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346.65 Annotation The state has exclusive jurisdiction over 2nd offense for drunk driving. It is criminal and may not be prosecuted as an ordinance violation. County of Walworth v. Rohner, 108 Wis. 2d 713, 324 N.W.2d 682 (1982).
346.65 Annotation Under sub. (3), a fine is mandatory but a jail sentence is discretionary. State v. McKenzie, 139 Wis. 2d 171, 407 N.W.2d 274 (Ct. App. 1987).
346.65 Annotation Probation with a condition of 30-days' confinement in the county jail is inadequate to meet mandatory the imprisonment requirement of sub. (2) (c). State v. Meddaugh, 148 Wis. 2d 204, 435 N.W.2d 269 (Ct. App. 1988).
346.65 Annotation A judgment entered in municipal court against a defendant for what is actually a second or subsequent offense is void. The state may proceed against the defendant criminally regardless of whether the judgment in municipal court is vacated. City of Kenosha v. Jensen, 184 Wis. 2d 91, 516 N.W.2d 4 (Ct. App. 1994).
346.65 Annotation The general requirements for establishing prior criminal offenses in s. 973.12 are not applicable to the penalty enhancement provisions for drunk driving offenses under sub. (2). There is no presumption of innocence accruing to the defendant as to prior convictions, but the accused must have an opportunity to challenge the existence of the prior offense. State v. Wideman, 206 Wis. 2d 90, 556 N.W.2d 737 (1996).
346.65 Annotation Sub. (2) is primarily a penalty enhancement statute. When a prior conviction is determined to be constitutionally defective, that conviction cannot be relied on for either charging or sentencing a present offense. State v. Foust, 214 Wis. 2d 567, 570 N.W.2d 905 (Ct. App. 1997).
346.65 Annotation Seizure and forfeiture under sub. (6) of a vehicle used in the commission of the crime is an in rem civil forfeiture to which the constitution's double jeopardy clause is inapplicable. State v. Konrath, 218 Wis. 2d 290, 577 N.W.2d 601 (1998).
346.65 Annotation The requirement under sub. (6) (k) that a court find a transfer to have been in good faith does not apply to security interests, but the creation of a security interest in a vehicle must be done in good faith in accordance with the Uniform Commercial Code. State v. Frankwick, 229 Wis. 2d 406, 599 N.W.2d 893 (Ct. App. 1999).
346.65 Annotation A trial court cannot accept guilty pleas to both a second and a third offense OWI, and then apply the increased penalties of third offense OWI to the second offense conviction at sentencing. There must be a conviction before the graduated penalties can be used. State v. Skibinski, 2001 WI App 109, 244 Wis. 2d 229, 629 N.W. 12.
346.65 Annotation When a person is charged under s. 346.63 (1) with a 2nd offense, the charge may not be reduced to a first offense and the court may not sentence under s. 346.65 (2) (a) 1. The department must treat this as a 2nd offense for purposes of revocation. 69 Atty. Gen. 47.
346.65 Annotation An uncounseled civil forfeiture conviction may provide the basis for criminal penalties for a subsequent offense. Schindler v. Clerk of Circuit Court, 715 F.2d 341 (1983).
346.65 Annotation New Law's `Get Tough' Provisions Fall Short of the Mark. Pangman & Mutschler. Wis. Law. Feb. 1993.
346.65 Annotation Targeting the Repeat Offender. Emerson & Maasen. Wis. Law. Feb. 1993.
346.655 346.655 Driver improvement surcharge.
346.655(1) (1) If a court imposes a fine or a forfeiture for a violation of s. 346.63 (1) or (5), or a local ordinance in conformity therewith, or s. 346.63 (2) or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, it shall impose a driver improvement surcharge in an amount of $355 in addition to the fine or forfeiture, penalty assessment, jail assessment, crime laboratories and drug law enforcement assessment, and, if required by s. 349.04, truck driver education assessment.
