SB335: Bill Text

SB335, s. 61 Section 61. Subchapter II of chapter 350 [precedes 350.50] of the statutes is created to read:

SB335,22,5 CHAPTER 350

SB335,22,9 Subchapter II Intoxicated operation of sport recreational vehicles and commercial motorboats

SB335,22,10 350.50 Definitions. In this subchapter:

SB335,22,11 (1) "Alcohol" has the meaning given in s. 340.01 (1q).

SB335,22,12 (2) "Alcohol concentration" has the meaning given in s. 340.01 (1v).

SB335,22,13 (3) "All-terrain vehicle" has the meaning given in s. 340.01 (2g).

SB335,22,14 (4) "All-terrain vehicle trail" has the meaning given in s. 23.33 (1) (d).

SB335,22,16 (5) "Approved public treatment facility" has the meaning given in s. 51.45 (2) (c).

SB335,22,19 (6) "Boat" means every description of watercraft used or capable of being used as a means of transportation on water, except a seaplane on the water and a fishing raft.

SB335,22,21 (7) "Bodily harm" means physical pain or injury, illness, or any impairment of physical condition.

SB335,22,24 (8) "Commercial motorboat" means a motorboat while it is being operated to transport property or passengers for hire or while it is being used by its operator or owner to earn a livelihood or to gain a profit or both.

SB335,22,25 (9) "Controlled substance" has the meaning given in s. 961.01 (4).

SB335,23,1 (10) "Controlled substance analog" has the meaning given in s. 961.01 (4m).

SB335,23,2 (11) "Department" means the department of natural resources.

SB335,23,3 (12) "Drug" has the meaning given in s. 450.01 (10).

SB335,23,4 (13) "Highway" has the meaning given in s. 340.01 (22).

SB335,23,5 (14) "Intoxicant" means any of the following:

SB335,23,7 (a) Alcohol, a controlled substance, a controlled substance analog, any other drug, or a vapor-releasing substance.

SB335,23,9 (b) Any combination of alcohol, a controlled substance, a controlled substance analog, any other drug, or a vapor-releasing substance.

SB335,23,12 (15) "Intoxicated operation of a commercial motorboat law" means, if the operation of a commercial motorboat is involved, s. 350.52 or a local ordinance in conformity with that section or s. 940.09 or 940.25.

SB335,23,15 (16) "Intoxicated operation of a sport recreational vehicle law" means, if the operation of a sport recreational vehicle is involved, s. 350.52 or a local ordinance in conformity with that section or s. 940.09 or 940.25.

SB335,23,16 (17) "Law enforcement officer" has the meaning given in s. 165.85 (2) (c).

SB335,23,19 (18) "Motorboat" means any boat equipped with propulsion machinery, whether or not the machinery is the principal source of propulsion, but does not include a commercial motorboat.

SB335,23,23 (19) "Operate" means to exercise physical control over the speed or direction of a sport recreational vehicle or commercial motorboat, or to physically manipulate or activate any of the controls of a sport recreational vehicle or commercial motorboat necessary to put it in motion.

SB335,24,3 (20) "Operation" means the exercise of physical control over the speed or direction of a sport recreational vehicle or commercial motorboat, or the physical manipulation or activation of any of the controls of a sport recreational vehicle or commercial motorboat necessary to put it in motion. "Operation," with respect to a motorboat, does not include a sailboat operating under sail alone.

SB335,24,7 (21) "Operator" means a person who operates a sport recreational vehicle or commercial motorboat, who is responsible for the operation of a sport recreational vehicle or commercial motorboat or who is supervising the operation of a sport recreational vehicle or commercial motorboat.

SB335,24,9 (22) (a) "Prohibited alcohol concentration" means, with respect to convictions under laws listed in par. (b), one of the following:

SB335,24,11 1. If the person has one or no prior convictions within 10 years prior to the arrest for the current violation, an alcohol concentration of 0.1 or more.

SB335,24,13 2. If the person has 2 prior convictions within 10 years prior to the arrest for the current violation, an alcohol concentration of 0.08 or more.

SB335,24,15 3. If the person has 3 or more prior convictions within 10 years prior to the arrest for the current violation, an alcohol concentration of more than 0.02.

