LRB-4199/1
TNF&PJH:kmg:pg
2001 - 2002 LEGISLATURE
December 6, 2001 - Introduced by
Joint Legislative Council. Referred to
Committee on Judiciary, Consumer Affairs, and Campaign Finance Reform.
SB338,2,4
1An Act to repeal 346.62 (1) (a) and (b), 885.235 (1) (bd) and 967.055 (1m);
to
2renumber and amend 343.303;
to amend 85.53 (1) (c), 343.10 (8) (intro.),
3343.16 (5) (a), 343.30 (1g) (a), 343.30 (1g) (b), 343.30 (1q) (c) 1. (intro.), 343.30
4(1q) (d), 343.30 (1q) (h), 343.305 (2), (3) (am) and (b), (4) (form) and (5) (b),
5343.305 (6) (a), 343.305 (9) (a) (intro.) and 4., 343.305 (9) (a) 5. a. and c., 343.305
6(9) (am) (intro.) and 4., 343.305 (9) (am) 5. a. and c., 343.305 (9) (c), 343.305 (10)
7(c) 1. (intro.), 343.305 (10) (d), 343.307 (1) (d) and (2) (e), 343.31 (1) (am) and (ar),
8343.31 (1) (b), 343.31 (2) and (3) (b), 343.315 (2) (a) 1. and 6., 343.44 (1) (a) and
9(b), 344.576 (2) (b) and (c), 345.24 (1), 346.17 (3) (b), 346.17 (3) (c), 346.61, 346.63
10(title), 346.63 (1) (a) and (b), 346.63 (2) (a) (intro.) and 1. and (b), 346.63 (6) (a)
11and (c), 346.637 (1) and (2), 346.65 (2) (e), 346.65 (2g) (b) and (c) and (2i), 346.65
12(2q) and (2u) (a), 346.65 (3m) and (7), 346.66, 351.02 (1) (a) 10., 885.235 (1g) (a),
13895.53 (2), 949.08 (2) (e) and (em), 967.055 (title) and (1) (a) and 967.055 (2) (a);
14to repeal and recreate 343.305 (5) (d), 885.235 (1) (b) and (c) and 939.22 (42);
1and
to create 340.01 (5u) and (19d), 340.01 (25d) and (73e), 343.30 (1g) (c),
2343.305 (5) (e), 346.65 (2) (g) 4., 346.65 (8), 800.08 (5) and 939.22 (19m) of the
3statutes;
relating to: intoxicated operation of a motor vehicle and providing a
4penalty.
Analysis by the Legislative Reference Bureau
This bill is explained in the Notes provided by the joint legislative council in
the bill.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
Prefatory note: This bill was prepared for the special committee on recodification
of operating while intoxicated and safety laws pertaining to motor vehicle, all-terrain
vehicle, boat, or snowmobile operation. The special committee was directed to study
current statutes relating to operating a vehicle while under the influence of an intoxicant
or drug and to reorganize, simplify, modernize, and clarify these statutes and make minor
substantive changes necessary to effect these goals. In addition, the special committee
was directed to study, with respect to an all-terrain vehicle, a boat, or a snowmobile,
whether enforcement mechanisms need to be increased or created to ensure compliance
with the law.
This bill creates a definition of the terms "intoxicant" and "under the influence of
an intoxicant" for use in the motor vehicle code. Most of the Sections of this bill are
concerned with the use of these terms and a description of this issue can be found in the
note following Section 3 of the bill. Other changes to the statutes made in the bill are
identified in notes to the provisions affected.
SB338, s. 1
5Section
1. 85.53 (1) (c) of the statutes is amended to read:
SB338,2,86
85.53
(1) (c) "Intoxicant"
means any alcohol beverage, controlled substance,
7controlled substance analog or other drug or any combination thereof has the
8meaning given in s. 340.01 (25d).
SB338, s. 2
9Section
2
. 340.01 (5u) and (19d) of the statutes are created to read:
SB338,2,1110
340.01
(5u) "Bodily harm" means physical pain or injury, illness, or any
11impairment of physical condition.
