SB94: Bill Text

LRB-2117/1

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1999 - 2000 LEGISLATURE

1999 Senate BILL 94

March 23, 1999 - Introduced by Senators Drzewiecki, Darling, Huelsman, Rude, Roessler and Farrow, cosponsored by Representatives Johnsrud, Huebsch, M. Lehman, Black, Klusman, Staskunas, Ladwig, Petrowski, Ryba, Brandemuehl and Hutchison. Referred to Committee on Judiciary and Consumer Affairs.

SB94,1,10 An Act to amend 85.53 (1) (d), 342.12 (4) (a), 343.16 (5) (a), 343.30 (1g), 343.30 (1q) (a), 343.303, 343.305 (3) (a), 343.305 (3) (b), 343.305 (5) (b), 343.305 (9) (a) 1., 343.305 (9) (a) 5. a., 343.305 (9) (d), 343.307 (1) (c), 343.307 (2) (c), 343.31 (1) (f), 343.31 (3) (c), 343.31 (3) (e), 343.31 (3) (f), 343.31 (3) (g), 343.315 (2) (a) 6., 343.44 (2g) (intro.), 343.44 (2p) (c), 345.24 (1), 345.60 (3), 346.63 (4), 346.635, 346.65 (2g) (b), 346.65 (2g) (c), 346.65 (2i), 346.65 (6) (a) 1., 346.65 (6) (a) 2., 346.65 (6) (d), 346.655 (1), 949.03 (1) (b), 949.08 (2) (e), 967.055 (2) (a) and 967.055 (3) (b); and to create 340.01 (19d), 343.31 (1) (ag), 346.63 (1m) and 346.65 (3g) of the statutes; relating to: causing injury, death or property damage while under the influence of alcohol and providing a penalty.

Analysis by the Legislative Reference Bureau

In addition to the absolute sobriety offense applicable to young drivers and the lower blood alcohol concentration limit applicable to commercial motor vehicle drivers, there are currently four kinds of offenses related to operating a motor vehicle or commercial motor vehicle while under the influence of an intoxicant (OWI): 1) regular OWI; 2) OWI causing injury; 3) OWI causing great bodily harm; and 4) OWI causing death. A person commits an OWI offense when the person operates a motor vehicle while having a prohibited alcohol concentration in his or her blood or while under the influence of an intoxicant, a controlled substance, a controlled substance analog, any other drug or of a combination of any of those, to a degree which renders him or her incapable of safely driving. The penalties for these offenses increase with the severity of the offense and with the number of previous OWI offenses the person has committed within certain time frames. In addition to these offenses, a person is subject to the loss of his or her operating privilege (driver's license) if he or she refuses to take a test to determine his or her blood alcohol concentration.

This bill creates an additional OWI offense for having a prohibited alcohol concentration within two hours after the operation of a motor vehicle that resulted in injury, great bodily harm or death to another person or damage to property. The penalties for this offense are identical to the penalties for other OWI offenses involving injury, great bodily harm or death, whichever is appropriate.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB94, s. 1 Section 1. 85.53 (1) (d) of the statutes is amended to read:

SB94,2,4 85.53 (1) (d) "Operating while intoxicated" means a violation of s. 346.63 (1) or (2m) or a local ordinance in conformity therewith or of s. 346.63 (1m), (2) or (6), 940.09 (1) or 940.25.

SB94, s. 2 Section 2. 340.01 (19d) of the statutes is created to read:

SB94,2,6 340.01 (19d) "Great bodily harm" has the meaning given in s. 939.22 (14).

SB94, s. 3 Section 3. 342.12 (4) (a) of the statutes is amended to read:

SB94,3,2 342.12 (4) (a) The district attorney shall notify the department when he or she files a criminal complaint against a person who has been arrested for violating s. 346.63 (1), (1m) or (2), 940.09 (1) or 940.25 and who has 2 or more prior convictions, suspensions or revocations, as counted under s. 343.307 (1). Except as provided under par. (c), the department may not issue a certificate of title transferring ownership of any motor vehicle owned by the person upon receipt of a notice under this subsection until the court assigned to hear the criminal complaint issues an order permitting the department to issue a certificate of title.