346.655(2) (2)
346.655(2)(a)(a) Except as provided in par. (b), the clerk of court shall collect and transmit the amount under sub. (1) to the county treasurer as provided in s. 59.40 (2) (m). The county treasurer shall then make payment of 38.5% of the amount to the state treasurer as provided in s. 59.25 (3) (f) 2.
346.655(2)(b) (b) If the forfeiture is imposed by a municipal court, the court shall transmit the amount to the treasurer of the county, city, town, or village, and that treasurer shall make payment of 38.5% of the amount to the state treasurer as provided in s. 66.0114 (1) (bm). The treasurer of the city, town, or village shall transmit the remaining 61.5% of the amount to the treasurer of the county.
346.655(3) (3) All moneys collected from the driver improvement surcharge that are transmitted to the county treasurer under sub. (2) (a) or (b), except the amounts that the county treasurer is required to transmit to the state treasurer under sub. (2) (a) or (b), shall be retained by the county treasurer and disbursed to the county department under s. 51.42 for services under s. 51.42 for drivers referred through assessment.
346.655(4) (4) Any person who fails to pay a driver improvement surcharge imposed under sub. (1) is subject to s. 343.30 (1z).
346.655 Annotation Imprisonment or suspension of a license under s. 345.47 (1) (a) and (b) does not eliminate the liability of a defendant for payment of a surcharge under s. 346.655. 73 Atty. Gen. 24.
subch. XI of ch. 346 SUBCHAPTER XI
ACCIDENTS AND ACCIDENT REPORTS
346.66 346.66 Applicability of sections relating to accidents and accident reporting. In addition to being applicable upon highways, ss. 346.67 to 346.70 are applicable upon all premises held out to the public for use of their motor vehicles, all premises provided by employers to employees for the use of their motor vehicles and all premises provided to tenants of rental housing in buildings of 4 or more units for the use of their motor vehicles, whether such premises are publicly or privately owned and whether or not a fee is charged for the use thereof. These sections do not apply to private parking areas at farms or single-family residences or to accidents involving only snowmobiles, all-terrain vehicles or vehicles propelled by human power or drawn by animals.
346.66 History History: 1971 c. 277; 1985 a. 29; 1995 a. 127.
346.66 Annotation The test for whether a premises is held out to the public is whether on any given day, potentially any resident of the community with a driver's license and access to a motor vehicle could use the premises in an authorized manner. State v. Carter, 229 Wis. 2d 200, 598 N.W.2d 619 (Ct. App. 1999).
346.665 346.665 Definition. In ss. 346.67 to 346.72, notwithstanding s. 340.01 (42), "owner" means, with respect to a vehicle that is registered, or required to be registered, by a lessee of the vehicle under ch. 341, the lessee of the vehicle.
346.665 History History: 1997 a. 27.
346.67 346.67 Duty upon striking person or attended or occupied vehicle.
346.67(1)(1) The operator of any vehicle involved in an accident resulting in injury to or death of any person or in damage to a vehicle which is driven or attended by any person shall immediately stop such vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until the operator has fulfilled the following requirements:
346.67(1)(a) (a) The operator shall give his or her name, address and the registration number of the vehicle he or she is driving to the person struck or to the operator or occupant of or person attending any vehicle collided with; and
346.67(1)(b) (b) The operator shall, upon request and if available, exhibit his or her operator's license to the person struck or to the operator or occupant of or person attending any vehicle collided with; and
346.67(1)(c) (c) The operator shall render to any person injured in such accident reasonable assistance, including the carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon or hospital for medical or surgical treatment if it is apparent that such treatment is necessary or if such carrying is requested by the injured person.
346.67(2) (2) Any stop required under sub. (1) shall be made without obstructing traffic more than is necessary.
346.67 History History: 1991 a. 316; 1997 a. 258.
346.67 Annotation Violation of this section is a felony. State ex rel. McDonald v. Douglas Cty. Cir. Ct. 100 Wis. 2d 569, 302 N.W.2d 462 (1981).
