LRBs0131/1
RPN:kg:jf
1999 - 2000 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 2,
TO 1999 ASSEMBLY BILL 238
September 29, 1999 - Offered by Representatives Huber, Stone, Black, Young and
Johnsrud.
AB238-ASA2,1,9
1An Act to amend 85.53 (1) (d), 342.12 (4) (a), 343.16 (5) (a), 343.30 (1g), 343.30
2(1q) (a), 343.303, 343.305 (3) (a), 343.305 (3) (b), 343.305 (5) (b), 343.305 (9) (a)
31., 343.305 (9) (a) 5. a., 343.305 (9) (d), 343.31 (3) (g), 343.31 (3m) (a), 343.315
4(2) (a) 6., 343.44 (2g) (intro.), 343.44 (2p) (c), 345.24 (1), 345.60 (3), 346.635,
5346.65 (2g) (b), 346.65 (2g) (c), 346.65 (2i), 346.65 (6) (a) 1., 346.65 (6) (a) 2.,
6346.65 (6) (d), 346.655 (1), 949.03 (1) (b), 949.08 (2) (e) and 967.055 (2) (a); and
7to create 340.01 (19d), 343.31 (3) (k), 346.705 and 346.74 (6) of the statutes;
8relating to: the consumption of alcohol after a reportable traffic accident and
9providing a penalty.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB238-ASA2,2,3
185.53
(1) (d) "Operating while intoxicated" means a violation of s. 346.63 (1) or
2(2m) or a local ordinance in conformity therewith or of s. 346.63 (2) or (6),
346.705, 3940.09 (1) or 940.25.
AB238-ASA2,2,55
340.01
(19d) "Great bodily harm" has the meaning given in s. 939.22 (14).
AB238-ASA2,2,147
342.12
(4) (a) The district attorney shall notify the department when he or she
8files a criminal complaint against a person who has been arrested for violating s.
9346.63 (1) or (2),
346.705, 940.09 (1) or 940.25 and who has 2 or more prior
10convictions, suspensions or revocations, as counted under s. 343.307 (1). Except as
11provided under par. (c), the department may not issue a certificate of title
12transferring ownership of any motor vehicle owned by the person upon receipt of a
13notice under this subsection until the court assigned to hear the criminal complaint
14issues an order permitting the department to issue a certificate of title.
AB238-ASA2, s. 4
15Section
4. 343.16 (5) (a) of the statutes is amended to read:
AB238-ASA2,3,1216
343.16
(5) (a) The secretary may require any applicant for a license or any
17licensed operator to submit to a special examination by such persons or agencies as
18the secretary may direct to determine incompetency, physical or mental disability,
19disease or any other condition which might prevent such applicant or licensed person
20from exercising reasonable and ordinary control over a motor vehicle. When the
21department requires the applicant to submit to an examination, the applicant shall
22pay the cost thereof. If the department receives an application for a renewal or
23duplicate license after voluntary surrender under s. 343.265 or receives a report from
24a physician or optometrist under s. 146.82 (3), or if the department has a report of
252 or more arrests within a one-year period for any combination of violations of s.
1346.63 (1) or (5) or a local ordinance in conformity therewith or a law of a federally
2recognized American Indian tribe or band in this state in conformity with s. 346.63
3(1) or (5), or s. 346.63 (1m), 1985 stats., or s. 346.63 (2) or (6)
, 346.705 or 940.25, or
4s. 940.09 where the offense involved the use of a vehicle, the department shall
5determine, by interview or otherwise, whether the operator should submit to an
6examination under this section. The examination may consist of an assessment. If
7the examination indicates that education or treatment for a disability, disease or
8condition concerning the use of alcohol, a controlled substance or a controlled
9substance analog is appropriate, the department may order a driver safety plan in
10accordance with s. 343.30 (1q). If there is noncompliance with assessment or the
11driver safety plan, the department shall suspend the person's operating privilege in
12the manner specified in s. 343.30 (1q) (d).