SB94, s. 4 Section 4. 343.16 (5) (a) of the statutes is amended to read:

SB94,3,25 343.16 (5) (a) The secretary may require any applicant for a license or any licensed operator to submit to a special examination by such persons or agencies as the secretary may direct to determine incompetency, physical or mental disability, disease or any other condition which might prevent such applicant or licensed person from exercising reasonable and ordinary control over a motor vehicle. When the department requires the applicant to submit to an examination, the applicant shall pay the cost thereof. If the department receives an application for a renewal or duplicate license after voluntary surrender under s. 343.265 or receives a report from a physician or optometrist under s. 146.82 (3), or if the department has a report of 2 or more arrests within a one-year period for any combination of violations of s. 346.63 (1) or (5) 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. 346.63 (1), (1m) or (5), or s. 346.63 (1m), 1985 stats., or s. 346.63 (2) or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, the department shall determine, by interview or otherwise, whether the operator should submit to an examination under this section. The examination may consist of an assessment. If the examination indicates that education or treatment for a disability, disease or condition concerning the use of alcohol, a controlled substance or a controlled substance analog is appropriate, the department may order a driver safety plan in accordance with s. 343.30 (1q). If there is noncompliance with assessment or the driver safety plan, the department shall suspend the person's operating privilege in the manner specified in s. 343.30 (1q) (d).

SB94, s. 5 Section 5. 343.30 (1g) of the statutes is amended to read:

SB94,4,11 343.30 (1g) A court may revoke a person's operating privilege upon the person's conviction for violating s. 343.44 (1) or a local ordinance in conformity therewith by operating a motor vehicle while operating privileges are suspended or revoked. A court shall revoke a person's operating privilege upon the person's conviction for violating s. 343.44 (1) or a local ordinance in conformity therewith by 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 (1m), (2) or (6), 940.09 (1) or 940.25. The revocation shall be for any period not exceeding 6 months.

SB94, s. 6 Section 6. 343.30 (1q) (a) of the statutes is amended to read:

SB94,4,18 343.30 (1q) (a) If a person is convicted under s. 346.63 (1) or a local ordinance in conformity therewith, the court shall proceed under this subsection. If a person is convicted under s. 346.63 (1m) or (2) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, the court shall proceed under pars. (c) and (d). If a person is referred by the department acting under s. 343.16 (5) (a), the department shall proceed under pars. (c) and (d) without the order of the court.

SB94, s. 7 Section 7. 343.303 of the statutes is amended to read:

SB94,5,16 343.303 Preliminary breath screening test. If a law enforcement officer has probable cause to believe that the person is violating or has violated s. 346.63 (1) or (2m) or a local ordinance in conformity therewith, or s. 346.63 (1m), (2) or (6) or 940.25 or s. 940.09 where the offense involved the use of a vehicle, or if the officer detects any presence of alcohol, a controlled substance, controlled substance analog or other drug, or a combination thereof, on a person driving or operating or on duty time with respect to a commercial motor vehicle or has reason to believe that the person is violating or has violated s. 346.63 (7) or a local ordinance in conformity therewith, the officer, prior to an arrest, may request the person to provide a sample of his or her breath for a preliminary breath screening test using a device approved by the department for this purpose. The result of this preliminary breath screening test may be used by the law enforcement officer for the purpose of deciding whether or not the person shall be arrested for a violation of s. 346.63 (1), (2m), (5) or (7) or a local ordinance in conformity therewith, or s. 346.63 (1m), (2) or (6), 940.09 (1) or 940.25 and whether or not to require or request chemical tests as authorized under s. 343.305 (3). The result of the preliminary breath screening test shall not be admissible in any action or proceeding except to show probable cause for an arrest, if the arrest is challenged, or to prove that a chemical test was properly required or requested of a person under s. 343.305 (3). Following the screening test, additional tests may be required or requested of the driver under s. 343.305 (3). The general penalty provision under s. 939.61 (1) does not apply to a refusal to take a preliminary breath screening test.

SB94, s. 8 Section 8. 343.305 (3) (a) of the statutes is amended to read:

SB94,5,24 343.305 (3) (a) Upon arrest of a person for violation of s. 346.63 (1), (2m) or (5) or a local ordinance in conformity therewith, or for a violation of s. 346.63 (1m), (2) or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, a law enforcement officer may request the person to provide one or more samples of his or her breath, blood or urine for the purpose specified under sub. (2). Compliance with a request for one type of sample does not bar a subsequent request for a different type of sample.

SB94, s. 9 Section 9. 343.305 (3) (b) of the statutes is amended to read:

SB94,6,10 343.305 (3) (b) A person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent under this subsection, and if a law enforcement officer has probable cause to believe that the person has violated s. 346.63 (1), (2m) or (5) or a local ordinance in conformity therewith, or s. 346.63 (1m), (2) or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, or detects any presence of alcohol, controlled substance, controlled substance analog or other drug, or a combination thereof, on a person driving or operating or on duty time with respect to a commercial motor vehicle or has reason to believe the person has violated s. 346.63 (7), one or more samples specified in par. (a) or (am) may be administered to the person.