346.67 AnnotationElements of the duty under this section are discussed. State v. Lloyd, 104 Wis. 2d 49, 310 N.W.2d 617 (Ct. App. 1981).
346.67 Annotation Failure to stop and render aid to multiple victims of a single accident may result in multiple charges without multiplicity defects arising. State v. Hartnek, 146 Wis. 2d 188, 430 N.W.2d 361 (Ct. App. 1988).
346.67 Annotation A "person injured" in sub. (1) (c) includes a person who is fatally injured. A subsequent determination of instantaneous death does not absolve a person of the duty to investigate whether assistance is possible. State v. Swatek, 178 Wis. 2d 1, 502 N.W.2d 909 (Ct. App. 1993).
346.68 346.68 Duty upon striking unattended vehicle. The operator of any vehicle which collides with any vehicle which is unattended shall immediately stop and either locate and notify the operator or owner of such vehicle of the name and address of the operator and owner of the vehicle striking the unattended vehicle or leave in a conspicuous place in the vehicle struck, a written notice giving the name and address of the operator and of the owner of the vehicle doing the striking and a statement of the circumstances thereof. Any such stop shall be made without obstructing traffic more than is necessary.
346.68 History History: 1997 a. 258.
346.68 Annotation Driver's knowledge of collision with unattended vehicle need not be proved under this section. 68 Atty. Gen. 274.
346.69 346.69 Duty upon striking property on or adjacent to highway. The operator of any vehicle involved in an accident resulting only in damage to fixtures or other property legally upon or adjacent to a highway shall take reasonable steps to locate and notify the owner or person in charge of such property of such fact and of the operator's name and address and of the registration number of the vehicle the operator is driving and shall upon request and if available exhibit his or her operator's license and shall make report of such accident when and as required in s. 346.70.
346.69 History History: 1991 a. 316.
346.70 346.70 Duty to report accident.
346.70(1) (1)Immediate notice of accident. The operator of a vehicle involved in an accident resulting in injury to or death of any person, any damage to state or other government-owned property, except a state or other government-owned vehicle, to an apparent extent of $200 or more or total damage to property owned by any one person or to a state or other government-owned vehicle to an apparent extent of $1,000 or more shall immediately by the quickest means of communication give notice of such accident to the police department, the sheriff's department or the traffic department of the county or municipality in which the accident occurred or to a state traffic patrol officer. In this subsection, "injury" means injury to a person of a physical nature resulting in death or the need of first aid or attention by a physician or surgeon, whether or not first aid or medical or surgical treatment was actually received; "total damage to property owned by one person" means the sum total cost of putting the property damaged in the condition it was before the accident, if repair thereof is practical, and if not practical, the sum total cost of replacing such property. For purposes of this subsection if any property which is damaged is held in a form of joint or multiple ownership, the property shall be considered to be owned by one person.
346.70(2) (2)Written report of accident. Unless a report is made under sub. (4) by a law enforcement agency, within 10 days after an accident of the type described in sub. (1), the operator of a vehicle involved in the accident shall forward a written report of the accident to the department. The department may accept or require a report of the accident to be filed by an occupant or the owner in lieu of a report from the operator. Every accident report required to be made in writing shall be made on the appropriate form approved by the department and shall contain all of the information required therein unless not available. The report shall include information sufficient to enable the department to determine whether the requirements for deposit of security under s. 344.14 are inapplicable by reason of the existence of insurance or other exceptions specified in ch. 344.
346.70(3) (3)Who to report when operator unable. Whenever the operator of a vehicle is physically incapable of giving the notice and making the report required by subs. (1) and (2), the owner of the vehicle involved in the accident shall give the notice and make the report required by subs. (1) and (2). If the owner of the vehicle is physically or mentally incapable of giving the notice and making the report required by subs. (1) and (2), and if there was another occupant in the vehicle at the time of the accident capable of giving the notice and making the report, the occupant shall give the notice and make the report.