AB238-ASA2,3,2314
343.30
(1g) A court may revoke a person's operating privilege upon the person's
15conviction for violating s. 343.44 (1) or a local ordinance in conformity therewith by
16operating a motor vehicle while operating privileges are suspended or revoked. A
17court shall revoke a person's operating privilege upon the person's conviction for
18violating s. 343.44 (1) or a local ordinance in conformity therewith by operating a
19motor vehicle while operating privileges are suspended or revoked if the suspension
20or revocation was for improperly refusing to take a test under s. 343.305, violating
21s. 346.63 (1) or (5) or a local ordinance in conformity therewith, or violating s. 346.63
22(2) or (6),
346.705, 940.09 (1) or 940.25. The revocation shall be for any period not
23exceeding 6 months.
AB238-ASA2, s. 6
24Section
6. 343.30 (1q) (a) of the statutes is amended to read:
AB238-ASA2,4,6
1343.30
(1q) (a) If a person is convicted under s. 346.63 (1) or a local ordinance
2in conformity therewith, the court shall proceed under this subsection. If a person
3is convicted under s. 346.63 (2)
, 346.705 or 940.25, or s. 940.09 where the offense
4involved the use of a vehicle, the court shall proceed under pars. (c) and (d). If a
5person is referred by the department acting under s. 343.16 (5) (a), the department
6shall proceed under pars. (c) and (d) without the order of the court.
AB238-ASA2,5,4
8343.303 Preliminary breath screening test. If a law enforcement officer
9has probable cause to believe that the person is violating or has violated s. 346.63 (1)
10or (2m) or a local ordinance in conformity therewith, or s. 346.63 (2) or (6)
, 346.705 11or 940.25 or s. 940.09 where the offense involved the use of a vehicle, or if the officer
12detects any presence of alcohol, a controlled substance, controlled substance analog
13or other drug, or a combination thereof, on a person driving or operating or on duty
14time with respect to a commercial motor vehicle or has reason to believe that the
15person is violating or has violated s. 346.63 (7) or a local ordinance in conformity
16therewith, the officer, prior to an arrest, may request the person to provide a sample
17of his or her breath for a preliminary breath screening test using a device approved
18by the department for this purpose. The result of this preliminary breath screening
19test may be used by the law enforcement officer for the purpose of deciding whether
20or not the person shall be arrested for a violation of s. 346.63 (1), (2m), (5) or (7) or
21a local ordinance in conformity therewith, or s. 346.63 (2) or (6),
346.705, 940.09 (1)
22or 940.25 and whether or not to require or request chemical tests as authorized under
23s. 343.305 (3). The result of the preliminary breath screening test shall not be
24admissible in any action or proceeding except to show probable cause for an arrest,
25if the arrest is challenged, or to prove that a chemical test was properly required or
1requested of a person under s. 343.305 (3). Following the screening test, additional
2tests may be required or requested of the driver under s. 343.305 (3). The general
3penalty provision under s. 939.61 (1) does not apply to a refusal to take a preliminary
4breath screening test.
AB238-ASA2, s. 8
5Section
8. 343.305 (3) (a) of the statutes is amended to read:
AB238-ASA2,5,126
343.305
(3) (a) Upon arrest of a person for violation of s. 346.63 (1), (2m) or (5)
7or a local ordinance in conformity therewith, or for a violation of s. 346.63 (2) or (6)
,
8346.705 or 940.25, or s. 940.09 where the offense involved the use of a vehicle, a law
9enforcement officer may request the person to provide one or more samples of his or
10her breath, blood or urine for the purpose specified under sub. (2). Compliance with
11a request for one type of sample does not bar a subsequent request for a different type
12of sample.
AB238-ASA2, s. 9
13Section
9. 343.305 (3) (b) of the statutes is amended to read:
AB238-ASA2,5,2314
343.305
(3) (b) A person who is unconscious or otherwise not capable of
15withdrawing consent is presumed not to have withdrawn consent under this
16subsection, and if a law enforcement officer has probable cause to believe that the
17person has violated s. 346.63 (1), (2m) or (5) or a local ordinance in conformity
18therewith, or s. 346.63 (2) or (6)
, 346.705 or 940.25, or s. 940.09 where the offense
19involved the use of a vehicle, or detects any presence of alcohol, controlled substance,
20controlled substance analog or other drug, or a combination thereof, on a person
21driving or operating or on duty time with respect to a commercial motor vehicle or
22has reason to believe the person has violated s. 346.63 (7), one or more samples
23specified in par. (a) or (am) may be administered to the person.