SB94, s. 10 Section 10. 343.305 (5) (b) of the statutes is amended to read:

SB94,6,19 343.305 (5) (b) Blood may be withdrawn from the person arrested for violation of s. 346.63 (1), (1m), (2), (2m), (5) or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, or a local ordinance in conformity with s. 346.63 (1), (2m) or (5), or as provided in sub. (3) (am) or (b) to determine the presence or quantity of alcohol, a controlled substance, a controlled substance analog or any other drug, or any combination of alcohol, controlled substance, controlled substance analog and any other drug in the blood only by a physician, registered nurse, medical technologist, physician assistant or person acting under the direction of a physician.

SB94, s. 11 Section 11. 343.305 (9) (a) 1. of the statutes is amended to read:

SB94,6,23 343.305 (9) (a) 1. That prior to a request under sub. (3) (a), the officer had placed the person under arrest for a violation of s. 346.63 (1), (2m) or (5) or a local ordinance in conformity therewith or s. 346.63 (1m), (2) or (6), 940.09 (1) or 940.25.

SB94, s. 12 Section 12. 343.305 (9) (a) 5. a. of the statutes is amended to read:

SB94,7,11 343.305 (9) (a) 5. a. Whether the officer had probable cause to believe the person was driving or operating a motor vehicle while under the influence of alcohol, a controlled substance or a controlled substance analog or any combination of alcohol, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders the person incapable of safely driving, or under the combined influence of alcohol and any other drug to a degree which renders the person incapable of safely driving or having a prohibited alcohol concentration or, if the person was driving or operating a commercial motor vehicle, an alcohol concentration of 0.04 or more and whether the person was lawfully placed under arrest for violation of s. 346.63 (1), (2m) or (5) or a local ordinance in conformity therewith or s. 346.63 (1m), (2) or (6), 940.09 (1) or 940.25.

SB94, s. 13 Section 13. 343.305 (9) (d) of the statutes is amended to read:

SB94,7,20 343.305 (9) (d) At the close of the hearing, or within 5 days thereafter, the court shall determine the issues under par. (a) 5. or (am) 5. If all issues are determined adversely to the person, the court shall proceed under sub. (10). If one or more of the issues is determined favorably to the person, 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 section does not preclude the prosecution of the person for violation of s. 346.63 (1), (2m), (5) or (7) or a local ordinance in conformity therewith, or s. 346.63 (1m), (2) or (6), 940.09 (1) or 940.25.

SB94, s. 14 Section 14. 343.307 (1) (c) of the statutes is amended to read:

SB94,7,23 343.307 (1) (c) Convictions for violations under s. 346.63 (1m) or (2) or 940.25, or s. 940.09 where the offense involved the use of a vehicle.

SB94, s. 15 Section 15. 343.307 (2) (c) of the statutes is amended to read:

SB94,7,25 343.307 (2) (c) Convictions for violations under s. 346.63 (1m), (2) or (6).

SB94, s. 16 Section 16. 343.31 (1) (ag) of the statutes is created to read:

SB94,8,5 343.31 (1) (ag) Having a prohibited alcohol concentration within 2 hours after the operation of a motor vehicle that resulted in the injury or great bodily harm to, or death of, another person or damage to property and which is criminal under s. 346.63 (1m).

SB94, s. 17 Section 17. 343.31 (1) (f) of the statutes is amended to read:

SB94,8,10 343.31 (1) (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 (1m), (2) or (6), 940.09 (1) or 940.25.

SB94, s. 18 Section 18. 343.31 (3) (c) of the statutes is amended to read:

SB94,8,22 343.31 (3) (c) Any person convicted under s. 346.63 (1m), when the operation of the motor vehicle resulted in the death of another person, or under s. 940.09 of causing the death of another or of an unborn child by the operation or handling of a motor vehicle (1) shall have his or her operating privilege revoked for 5 years. If there was a minor passenger under 16 years of age or an unborn child, as defined in s. 939.75 (1), in the motor vehicle at the time of the violation that gave rise to the conviction under s. 940.09, the revocation period is 10 years. If there was a minor passenger under 16 years of age or an unborn child, as defined in s. 939.75 (1), in the motor vehicle at the time of the operation of the motor vehicle that gave rise to the conviction under s. 346.63 (1m), and that operation of the motor vehicle resulted in the death of another person, the revocation period is 10 years.

