343.305 Annotation
State need not prove that notices were sent to state officers under sub. (3) (b), 1985 stats. [now sub. (9) (a)]. State v. Polinski, 96 W (2d) 43, 291 NW (2d) 465 (1980).
343.305 Annotation
Where driver consented to officer's request to test breath, but officer decided to test urine instead, driver's refusal to test urine justified revocation of driver's license. State v. Pawlow, 98 W (2d) 703, 298 NW (2d) 220 (Ct. App. 1980).
343.305 Annotation
State need not affirmatively prove compliance with administrative code procedures as foundation for admission of breathalyzer test. City of New Berlin v. Wertz, 105 W (2d) 670, 314 NW (2d) 911 (Ct. App. 1981).
343.305 Annotation
Where driver pled guilty to underlying OWI charge, charge of refusing test under s. 343.305, 1979 stats., was properly dismissed as unnecessary. State v. Brooks, 113 W (2d) 347, 335 NW (2d) 354 (1983).
343.305 Annotation
Breathalyzer approved in administrative code has prima facie presumption of accuracy. State v. Dwinell, 119 W (2d) 305, 349 NW (2d) 739 (Ct. App. 1984).
343.305 Annotation
See note to s. 345.421, citing State v. Ehlen, 119 W (2d) 451, 351 NW (2d) 503 (1984).
343.305 Annotation
Judge's erroneous exclusion of defendant's explanation for refusal to test blood was not harmless error. State v. Bolstad, 124 W (2d) 576, 370 NW (2d) 257 (1985).
343.305 Annotation
At revocation hearing under sub. (3) (b) 5., 1985 stats. [now sub. (9) (a) 5.], state need not establish to reasonable certainty that defendant was actual driver of vehicle stopped by police. Probable cause standard satisfies due process. State v. Nordness, 128 W (2d) 15, 381 NW (2d) 300 (1986).
343.305 Annotation
Phrase in sub. (2) (c), 1985 stats. [now sub. (3) (b)], "not capable of withdrawing consent," must be construed narrowly and applied infrequently. State v. Disch, 129 W (2d) 225, 385 NW (2d) 140 (1986).
343.305 Annotation
Under facts of case, state's refusal to provide alternative blood alcohol test did not violate due process. State v. McCrossen, 129 W (2d) 277, 385 NW (2d) 161 (1986).
343.305 Annotation
Arresting officer need not inform accused that test refusal could be used against accused at trial. State v. Crandall, 133 W (2d) 251, 394 NW (2d) 905 (1986).
343.305 Annotation
Mental disorder cannot justify test refusal unless severe enough that driver is deemed under sub. (3) (b) not to have refused at all. State v. Hagaman, 133 W (2d) 381, 395 NW (2d) 617 (Ct. App. 1986).
343.305 Annotation
Implied consent law does not prevent state from obtaining chemical test evidence by alternative constitutional means. State v. Zielke, 137 W (2d) 39, 403 NW (2d) 427 (1987).
343.305 Annotation
Under (former) sub. (4) (c) accused must be informed of possible penalties, including possible fine, jail sentence and suspension or revocation of operating privileges. County of Eau Claire v. Resler, 151 W (2d) 645, 446 NW (2d) 72 (Ct. App. 1989).
343.305 Annotation
(Former) sub. (4) (c) does not conflict with sub. (8) (b) 2. d.; sub. (4) requires that accused be informed of ramifications of any test result of 0.1% or more, not of each one. Whether each test results in threshold BAC can only be challenged at administrative hearing. Any result over 0.1% will cause immediate suspension, but department may consider each result in determining whether suspension continues. City of Mequon v. Hess, 158 W (2d) 500, 463 NW (2d) 687 (Ct. App. 1990).
343.305 Annotation
Appeal of oral revocation order under sub. (10) may not be taken under s. 808.03 (1). State v. Borowski, 164 W (2d) 730, 476 NW (2d) 316 (Ct. App. 1991).
343.305 Annotation
Evidence of refusal not admissible where defendant not fully informed of consequences in accordance with (former) sub. (4). State v. Algaier, 165 W (2d) 515, 478 NW (2d) 292 (Ct. App. 1991).
343.305 Annotation
Substantial compliance with requirements of (former) sub. (4) where defendant was actually informed of all rights and penalties relating to him was sufficient. State v. Piskula, 168 W (2d) 135, 483 NW (2d) 250 (Ct. App. 1992). See also Village of Oregon v. Bryant, 188 W (2d) 680, 524 NW (2d) 635 (1994).
343.305 Annotation
Sub. (9) (a) requirement that a notice of intent to revoke shall be prepared and served immediately is directory and not mandatory. State v. Moline, 170 W (2d) 531, 489 NW (2d) 667 (Ct. App. 1992).
343.305 Annotation
An accused's request under sub. (5) (a) for his or her own test only requires the arresting agency to make the accused available to obtain the test, not to take an active part in obtaining the test. State v. Vincent, 171 W (2d) 124, 490 NW (2d) 761 (Ct. App. 1992).