AB238-ASA2,6,8
1343.305
(5) (b) Blood may be withdrawn from the person arrested for violation
2of s. 346.63 (1), (2), (2m), (5) or (6)
, 346.705 or 940.25, or s. 940.09 where the offense
3involved the use of a vehicle, or a local ordinance in conformity with s. 346.63 (1), (2m)
4or (5), or as provided in sub. (3) (am) or (b) to determine the presence or quantity of
5alcohol, a controlled substance, a controlled substance analog or any other drug, or
6any combination of alcohol, controlled substance, controlled substance analog and
7any other drug in the blood only by a physician, registered nurse, medical
8technologist, physician assistant or person acting under the direction of a physician.
AB238-ASA2, s. 11
9Section
11. 343.305 (9) (a) 1. of the statutes is amended to read:
AB238-ASA2,6,1210
343.305
(9) (a) 1. That prior to a request under sub. (3) (a), the officer had placed
11the person under arrest for a violation of s. 346.63 (1), (2m) or (5) or a local ordinance
12in conformity therewith or s. 346.63 (2) or (6),
346.705, 940.09 (1) or 940.25.
AB238-ASA2, s. 12
13Section
12. 343.305 (9) (a) 5. a. of the statutes is amended to read:
AB238-ASA2,6,2414
343.305
(9) (a) 5. a. Whether the officer had probable cause to believe the
15person was driving or operating a motor vehicle while under the influence of alcohol,
16a controlled substance or a controlled substance analog or any combination of
17alcohol, a controlled substance and a controlled substance analog, under the
18influence of any other drug to a degree which renders the person incapable of safely
19driving, or under the combined influence of alcohol and any other drug to a degree
20which renders the person incapable of safely driving or having a prohibited alcohol
21concentration or, if the person was driving or operating a commercial motor vehicle,
22an alcohol concentration of 0.04 or more and whether the person was lawfully placed
23under arrest for violation of s. 346.63 (1), (2m) or (5) or a local ordinance in conformity
24therewith or s. 346.63 (2) or (6),
346.705, 940.09 (1) or 940.25.
AB238-ASA2,7,8
1343.305
(9) (d) At the close of the hearing, or within 5 days thereafter, the court
2shall determine the issues under par. (a) 5. or (am) 5. If all issues are determined
3adversely to the person, the court shall proceed under sub. (10). If one or more of the
4issues is determined favorably to the person, the court shall order that no action be
5taken on the operating privilege on account of the person's refusal to take the test in
6question. This section does not preclude the prosecution of the person for violation
7of s. 346.63 (1), (2m), (5) or (7) or a local ordinance in conformity therewith, or s.
8346.63 (2) or (6),
346.705, 940.09 (1) or 940.25.
AB238-ASA2,7,1510
343.31
(3) (g) Any person convicted for operating a motor vehicle while
11operating privileges are suspended or revoked shall have his or her operating
12privilege revoked for 6 months if the suspension or revocation was for improperly
13refusing to take a test under s. 343.305, violating s. 346.63 (1) or (5) or a local
14ordinance in conformity therewith, or violating s. 346.63 (2) or (6),
346.705, 940.09
15(1) or 940.25.
AB238-ASA2,7,2517
343.31
(3) (k) Any person convicted under s. 346.705 shall have his or her
18operating privilege revoked for not less than one year nor more than 2 years. If a
19person is convicted under s. 346.705 where the accident involved great bodily harm
20to another person, the period of revocation is 2 years. If a person is convicted under
21s. 346.705 where the accident involved death, the period of revocation is 5 years. If
22there was a minor passenger under 16 years of age or an unborn child, as defined in
23s. 939.75 (1), in the motor vehicle at the time of the violation that gave rise to the
24conviction under s. 346.705, the minimum and maximum revocation periods are
25doubled.
AB238-ASA2,8,42
343.31
(3m) (a) Any person who has his or her operating privilege revoked
3under sub. (3) (c)
or, (f)
or (k) is eligible for an occupational license under s. 343.10
4after the first 120 days of the revocation period.