SB335,24,21 (b) The laws covered under par. (a) are the intoxicated operation of an all-terrain vehicle law and refusal law, as defined in s. 23.33 (1) (ic) and (jm), 1999 stats.; the intoxicated boating law and refusal law, as defined in s. 30.50 (4m) and (9x), 1999 stats.; the intoxicated snowmobiling law and refusal law, as defined in s. 350.01 (9c) and (10r), 1999 stats.; the intoxicated operation of a sport recreational vehicle law; and the intoxicated operation of a commercial motorboat law.

SB335,24,24 (23) "Purpose of authorized analysis" means for the purpose of determining or obtaining evidence of the presence, quantity, or concentration of any intoxicant in a person's breath, blood, or urine.

SB335,25,2 (24) "Refusal law" means s. 350.58 (5) or a local ordinance in conformity with that subsection.

SB335,25,4 (25) "Sport recreational vehicle" means an all-terrain vehicle, a motorboat, or a snowmobile.

SB335,25,5 (26) "Snowmobile" has the meaning given in s. 340.01 (58a).

SB335,25,6 (27) "Snowmobile trail" has the meaning given in s. 350.01 (17).

SB335,25,8 (28) "Test facility" means a test facility or agency prepared to administer tests under s. 343.305 (2).

SB335,25,13 (29) "Under the influence of an intoxicant" means a condition in which a person's ability to operate a sport recreational vehicle or commercial motorboat, because of the consumption or use of an intoxicant, is impaired to the extent that the person is less able to exercise the clear judgment and steady hand necessary to handle and control a sport recreational vehicle or commercial motorboat.

SB335,25,14 (30) "Waters of this state" has the meaning given in s. 30.50 (14).

Note: This section restates definitions from ss. 23.33 (1), 30.50 and 350.01, stats. For purposes of consolidated treatment, the term "sport recreational vehicle" is created to mean an all-terrain vehicle, a motorboat or a snowmobile. The term does not include a commercial motorboat. See, also, with respect to the definition of the term "prohibited alcohol concentration", the note following s. 350.52.

Also, this section creates a definition for the term "under the influence of an intoxicant". The term is defined to mean a condition in which a person's ability to operate a sport recreational vehicle or commercial motorboat, because of the consumption or use of an intoxicant, is impaired to the extent that the person is less able to exercise the clear judgment and steady hand necessary to handle and control a sport recreational vehicle. This definition codifies language contained in Wisconsin criminal jury instructions, s. 2663, with respect to a person operating a motor vehicle while under the influence of an intoxicant. The new standard replaces the phrase "incapable of safe operation" that currently applies to all-terrain vehicles, motorboats and snowmobiles. In addition, the bill adds to the definition of the term "intoxicant" by including the term "a vapor-releasing substance".

SB335,26,2 350.52 Intoxicated operation of a sport recreational vehicle or commercial motorboat. (1) Operation. (a) Operating while under the influence of an intoxicant. No person may operate a sport recreational vehicle or commercial motorboat while under the influence of an intoxicant.

SB335,26,5 (b) Operating with alcohol concentrations at or above specified levels. 1. No person may operate a sport recreational vehicle while the person has a prohibited alcohol concentration.

SB335,26,7 2. No person may operate a commercial motorboat while the person has an alcohol concentration of 0.04 or more.

SB335,26,11 (c) Operating with alcohol concentrations at specified levels; under age 21. If a person has not attained the age of 21, the person may not operate a sport recreational vehicle or commercial motorboat while he or she has an alcohol concentration of more than 0.0 but not more than 0.1.

SB335,26,19 (d) Related charges. A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of par. (a) or (b) or both for acts arising out of the same incident or occurrence. If the person is charged with violating both pars. (a) and (b), the offenses shall be joined. If the person is found guilty of violating both pars. (a) and (b) 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 under s. 350.74 (1) (b) to (e). Paragraphs (a) and (b) each require proof of a fact for conviction which the other does not require.

SB335,26,23 (2) Causing bodily harm. (a) Causing bodily harm while under the influence of an intoxicant. No person while under the influence of an intoxicant may cause bodily harm to another person by the operation of a sport recreational vehicle or commercial motorboat.

SB335,27,3 (b) Causing bodily harm with alcohol concentrations at or above specified levels. 1. No person who has a prohibited alcohol concentration may cause bodily harm to another person by the operation of a sport recreational vehicle.

SB335,27,5 2. No person who has an alcohol concentration of 0.04 or more may cause bodily harm to another person by the operation of a commercial motorboat.

SB335,27,14 (c) Related charges. A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of par. (a) or (b) or both for acts arising out of the same incident or occurrence. If the person is charged with violating both pars. (a) and (b) in the complaint, the crimes shall be joined under s. 971.12. If the person is found guilty of violating both pars. (a) and (b) 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 under s. 350.74 (1) (b) to (e). Paragraphs (a) and (b) each require proof of a fact for conviction which the other does not require.

SB335,27,19 (d) Defenses. 1. Except as provided in subd. 2., in an action under this subsection, the defendant has a defense if he or she proves by a preponderance of the evidence that the bodily harm would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant or did not have a prohibited alcohol concentration.

SB335,27,24 2. In an action under this subsection for a violation of the intoxicated operation of a commercial motorboat law, the defendant has a defense if he or she proves by a preponderance of the evidence that the bodily harm would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant or did not have an alcohol concentration of 0.04 or more.

Note: This Section restates ss. 23.33 (4c), 30.681 and 350.101, stats., with the following exceptions:

1. Under current law, a person under the age of 19 may not operate an all-terrain vehicle or a snowmobile if the person has alcohol in his or her system. Also, under current law, a person under the age of 21 may not operate a motorboat if the person has alcohol in his or her system. This bill uniformly provides that persons under the age of 21 must maintain absolute sobriety when operating any type of sport recreational vehicle or commercial motorboat.

2. Current law generally provides that a person may not operate a sport recreational vehicle, or cause injury to another by operation of a sport recreational vehicle, when the person has an alcohol concentration of 0.1 or more. This bill makes use of the definition of the term "prohibited alcohol concentration" as used in the motor vehicle code. Thus, in general, no person may operate a sport recreational vehicle, or cause injury to another person by operation of a sport recreational vehicle, with alcohol concentrations listed below:

a. If the person has one or no prior convictions within 10 years prior to the arrest for the current violation, an alcohol concentration of 0.1 or more.

b. If the person has 2 prior convictions within 10 years prior to the arrest for the current violation, an alcohol concentration of 0.08 or more.

c. If the person has 3 or more prior convictions within 10 years prior to the arrest for the current violation, an alcohol concentration of more than 0.02.

3. Instead of using the term "injury", this bill refers to "bodily harm". The term "bodily harm" is defined in s. 350.50 (7) to mean physical pain or injury, illness or any impairment of physical condition. The definition is adopted from s. 939.22 (4), stats.

SB335,28,6 350.54 Preliminary breath screening test. (1) Requirement. A person shall provide a sample of his or her breath for a preliminary breath screening test if a law enforcement officer has reasonable suspicion that the person is violating or has violated the intoxicated operation of a sport recreational vehicle law or the intoxicated operation of a commercial motorboat law, and if, prior to an arrest, the law enforcement officer requested the person to provide this sample.

SB335,28,13 (2) Use of test results. A law enforcement officer may use the results of a preliminary breath screening test for the purpose of deciding whether or not to arrest a person for a violation of the intoxicated operation of a sport recreational vehicle law or the intoxicated operation of a commercial motorboat law, or for the purpose of deciding whether or not to request a chemical test under s. 350.60. Following the preliminary breath screening test, chemical tests may be required of the person under s. 350.60.

SB335,29,4 (3) Admissibility. The result of a preliminary breath screening test is not admissible in any action or proceeding except to show probable cause for an arrest, if the arrest is challenged, to show the presence of an intoxicant in a person, or to show that a chemical test was properly required of a person under s. 350.60.

SB335,29,6 (4) Refusal. There is no penalty for a violation of sub. (1). The general penalty provision under s. 939.61 does not apply to that violation.

Note: This section restates ss. 23.33 (4g), 30.682 and 350.102, stats., except that in sub. (1) a law enforcement officer may require a preliminary breath screening test if there is a reasonable suspicion, rather than probable cause to believe, that a violation has occurred. This change codifies the decision of the Wisconsin Supreme Court in County of Jefferson v. Renz, 231 Wis. 2d 293 (1999).

In addition, current law provides that a preliminary breath screening test is not 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. This Section provides that the result of the preliminary breath screening test also may be used as evidence of the presence of an intoxicant in a person.

SB335,29,10 350.56 Application of intoxicated operation of a sport recreational vehicle or commercial motorboat law. (1) Motorboats. The intoxicated operation of a sport recreational vehicle law is applicable to the operation of a motorboat upon the waters of this state.

SB335,29,13 (2) Commercial motorboats. The intoxicated operation of a commercial motorboat law is applicable to the operation of a commercial motorboat upon the waters of this state.

SB335,30,4 (3) All-terrain vehicles and snowmobiles. Except as provided in this subsection, the intoxicated operation of a sport recreational vehicle law is applicable to the operation of an all-terrain vehicle and a snowmobile upon frozen waters and upon all property, whether the property is publicly or privately owned and whether or not a fee is charged for the use of that property. The intoxicated operation of a sport recreational vehicle law does not apply to the operation of an all-terrain vehicle or a snowmobile on private land that is not designated as an all-terrain vehicle trail or a snowmobile trail unless an accident involving personal injury occurs as the result of the operation of the all-terrain vehicle or snowmobile or the all-terrain vehicle or snowmobile was operated on the private land without the consent of the owner of that land.

Note: Current law provides that the intoxicated operation of an all-terrain vehicle law is applicable upon all premises held out to the public for use of their all-terrain vehicles, whether the premises are publicly or privately owned and whether or not a fee is charged for use of the premises. The law also provides that the intoxicated snowmobiling law applies to all property, whether the property is publicly or privately owned and whether or not a fee is charged for the use of that property. However, the snowmobiling law does not apply to the operation of a snowmobile on private land not designated as a snowmobile trail unless an accident involving personal injury occurs and the snowmobile was operated on the private land without the owner's consent.

The bill makes the following changes:

1. The bill specifically incorporates the phrase "upon the waters of this state" from s. 30.683, stats., for the purpose of stating the place of application of the intoxicated operation of a sport recreational vehicle law to motorboats and the place of application of the intoxicated operation of a commercial motorboat law.

2. The provisions describing the applicability of the intoxicated operation of a sport recreational vehicle law are combined with respect to all-terrain vehicles and snowmobiles. The law will be applicable upon frozen waters and upon all property, whether the property is publicly or privately owned and whether or not a fee is charged for the use of that property. The factual question of whether property is held out to the public for use of an all-terrain vehicle is eliminated. The law will not apply to the operation of an all-terrain vehicle or a snowmobile on private land not designated as an all-terrain vehicle trail or as a snowmobile trail unless an accident involving personal injury occurs as the result of the operation of the all-terrain vehicle or snowmobile or the all-terrain vehicle or the snowmobile was operated on the private land without the consent of the owner of that land.

SB335,30,12 350.58 Implied consent. A person who engages in the operation of a sport recreational vehicle or commercial motorboat in or on those areas enumerated in s. 350.56 is considered to have given consent to provide one or more samples of his or her breath, blood, or urine for the purpose of authorized analysis as required under s. 350.60. A person who engages in the operation of a sport recreational vehicle or commercial motorboat within this state is considered to have given consent to submit to one or more chemical tests of his or her breath, blood, or urine for the purpose of authorized analysis as required under s. 350.60.

Note: This section restates ss. 23.33 (4L), 30.683 and 350.103, stats.

SB335,31,10 350.60 Chemical tests. (1) Requirement. (a) Samples; submission to tests. A person shall provide one or more samples of his or her breath, blood, or urine for the purpose of authorized analysis if he or she is arrested for a violation of the intoxicated operation of a sport recreational vehicle law or the intoxicated operation of a commercial motorboat law, and if he or she is requested to provide the sample by a law enforcement officer. A person shall submit to one or more chemical tests of his or her breath, blood, or urine for the purpose of authorized analysis if he or she is arrested for a violation of the intoxicated operation of a sport recreational vehicle law or the intoxicated operation of a commercial motorboat law, and if he or she is requested to submit to the test by a law enforcement officer.