343.305 Annotation
Where officer knows the defendant was licensed as a commercial operator and the ensuing revocation revokes all operating privileges, the commercial operator warnings, under sub. (4), must be given. State v. Geraldson, 176 W (2d) 487, 500 NW (2d) 415 (Ct. App. 1993).
343.305 Annotation
Sub. (9) (a) 1. does not require the issuance of a citation before a request is made that the defendant submit to a chemical test. State v. Sutton, 177 W (2d) 709, 503 NW (2d) 326 (Ct. App. 1993).
343.305 Annotation
Overstatement of the potential penalties for refusal to submit to a chemical test is substantial compliance with (former) sub. (4) and not grounds for reversing a revocation for refusal. State v. Sutton, 177 W (2d) 709, 503 NW (2d) 326 (Ct. App. 1993).
343.305 Annotation
There is no error in informing a driver of all warnings under (former) sub. (4), including those applying to only commercial operators and those applying to only noncommercial operators, regardless of the driver's status. Village of Elm Grove v. Landowski, 181 W (2d) 137, 510 NW (2d) 752 (Ct. App. 1993).
343.305 Annotation
Sub. (5) (b) requires a person drawing blood "under the direction of a physician" to have general authorization from the physician rather than a specific order in each case. State v. Penzkofer, 184 W (2d) 262, 516 NW (2d) 774 (Ct. App. 1994).
343.305 Annotation
The state's burden of persuasion at a suppression hearing is significantly greater than at a refusal hearing; consequently a defendant is not precluded from relitigating the issue of probable cause at a suppression hearing. State v. Wille, 185 W (2d) 673 518 NW (2d) 325 (Ct. App. 1994).
343.305 Annotation
Once a suspect has refused a second alternate blood alcohol test, there is no continuing obligation to accommodate future requests for an alternate test. State v. Stary, 187 W (2d) 266, 522 NW (2d) 32 (Ct. App. 1994).
343.305 Annotation
Refusal to submit to a field sobriety test was properly admitted as evidence to determine probable cause for arrest for intoxicated operation of a motor vehicle. State v. Babbit, 188 W (2d) 349, 525 NW (2d) 102 (Ct. App. 1994).
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 W (2d) 305, 531 NW (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 W (2d) 269, 542 NW (2d) 196 (Ct. App. 1995).
343.305 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, 206 W (2d) 30, 556 NW (2d) 673 (1996).
343.305 Annotation
Discovery procedures in chapter 804 apply to refusal hearings under this section. State v. Schoepp, 204 W (2d) 266, 554 NW (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 W (2d) 343, 555 NW (2d) 384 (Ct. App. 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 W (2d) 609, 558 NW (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 which follows an inadequate warning violates due process, but admission is subject to harmless error analysis. State v. Schirmang, 210 W (2d) 325, 565 NW (2d) 225 (Ct. App. 1997).
343.305 Annotation
When an officer exceeds his 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 W (2d) 871, 569 NW (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 W (2d) 101, 571 NW (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 W (2d) 101, 571 NW (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 W (2d) 429, 576 NW (2d) 904 (1998).
343.305 Annotation
Where 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 law discussed. 62 Atty. Gen. 174.
343.305 Annotation
Method by which a law enforcement agency may provide 2 tests for blood alcohol content under sub. (1), 1985 stats. [now sub. (2)] discussed. The agency is not required to actually own or physically possess the testing devices. 63 Atty. Gen. 119.
343.305 Annotation
This section, as affected by ch. 193, laws of 1977, does not vest in municipal courts the power to conduct hearings to determine the reasonableness of a refusal to submit to chemical tests to determine blood alcohol levels. 67 Atty. Gen. 185.
343.305 Annotation
Under s. 343.305 (1) and (4), 1985 stats., hospital personnel must administer test and report results at request of officer, 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
Law enforcement officer may use physical restraint, subject to constitutional limitations, in order to draw legally justified blood sample. Refusal by health professional to comply with law enforcement officer's authorized request to take blood sample from person whom officer has legally restrained by force constitutes refusal to aid an officer under 946.40.
74 Atty. Gen. 123.
343.305 AnnotationRefusal hearing under this section discussed.
77 Atty. Gen. 4.
343.305 Annotation
Massachusetts implied consent law which mandates suspension of license for refusal to take breath-analysis test did not violate Due Process Clause. Mackey v. Montrym, 443 US 1 (1979).
343.305 Annotation
Admission into evidence of defendant's refusal to submit to blood-alcohol test did not deny right against self-incrimination. South Dakota v. Neville, 459 US 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. 5-1-2000 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 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)(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(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)(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)(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.
343.31
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)(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. 5-1-2000 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 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)(e)
(e) 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.
Effective date note
NOTE: Par. (e) is renumbered to (2r) and amended eff. 5-1-2000 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.
343.31(1)(f)
(f) Operating a motor vehicle while operating privileges are suspended or revoked if the suspension or revocation was for improperly refusing to take a test under
s. 343.305, violating
s. 346.63 (1) or
(5) or a local ordinance in conformity therewith, or violating
s. 346.63 (2) or
(6),
940.09 (1) or
940.25.
343.31(1)(g)
(g) Operating a motor vehicle without having furnished proof of financial responsibility when proof of financial responsibility is required.