AB238-ASA2, s. 17
5Section
17. 343.315 (2) (a) 6. of the statutes is amended to read:
AB238-ASA2,8,156
343.315
(2) (a) 6. Section 346.63 (2) or (6),
346.705, 940.09 (1) or 940.25 or a law
7of a federally recognized American Indian tribe or band in this state in conformity
8with s. 346.63 (2) or (6),
346.705, 940.09 (1) or 940.25, or the law of another
9jurisdiction prohibiting causing or inflicting injury, great bodily harm or death
10through use of a motor vehicle while intoxicated or under the influence of alcohol, a
11controlled substance, a controlled substance analog or a combination thereof, or with
12an alcohol concentration of 0.04 or more or with an excess or specified range of alcohol
13concentration, or under the influence of any drug to a degree that renders the person
14incapable of safely driving, as those or substantially similar terms are used in that
15jurisdiction's laws.
AB238-ASA2, s. 18
16Section
18. 343.44 (2g) (intro.) of the statutes is amended to read:
AB238-ASA2,8,2117
343.44
(2g) (intro.) Except as provided in sub. (2m), any person who violates
18sub. (1) while his or her operating privilege is suspended or revoked for improperly
19refusing to take a test under s. 343.305, violating s. 346.63 (1) or (5) or a local
20ordinance in conformity therewith, or violating s. 346.63 (2) or (6),
346.705, 940.09
21(1) or 940.25, is subject to the following penalties:
AB238-ASA2,8,2323
343.44
(2p) (c) Violating s. 346.63 (2) or (6),
346.705, 940.09 (1) or 940.25.
AB238-ASA2,9,7
1345.24
(1) A person arrested under s. 346.63 (1) or (5) or an ordinance in
2conformity therewith or s. 346.63 (2) or (6)
, 346.705 or 940.25, or s. 940.09 where the
3offense involved the use of a vehicle, may not be released until 12 hours have elapsed
4from the time of his or her arrest or unless a chemical test administered under s.
5343.305 shows that the person has an alcohol concentration of less than 0.04, but the
6person may be released to his or her attorney, spouse, relative or other responsible
7adult at any time after arrest.
AB238-ASA2,9,139
345.60
(3) In addition to other penalties provided by law for violation of s.
10346.63 (1) or a local ordinance in conformity therewith, or s. 346.63 (2)
, 346.705 or
11940.25, or s. 940.09 where the offense involved the use of a vehicle, the convicted
12person may be required under s. 343.30 (1q) to attend, for a certain number of school
13days, a school under sub. (1).
AB238-ASA2,9,20
15346.635 Report arrest or out-of-service order to department. 16Whenever a law enforcement officer arrests a person for a violation of s. 346.63 (1),
17(5) or (7), or a local ordinance in conformity therewith, or s. 346.63 (2) or (6)
, 346.705 18or 940.25, or s. 940.09 where the offense involved the use of a vehicle, the officer shall
19notify the department of the arrest and of issuance of an out-of-service order under
20s. 343.305 (7) (b) or (9) (am) as soon as practicable.
AB238-ASA2,9,2522
346.65
(2g) (b) The court may require a person ordered to perform community
23service work under par. (a), or under s. 973.05 (3) (a) if that person's fine resulted from
24violating s. 346.63 (2),
346.705, 940.09 (1) or 940.25, to participate in community
25service work that demonstrates the adverse effects of substance abuse or of operating
1a vehicle while under the influence of an intoxicant or other drug, including working
2at an alcoholism treatment facility approved under s. 51.45, an emergency room of
3a general hospital or a driver awareness program under s. 346.637. The court may
4order the person to pay a reasonable fee, based on the person's ability to pay, to offset
5the cost of establishing, maintaining and monitoring the community service work
6ordered under this paragraph. If the opportunities available to perform community
7service work are fewer in number than the number of defendants eligible under this
8subsection, the court shall, when making an order under this paragraph, give
9preference to defendants who were under 21 years of age at the time of the offense.
10All provisions of par. (a) apply to any community service work ordered under this
11paragraph.
AB238-ASA2,10,2313
346.65
(2g) (c) If there was a minor passenger under 16 years of age in the
14motor vehicle or commercial motor vehicle at the time of the violation that gave rise
15to the conviction, the court may require a person ordered to perform community
16service work under par. (a), or under s. 973.05 (3) (a) if that person's fine resulted from
17violating s. 346.63 (2), (5) (a) or (6) (a),
346.705, 940.09 (1) or 940.25, to participate
18in community service work that benefits children or that demonstrates the adverse
19effects on children of substance abuse or of operating a vehicle while under the
20influence of an intoxicant or other drug. The court may order the person to pay a
21reasonable fee, based on the person's ability to pay, to offset the cost of establishing,
22maintaining and monitoring the community service work ordered under this
23paragraph.
AB238-ASA2,11,25
1346.65
(2i) In addition to the authority of the court under sub. (2g) and s. 973.05
2(3) (a), the court may order a defendant subject to sub. (2), or a defendant subject to
3s. 973.05 (3) (a) who violated s. 346.63 (2),
346.705, 940.09 (1) or 940.25, to visit a site
4that demonstrates the adverse effects of substance abuse or of operating a vehicle
5while under the influence of an intoxicant or other drug, including an alcoholism
6treatment facility approved under s. 51.45 or an emergency room of a general
7hospital in lieu of part or all of any forfeiture imposed or in addition to any penalty
8imposed. The court may order the defendant to pay a reasonable fee, based on the
9person's ability to pay, to offset the costs of establishing, maintaining and monitoring
10the visits ordered under this subsection. The court may order a visit to the site only
11if agreed to by the person responsible for the site. If the opportunities available to
12visit sites under this subsection are fewer than the number of defendants eligible for
13a visit, the court shall, when making an order under this subsection, give preference
14to defendants who were under 21 years of age at the time of the offense. The court
15shall ensure that the visit is monitored. A visit to a site may be ordered for a specific
16time and a specific day to allow the defendant to observe victims of vehicle accidents
17involving intoxicated drivers. If it appears to the court that the defendant has not
18complied with the court order to visit a site or to pay a reasonable fee, the court may
19order the defendant to show cause why he or she should not be held in contempt of
20court. Any organization or agency acting in good faith to which a defendant is
21assigned pursuant to an order under this subsection has immunity from any civil
22liability in excess of $25,000 for acts or omissions by or impacting on the defendant.
23The issuance or possibility of the issuance of an order under this subsection does not
24entitle an indigent defendant who is subject to sub. (2) (a) to representation by
25counsel under ch. 977.
AB238-ASA2,12,132
346.65
(6) (a) 1. Except as provided in this paragraph, the court may order a
3law enforcement officer to seize a motor vehicle, or, if the motor vehicle is not ordered
4seized, shall order a law enforcement officer to equip the motor vehicle with an
5ignition interlock device or immobilize any motor vehicle owned by the person whose
6operating privilege is revoked under s. 343.305 (10) or who committed a violation of
7s. 346.63 (1) (a), (b) or (2) (a) 1. or 2.,
346.705, 940.09 (1) (a), (b), (c) or (d) or 940.25
8(1) (a), (b), (c) or (d) if the person whose operating privilege is revoked under s.
9343.305 (10) or who is convicted of the violation has 2 prior suspensions, revocations
10or convictions that would be counted under s. 343.307 (1). The court shall not order
11a motor vehicle equipped with an ignition interlock device or immobilized if that
12would result in undue hardship or extreme inconvenience or would endanger the
13health and safety of a person.
AB238-ASA2, s. 27
14Section
27. 346.65 (6) (a) 2. of the statutes is amended to read:
AB238-ASA2,12,2115
346.65
(6) (a) 2. The court shall order a law enforcement officer to seize a motor
16vehicle owned by a person whose operating privilege is revoked under s. 343.305 (10)
17or who commits a violation of s. 346.63 (1) (a) or (b) or (2) (a) 1. or 2.,
346.705, 940.09
18(1) (a), (b), (c) or (d) or 940.25 (1) (a), (b), (c) or (d) if the person whose operating
19privilege is revoked under s. 343.305 (10) or who is convicted of the violation has 3
20or more prior suspensions, revocations or convictions that would be counted under
21s. 343.307 (1).