SB94, s. 19 Section 19. 343.31 (3) (e) of the statutes is amended to read:

SB94,9,9 343.31 (3) (e) Any person convicted under s. 346.63 (1m), when the operation of the motor vehicle resulted in injury to another person or damage to property, or under s. 346.63 (2) shall have his or her operating privilege revoked for not less than one year nor more than 2 years. 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), the minimum and maximum revocation periods are doubled. If there was a minor passenger under 16 years of age in the motor vehicle that was operated by the person who had a prohibited alcohol concentration within 2 hours after that operation of the motor vehicle, and that operation resulted in the injury to another person or damage to property, the minimum and maximum revocation periods are doubled.

SB94, s. 20 Section 20. 343.31 (3) (f) of the statutes is amended to read:

SB94,9,20 343.31 (3) (f) Any person convicted under s. 346.63 (1m), when the operation of the motor vehicle resulted in great bodily harm to another person, or under s. 940.25 shall have his or her operating privilege revoked for 2 years. If there was a minor passenger under 16 years of age or an unborn child, as defined in s. 939.75 (1), in the motor vehicle at the time of the violation that gave rise to the conviction under s. 940.25, the revocation period is 4 years. If there was a minor passenger under 16 years of age or an unborn child, as defined in s. 939.75 (1), in the motor vehicle at the time of the operation of the motor vehicle that gave rise to the conviction under s. 346.63 (1m), and that operation of the motor vehicle resulted in great bodily harm to another person, the revocation period is 10 years.

SB94, s. 21 Section 21. 343.31 (3) (g) of the statutes is amended to read:

SB94,9,25 343.31 (3) (g) Any person convicted for operating a motor vehicle while operating privileges are suspended or revoked shall have his or her operating privilege revoked for 6 months 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 (1m), (2) or (6), 940.09 (1) or 940.25.

SB94, s. 22 Section 22. 343.315 (2) (a) 6. of the statutes is amended to read:

SB94,10,13 343.315 (2) (a) 6. Section 346.63 (1m), (2) or (6), 940.09 (1) or 940.25 or a law of a federally recognized American Indian tribe or band in this state in conformity with s. 346.63 (1m), (2) or (6), 940.09 (1) or 940.25, or the law of another jurisdiction prohibiting causing or inflicting injury, great bodily harm or death through use of a motor vehicle while intoxicated or under the influence of alcohol, a controlled substance, a controlled substance analog or a combination thereof, or with an alcohol concentration of 0.04 or more 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.

SB94, s. 23 Section 23. 343.44 (2g) (intro.) of the statutes is amended to read:

SB94,10,19 343.44 (2g) (intro.) Except as provided in sub. (2m), any person who violates sub. (1) while his or her operating privilege is suspended or revoked 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 (1m), (2) or (6), 940.09 (1) or 940.25, is subject to the following penalties:

SB94, s. 24 Section 24. 343.44 (2p) (c) of the statutes is amended to read:

SB94,10,21 343.44 (2p) (c) Violating s. 346.63 (1m), (2) or (6), 940.09 (1) or 940.25.

SB94, s. 25 Section 25. 345.24 (1) of the statutes is amended to read:

SB94,11,4 345.24 (1) A person arrested under s. 346.63 (1) or (5) or an ordinance in conformity therewith or s. 346.63 (1m), (2) or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, may not be released until 12 hours have elapsed from the time of his or her arrest or unless a chemical test administered under s. 343.305 shows that the person has an alcohol concentration of less than 0.04, but the person may be released to his or her attorney, spouse, relative or other responsible adult at any time after arrest.

SB94, s. 26 Section 26. 345.60 (3) of the statutes is amended to read:

SB94,11,10 345.60 (3) In addition to other penalties provided by law for violation of s. 346.63 (1) or a local ordinance in conformity therewith, or s. 346.63 (1m) or (2) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, the convicted person may be required under s. 343.30 (1q) to attend, for a certain number of school days, a school under sub. (1).

SB94, s. 27 Section 27. 346.63 (1m) of the statutes is created to read:

SB94,11,14 346.63 (1m) No person may have a prohibited alcohol concentration within 2 hours after the operation of a motor vehicle that resulted in injury or great bodily harm to, or death of, another person or damage to property.

SB94, s. 28 Section 28. 346.63 (4) of the statutes is amended to read:

SB94,11,17 346.63 (4) If a person is convicted under sub. (1) or a local ordinance in conformity therewith, or sub. (1m) or (2), the court shall proceed under s. 343.30 (1q).

SB94, s. 29 Section 29. 346.635 of the statutes is amended to read:

SB94,11,24 346.635 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 (1m), (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.

SB94, s. 30 Section 30. 346.65 (2g) (b) of the statutes is amended to read:

SB94,12,15 346.65 (2g) (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 (1m) or (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.

SB94, s. 31 Section 31. 346.65 (2g) (c) of the statutes is amended to read: