subsection, the court shall, when making an order under this paragraph, give preference to defendants who were under 21 years of age at the time of the offense. All provisions of par. (a) apply to any community service work ordered under this paragraph.
346.65(2g)(c) (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 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, 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.
346.65(2i) (2i) In addition to the authority of the court under sub. (2g) and s. 973.05 (3) (a), the court may order a defendant subject to sub. (2), or a defendant subject to s. 973.05 (3) (a) who violated s. 346.63 (2), 940.09 (1) or 940.25, to visit a site that demonstrates the adverse effects of substance abuse or of operating a vehicle while under the influence of an intoxicant or other drug, including an alcoholism treatment facility approved under s. 51.45 or an emergency room of a general hospital in lieu of part or all of any forfeiture imposed or in addition to any penalty imposed. The court may order the defendant to pay a reasonable fee, based on the person's ability to pay, to offset the costs of establishing, maintaining and monitoring the visits ordered under this subsection. The court may order a visit to the site only if agreed to by the person responsible for the site. If the opportunities available to visit sites under this subsection are fewer than the number of defendants eligible for a visit, the court shall, when making an order under this subsection, give preference to defendants who were under 21 years of age at the time of the offense. The court shall ensure that the visit is monitored. A visit to a site may be ordered for a specific time and a specific day to allow the defendant to observe victims of vehicle accidents involving intoxicated drivers. If it appears to the court that the defendant has not complied with the court order to visit a site or to pay a reasonable fee, the court may order the defendant to show cause why he or she should not be held in contempt of court. Any organization or agency acting in good faith to which a defendant is assigned pursuant to an order under this subsection has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the defendant. The issuance or possibility of the issuance of an order under this subsection does not entitle an indigent defendant who is subject to sub. (2) (a) to representation by counsel under ch. 977.
346.65(2j) (2j) Any person violating s. 346.63 (5):
346.65(2j)(a) (a) Shall forfeit not less than $150 nor more than $300 except as provided in par. (b), (c) or (d).
346.65(2j)(b) (b) Except as provided in par. (d), shall be fined not less than $300 nor more than $1,000 and imprisoned for not less than 5 days nor more than 6 months if the total of prior convictions, suspension and revocations counted under s. 343.307 (2) equals 2 in a 5-year period.
346.65(2j)(c) (c) Except as provided in par. (d), shall be fined not less than $600 nor more than $2,000 and imprisoned for not less than 30 days nor more than one year in the county jail if the total of prior convictions, suspensions and revocations counted under s. 343.307 (2) equals 3 or more in a 10-year period.
346.65(2j)(d) (d) If there was a minor passenger under 16 years of age in the commercial motor vehicle at the time of the violation that gave rise to the conviction under s. 346.63 (5), the applicable minimum and maximum forfeitures, fines or imprisonment under par. (a), (b) or (c) for the conviction are doubled. An offense under s. 346.63 (5) that subjects a person to a penalty under par. (c) when there is a minor passenger under 16 years of age in the commercial motor vehicle is a felony and the place of imprisonment shall be determined under s. 973.02.
346.65(2m) (2m) In imposing a sentence under sub. (2) for a violation of s. 346.63 (1) (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 is known, the court shall consider that level 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.
346.65(2q) (2q) Any person violating s. 346.63 (2m) shall forfeit $10. If there was a minor passenger under 16 years of age in the motor vehicle at the time of the violation that gave rise to the conviction under 346.63 (2m), the forfeiture is $20.
346.65(2r) (2r)
346.65(2r)(a)(a) In addition to the other penalties provided for violation of s. 346.63, a judge may order a defendant to pay restitution under s. 973.20.
346.65(2r)(b) (b) This subsection is applicable in actions concerning violations of local ordinances in conformity with s. 346.63.
346.65(2u) (2u)
346.65(2u)(a)(a) Any person violating s. 346.63 (7) shall forfeit $10.
346.65(2u)(b) (b) Upon his or her arrest for a violation of s. 346.63 (7), a person shall be issued an out-of-service order for a 24-hour period by the arresting officer under s. 343.305 (7) (b) or (9) (am).
346.65(2u)(c) (c) If a person arrested for a violation of s. 346.63 (7) refuses to take a test under s. 343.305, the refusal is a separate violation and the person is subject to revocation of the person's operating privilege under s. 343.305 (10) (em).
346.65(2w) (2w) In determining the number of prior convictions for purposes of sub. (2j), the court shall count suspensions, revocations and convictions that would be counted under s. 343.307 (2). Revocations, suspensions and convictions arising out of the same incident or occurrence shall be counted as one. The 5-year or 10-year period shall be measured from the dates of the refusals or violations which resulted in the revocation, suspension or convictions. If a person has a suspension, revocation or conviction for any offense that is counted under s. 343.307 (2), that suspension, revocation or conviction shall count as a prior suspension, revocation or conviction under this section.
346.65(3) (3) Except as provided in sub. (5m), any person violating s. 346.62 (3) shall be fined not less than $300 nor more than $2,000 and may be imprisoned for not less than 30 days nor more than one year in the county jail.
346.65(3m) (3m) Any person violating s. 346.63 (2) or (6) shall be fined not less than $300 nor more than $2,000 and may be imprisoned for not less than 30 days nor more than one year in the county jail. If there was a minor passenger under 16 years of age in the motor vehicle at the time of the violation that gave rise to the conviction under s. 346.63 (2) or (6), the offense is a felony, the applicable minimum and maximum fines or periods of imprisonment for the conviction are doubled and the place of imprisonment shall be determined under s. 973.02.
346.65(4) (4) Any person violating s. 346.64 may be fined not less than $50 nor more than $500 or imprisoned not more than 6 months or both.
346.65(5) (5) Except as provided in sub. (5m), any person violating s. 346.62 (4) shall be fined not less than $600 nor more than $2,000 and may be imprisoned for not less than 90 days nor more than 18 months.
346.65(5m) (5m) If an operator of a vehicle violates s. 346.62 (2) to (4) where persons engaged in work in a highway maintenance or construction area are at risk from traffic, any applicable minimum and maximum forfeiture or fine specified in sub. (1), (3) or (5) for the violation shall be doubled.
346.65(6) (6)
346.65(6)(a)1.1. Except as provided in this paragraph, the court may order a law enforcement officer to seize a motor vehicle, or, if the motor vehicle is not ordered seized, shall order a law enforcement officer to equip the motor vehicle with an ignition interlock device or immobilize any motor vehicle 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) or (b) or (2) (a) 1. or 2., 940.09 (1) (a) or (b) or 940.25 (1) (a) or (b) if the person whose operating privilege is revoked under s. 343.305 (10) or who is convicted of the violation has 2 prior suspensions, revocations or convictions within a 10-year period that would be counted under s. 343.307 (1). The court shall not order a motor vehicle equipped with an ignition interlock device or immobilized if that would result in undue hardship or extreme inconvenience or would endanger the health and safety of a person.
346.65(6)(a)2. 2. The court shall order a law enforcement officer to seize a motor vehicle owned by a person whose operating privilege is revoked under s. 343.305 (10) or who commits a violation of s. 346.63 (1) (a) or (b) or (2) (a) 1. or 2., 940.09 (1) (a) or (b) or 940.25 (1) (a) or (b) if the person whose operating privilege is revoked under s. 343.305 (10) or who is convicted of the violation has 3 or more prior suspensions, revocations or convictions within a 10-year period that would be counted under s. 343.307 (1).
Loading...
Loading...
This is an archival version of the Wis. Stats. database for 1995. See Are the Statutes on this Website Official?