SB338,3,4
1(19d) "Great bodily harm" means bodily injury which creates a substantial risk
2of death, or which causes serious permanent disfigurement, or which causes a
3permanent or protracted loss or impairment of the function of any bodily member or
4organ or other serious bodily injury.
Note: This Section creates definitions for "bodily harm" and "great bodily harm,"
using definitions currently set forth in s. 939.22 (4) and (14).
SB338, s. 3
5Section
3
. 340.01 (25d) and (73e) of the statutes are created to read:
SB338,3,66
340.01
(25d) "Intoxicant" means any of the following:
SB338,3,87
(a) Alcohol, a controlled substance, a controlled substance analog, any other
8drug, or a vapor-releasing substance.
SB338,3,109
(b) Any combination of alcohol, a controlled substance, a controlled substance
10analog, any other drug, or a vapor-releasing substance.
SB338,3,14
11(73e) "Under the influence of an intoxicant" means a condition in which a
12person's ability to operate a motor vehicle, because of the consumption or use of an
13intoxicant, is impaired to the extent that the person is less able to exercise the clear
14judgment and steady hand necessary to handle and control a motor vehicle.
Note: Current law treats the issue of operating a motor vehicle while intoxicated
using various terms, often inconsistently. The terms used are "intoxicant", "alcohol",
"controlled substance", "controlled substance analog", and "other drug". In the following
sections of the statutes, the terms "alcohol", "a controlled substance", and "controlled
substance analog" are used: ss. 343.10, 343.16, 343.30, 343.305, 343.307, 343.44,
346.637, and 895.53, stats. Other sections of the statutes make use of these terms plus
the term "other drug": ss. 85.53, 343.303, 343.305, 343.31, 343.315, 343.63, 344.576,
351.02, and 346.65, stats. In addition, the term "intoxicant" is intermittently used.
This Section creates a definition of the term "intoxicant" to mean any of the
following:
1. Alcohol, a controlled substance, a controlled substance analog, any other drug,
or a vapor-releasing substance.
2. Any combination of alcohol, a controlled substance, a controlled substance
analog, any other drug, or a vapor-releasing substance.
The use of the definition of the term "intoxicant" in the statutes will indicate
consistently that a person may be considered intoxicated due to the individual impacts
or the combined impacts of alcohol, a controlled substance, a controlled substance analog,
any other drug, or a vapor-releasing substance.
Another issue presented by this bill is the meaning of the phrase "operating a motor
vehicle while under the influence". For example, s. 343.305 (9) (a) 5. a., states in part:
"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 ...."
It appears from the above-cited section of the statutes that the phrase "to a degree
which renders the person incapable of safely driving" applies only to a person acting
under the influence of "any other drug" or "alcohol and any other drug".
Wisconsin criminal jury instructions state that the phrase "under the influence of
an intoxicant" means that a driver's ability to operate a vehicle is impaired because of the
consumption of an alcoholic beverage. "Not every person who has consumed alcoholic
beverages is `under the influence' as that term is used here. What must be established
is that the person has consumed a sufficient amount of alcohol to cause him to be less able
to exercise the clear judgment and steady hand necessary to handle and control a motor
vehicle. It is not required that impaired ability to operate be demonstrated by particular
acts of unsafe driving. What is required is that the person's ability to safely control his
vehicle be impaired". [See WIS JI-CRIMINAL s. 2663.]
With respect to operating a motor vehicle while under the influence of a drug, the
Wisconsin criminal jury instructions state that one element of this offense requires that
the defendant drove or operated a motor vehicle while under the influence of a drug to
a degree which rendered the defendant incapable of safely driving. [See WI
JI-CRIMINAL s. 2666.]
This bill creates a definition of the term "under the influence of an intoxicant" by
codifying the language of WI JI-CRIMINAL s. 2663. Rather than using 2 standards, as
under current law, the bill applies the definition to the operation of a motor vehicle when
the consumption of any intoxicant is involved. Again, the term "intoxicant" is defined to
mean alcohol, a controlled substance, a controlled substance analog, any other drug, a
vapor-releasing substance, or any combination of these items.
SB338, s. 4
1Section
4. 343.10 (8) (intro.) of the statutes is amended to read:
SB338,4,62
343.10
(8) Violation of restrictions. (intro.) Any person who violates a
3restriction on an occupational license as to hours of the day, area, routes or purpose
4of travel, vehicles allowed to be operated, use of an ignition interlock device, sobriety
, 5or use of
alcohol, controlled substances or controlled substance analogs an intoxicant 6shall be:
SB338,5,22
1343.16
(5) (a) The secretary may require any applicant for a license or any
2licensed operator to submit to a special examination by such persons or agencies as
3the secretary may direct to determine incompetency, physical or mental disability,
4disease
, or any other condition which might prevent such applicant or licensed
5person from exercising reasonable and ordinary control over a motor vehicle. When
6the department requires the applicant to submit to an examination, the applicant
7shall pay the cost thereof. If the department receives an application for a renewal
8or duplicate license after voluntary surrender under s. 343.265 or receives a report
9from a physician or optometrist under s. 146.82 (3), or if the department has a report
10of 2 or more arrests within a one-year period for any combination of violations of s.
11346.63 (1) or (5) or a local ordinance in conformity therewith or a law of a federally
12recognized American Indian tribe or band in this state in conformity with s. 346.63
13(1) or (5), or s. 346.63 (1m), 1985 stats., or s. 346.63 (2) or (6) or 940.25, or s. 940.09
14where the offense involved the use of a vehicle, the department shall determine, by
15interview or otherwise, whether the operator should submit to an examination under
16this section. The examination may consist of an assessment. If the examination
17indicates that education or treatment for a disability, disease
, or condition
18concerning the use of
alcohol, a controlled substance or a controlled substance analog 19an intoxicant is appropriate, the department may order a driver safety plan in
20accordance with s. 343.30 (1q). If there is noncompliance with assessment or the
21driver safety plan, the department shall revoke the person's operating privilege in
22the manner specified in s. 343.30 (1q) (d).
SB338, s. 6
23Section
6. 343.30 (1g) (a) of the statutes is amended to read:
SB338,6,224
343.30
(1g) (a) Except as provided in
par. pars. (b)
and (c), a court may suspend
25a person's operating privilege for any period not exceeding 6 months upon the
1person's conviction for violating s. 343.44 (1) (a), (b)
, or (d) or a local ordinance in
2conformity therewith.
SB338, s. 7
3Section
7. 343.30 (1g) (b) of the statutes is amended to read:
SB338,6,114
343.30
(1g) (b)
A Except as provided in par. (c), a court shall revoke a person's
5operating privilege upon the person's conviction for violating s. 343.44 (1) (a), (b)
, or
6(d) or a local ordinance in conformity therewith if the person has been convicted of
73 or more prior violations of s. 343.44 (1) (a), (b)
, or (d), or similar violations under
8s. 343.44 (1), 1997 stats., or a local ordinance in conformity therewith, within the
95-year period preceding the violation. The revocation shall be for a period of 6
10months, unless the court orders a period of revocation of less than 6 months and
11places its reasons for ordering the lesser period of revocation on the record.
SB338, s. 8
12Section
8. 343.30 (1g) (c) of the statutes is created to read:
SB338,6,1713
343.30
(1g) (c) A court shall suspend a person's operating privilege upon the
14person's conviction under s. 343.44 for violating s. 343.10 (5) (a) 3. or under s.
15347.413. The revocation shall be for a period of not less than 6 months nor more than
169 months. If a person is convicted under s. 347.413, the person is eligible for an
17occupational license at any time.
Note: This Section creates a license suspension provision applicable to persons
who are convicted of tampering with an ignition interlock device (IID), either under the
general tampering provision in s. 347.413, stats., or the tampering language in s. 343.10,
stats. As with the current IID tampering laws, this suspension applies to whoever
commits the tampering violation (that is, the operator subject to the IID restriction or
anyone else tampering with the device). Except where an occupational license is
involved, the suspension period and the provision making the operator eligible for an
occupational license at any time is the same as that currently applicable to a first offense
violator of the statutes prohibiting the operation of a motor vehicle while under the
influence of an intoxicant or other drug (OWI). If the violator is an OWI violator who has
an occupational license, the provisions of the occupational license statute determine
future eligibility for such a license.
SB338, s. 9
18Section
9. 343.30 (1q) (c) 1. (intro.) of the statutes is amended to read:
SB338,7,9
1343.30
(1q) (c) 1. (intro.) Except as provided in subd. 1. a. or b., the court shall
2order the person to submit to and comply with an assessment by an approved public
3treatment facility
, as defined in s. 51.45 (2) (c)
, for examination of the person's use
4of
alcohol, controlled substances or controlled substance analogs an intoxicant and
5development of a driver safety plan for the person. The court shall notify the
6department of transportation of the assessment order. The court shall notify the
7person that noncompliance with assessment or the driver safety plan will result in
8revocation of the person's operating privilege until the person is in compliance. The
9assessment order shall:
SB338,9,212
343.30
(1q) (d) The assessment report shall order compliance with a driver
13safety plan. The report shall inform the person of the fee provisions under s. 46.03
14(18) (f). The driver safety plan may include a component that makes the person
15aware of the effect of his or her offense on a victim and a victim's family. The driver
16safety plan may include treatment for the person's misuse, abuse
, or dependence on
17alcohol, controlled substances or controlled substance analogs an intoxicant, or
18attendance at a school under s. 345.60, or both. If the plan requires inpatient
19treatment, the treatment shall not exceed 30 days. A driver safety plan under this
20paragraph shall include a termination date consistent with the plan which shall not
21extend beyond one year. The county department under s. 51.42 shall assure
22notification of the department of transportation and the person of the person's
23compliance or noncompliance with assessment and with treatment. The school
24under s. 345.60 shall notify the department, the county department under s. 51.42
, 25and the person of the person's compliance or noncompliance with the requirements
1of the school. Nonpayment of the assessment fee or, if the person has the ability to
2pay, nonpayment of the driver safety plan fee is noncompliance with the court order.
3If the department is notified of any noncompliance, other than for nonpayment of the
4assessment fee or driver safety plan fee, it shall revoke the person's operating
5privilege until the county department under s. 51.42 or the school under s. 345.60
6notifies the department that the person is in compliance with assessment or the
7driver safety plan. If the department is notified that a person has not paid the
8assessment fee, or that a person with the ability to pay has not paid the driver safety
9plan fee, the department shall suspend the person's operating privilege for a period
10of 2 years or until it receives notice that the person has paid the fee, whichever occurs
11first. The department shall notify the person of the suspension or revocation, the
12reason for the suspension or revocation
, and the person's right to a review. A person
13may request a review of a revocation based upon failure to comply with a driver safety
14plan within 10 days of notification. The review shall be handled by the subunit of
15the department of transportation designated by the secretary. The issues at the
16review are limited to whether the driver safety plan, if challenged, is appropriate and
17whether the person is in compliance with the assessment order or the driver safety
18plan. The review shall be conducted within 10 days after a request is received. If the
19driver safety plan is determined to be inappropriate, the department shall order a
20reassessment and
, if the person is otherwise eligible, the department shall reinstate
21the person's operating privilege. If the person is determined to be in compliance with
22the assessment or driver safety plan, and if the person is otherwise eligible, the
23department shall reinstate the person's operating privilege. If there is no decision
24within the 10-day period, the department shall issue an order reinstating the
1person's operating privilege until the review is completed, unless the delay is at the
2request of the person seeking the review.
SB338, s. 11
3Section
11. 343.30 (1q) (h) of the statutes is amended to read:
SB338,9,224
343.30
(1q) (h) The court or department shall provide that the period of
5suspension or revocation imposed under this subsection shall be reduced by any
6period of suspension or revocation previously served under s. 343.305 if the
7suspension or revocation under s. 343.305 and the conviction for violation of s. 346.63
8(1) or (2m) or a local ordinance in conformity therewith arise out of the same incident
9or occurrence. The court or department shall order that the period of suspension or
10revocation imposed under this subsection run concurrently with any period of time
11remaining on a suspension or revocation imposed under s. 343.305 arising out of the
12same incident or occurrence.
The court or department shall order that any period
13of time that must expire before a person is eligible for an occupational license under
14this subsection be reduced by any similar period previously expired under s. 343.305
15if the suspension or revocation under s. 343.305 and the conviction for violation of
16s. 346.63 (1) or a local ordinance in conformity therewith arise out of the same
17incident or occurrence. The court or department shall order that any period of time
18that must expire before a person is eligible for an occupational license under this
19subsection run concurrently with any similar period of time remaining under s.
20343.305 arising out of the same incident or occurrence. The court may modify an
21occupational license authorized under s. 343.305 (8) (d) in accordance with this
22subsection.
Note: Section 343.30 (1q) (b), stats., provides that a person who is convicted of
driving or operating a motor vehicle while under the influence of an intoxicant or other
drug or while maintaining a prohibited alcohol concentration will be subject to revocation
of the person's operating privilege and a specified period of time within which the person
is not eligible to obtain an occupational license. Similarly, s. 343.305 (10) (b), stats.,
provides that a person who improperly refuses to take a test to determine the presence
of alcohol or other drugs will be subject to a revocation of the person's operating privilege
and a specified period of time within which the person is not eligible to obtain an
occupational license. This Section provides that, for a conviction and a refusal that arise
out of the same incident or occurrence, the periods of time within which a person will not
be eligible for an occupational license will run concurrently or, if an eligibility period has
begun to run for a refusal, the latter period will operate as an offset to the period of
ineligibility for an occupational license under s. 343.30, stats.
SB338, s. 12
1Section
12. 343.303 of the statutes is renumbered 343.303 (1) (intro.) and
2amended to read:
SB338,10,63
343.303
(1) (intro.)
If a A law enforcement officer
has probable cause to believe
,
4prior to an arrest, may request a person to provide a sample of his or her breath for
5a preliminary breath screening test using a device approved by the department for
6this purpose if any of the following conditions exists:
SB338,10,10
7(a) The law enforcement officer has reasonable suspicion that the person is
8violating or has violated s. 346.63 (1) or (2m) or a local ordinance in conformity
9therewith, or s. 346.63 (2) or (6)
or, 940.09 (1), or 940.25
or s. 940.09 where the offense
10involved the use of a vehicle, or if the.
SB338,10,14
11(b) The law enforcement officer detects any presence of
alcohol, a controlled
12substance, controlled substance analog or other drug, or a combination thereof, an
13intoxicant on a person driving or operating or on duty time with respect to a
14commercial motor vehicle
or.
SB338,10,19
15(c) The law enforcement officer has reason to believe that the person is violating
16or has violated s. 346.63 (7) or a local ordinance in conformity therewith
, the officer,
17prior to an arrest, may request the person to provide a sample of his or her breath
18for a preliminary breath screening test using a device approved by the department
19for this purpose.
SB338,11,4
20(2) The result of
this the preliminary breath screening test
under sub. (1) may
21be used by the law enforcement officer for the purpose of deciding whether or not the
1person shall be arrested for a violation of s. 346.63 (1), (2m), (5)
, or (7) or a local
2ordinance in conformity therewith, or s. 346.63 (2) or (6), 940.09 (1)
, or 940.25 and
3whether or not to require or request chemical tests as authorized under s. 343.305
4(3).