SB335,31,14 (b) Information. 1. Except as provided in subd. 2., a law enforcement officer requesting a person to provide a sample or to submit to a chemical test under par. (a) shall inform the person of all of the following at the time of the request and prior to obtaining the sample or administering the test:

SB335,31,16 "a. You have either been arrested for an offense that involves driving or operating a sport recreational vehicle while under the influence of an intoxicant.

SB335,31,24 b. This law enforcement agency now wants to test one or more samples of your breath, blood, or urine to determine the concentration of an intoxicant in your system. If any test shows more alcohol in your system than the law permits while operating, your operating privilege will be suspended. If you refuse to take any test that this agency requests, your operating privilege will be revoked and you will be subject to other penalties. The test results or the fact that you refused testing can be used against you in court. The law does not provide you with a right to contact an attorney before submitting to a chemical test.

SB335,32,4 c. If you take all of the requested tests, you may choose to take further tests. You may take the alternative test that this law enforcement agency provides free of charge. You also may have a test conducted by a qualified person of your choice at your expense. You, however, will have to make your own arrangements for that test."

SB335,32,8 2. If the person being informed under subd. 1. was arrested for a violation of the intoxicated operation of a commercial motorboat law, the law enforcement officer shall, in lieu of the first paragraph of the information provided under subd. 1., inform the person of the following:

SB335,32,10 "a. You have been arrested for an offense that involves operating a commercial motorboat while under the influence of an intoxicant."

SB335,32,17 (c) Unconscious person. 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 violated the intoxicated operation of a sport recreational vehicle law or the intoxicated operation of a commercial motorboat law, one or more chemical tests may be administered to the person without a request under par. (a) and without providing information under par. (b).

SB335,32,23 (2) Chemical tests. (a) Test facility. Upon the request of a law enforcement officer, a test facility shall administer a chemical test of breath, blood, or urine for the purpose of authorized analysis. A test facility shall be prepared to administer 2 of the 3 chemical tests of breath, blood, or urine for the purpose of authorized analysis. The department may enter into agreements for the cooperative use of test facilities.

SB335,33,3 (b) Designated chemical test. A test facility shall designate one chemical test of breath, blood, or urine which it is prepared to administer first for the purpose of authorized analysis.

SB335,33,7 (c) Additional chemical test. A test facility shall specify one chemical test of breath, blood, or urine, other than the test designated under par. (b), which it is prepared to administer for the purpose of authorized analysis as an additional chemical test.

SB335,33,19 (d) Validity; procedure. A chemical test of blood or urine conducted for the purpose of authorized analysis is valid as provided under s. 343.305 (6). The duties and responsibilities of the laboratory of hygiene, department of health and family services, and department of transportation under s. 343.305 (6) apply to a chemical test of blood or urine conducted for the purpose of authorized analysis under this section. Blood may be withdrawn from a person arrested for a violation of the intoxicated operation of a sport recreational vehicle law or the intoxicated operation of a commercial motorboat law only by a physician, registered nurse, medical technologist, physician assistant, or person acting under the direction of a physician, and the person who withdraws the blood, the employer of that person, and any hospital where blood is withdrawn have immunity from civil or criminal liability as provided under s. 895.53.

SB335,34,2 (e) Report. A test facility that administers a chemical test of breath, blood, or urine for the purpose of authorized analysis under this section shall prepare a written report which shall include the findings of the chemical test, the identification of the law enforcement officer or the person who requested a chemical test, and the identification of the person who provided the sample or submitted to the chemical test. The test facility shall transmit a copy of the report to the law enforcement officer and the person who provided the sample or submitted to the chemical test.

SB335,34,12 (3) Additional and optional chemical tests. (a) Additional chemical test. If a person is arrested for a violation of the intoxicated operation of a sport recreational vehicle law or the intoxicated operation of a commercial motorboat law, or is the operator of a sport recreational vehicle or commercial motorboat involved in an accident resulting in great bodily harm to or the death of someone, and if the person is requested to provide a sample or to submit to a test under sub. (1) (a), the person may request the test facility to administer the additional chemical test specified under sub. (2) (c) or, at his or her own expense, reasonable opportunity to have any qualified person administer a chemical test of his or her breath, blood, or urine for the purpose of authorized analysis.