346.70(3m) (3m)Duty of department with respect to accident reports.
346.70(3m)(a)(a) The department may require any operator, occupant or owner of a vehicle involved in an accident of which report must be made as provided in s. 346.70 to file supplemental reports whenever the original report is insufficient in the opinion of the department and may require witnesses of accidents to render reports to the department.
346.70(3m)(b) (b) The department shall tabulate and may analyze all accident reports and shall publish annually or at more frequent intervals statistical information based thereon as to the number and circumstances of traffic accidents.
346.70(3m)(c) (c) The department shall prepare and supply at its own expense to police departments, coroners, sheriffs and other suitable agencies or individuals, forms or an automated format for accident reports required to be made to the department. Any report forms and automated format shall call for sufficiently detailed information to disclose with reference to a traffic accident the cause, conditions then existing, and the persons and vehicles involved.
346.70(4) (4)Police and traffic agencies to report.
346.70(4)(a)(a) Every law enforcement agency investigating or receiving a report of a traffic accident as described in sub. (1) shall forward an original written report of the accident or a report of the accident in an automated format to the department within 10 days after the date of the accident.
346.70(4)(b) (b) The reports shall be made on a uniform traffic accident report form or in an automated format prescribed by the secretary. The uniform traffic accident report form shall be supplied by the secretary in sufficient quantities to meet the requirements of the department and the law enforcement agency.
346.70(4)(f) (f) Notwithstanding s. 346.73, any person may with proper care, during office hours, and subject to such orders or regulations as the custodian thereof prescribes, examine or copy such uniform traffic accident reports, including supplemental or additional reports, statements of witnesses, photographs and diagrams, retained by local authorities, the state traffic patrol or any other investigating law enforcement agency.
346.70(4)(g) (g) The department, upon request of local enforcement agencies, shall make available to them compilations of data obtained from such reports.
346.70(4)(h) (h) Every law enforcement agency investigating or receiving a report of a traffic accident as described in sub. (1) shall forward a copy of the report of the accident to the county traffic safety commission or to the person designated to maintain spot maps under s. 83.013 (1) (a) in the county where the accident occurred when the accident occurred on a county or town road or on a street where the population of the city, village or town is less than 5,000. For traffic accidents occurring within a city or village with a population of 5,000 or more, the law enforcement agency investigating or receiving a report shall forward a copy of the report of the accident to the city or village where the accident occurred.
346.70(4)(i) (i) Whenever a law enforcement officer investigates or receives a report of a traffic accident subject to sub. (1), in which the operator of any vehicle involved in the accident displays a driver's license issued by the federal department of state or otherwise claims immunities or privileges under 22 USC 254a to 258a with respect to the operator's violation of any state traffic law or any local traffic law enacted by any local authority in accordance with s. 349.06, the officer shall do all of the following:
346.70(4)(i)1. 1. As soon as practicable, contact the diplomatic security command center of the office of foreign missions, diplomatic motor vehicle office, within the the federal department of state, to verify the status and immunity, if any, of the driver claiming diplomatic immunity.
346.70(4)(i)2. 2. Within 10 days after the date of the accident, forward a copy of the report of the accident, at no charge, to the diplomatic security command center of the office of foreign missions, diplomatic motor vehicle office, within the federal department of state.
346.70(5) (5)Falsifying reports. No person shall falsely make and file or transmit any accident report or knowingly make a false statement in any accident report which is filed or transmitted pursuant to this section.
346.70 Cross-reference Cross Reference: See also ch. Trans 100, Wis. adm. code.
346.70 Annotation Items subject to examination under s. 346.70 (4) (f) may not be withheld by the prosecution under the common law rule that investigative material may be withheld from a criminal defendant. State ex rel. Young v. Shaw, 165 Wis. 2d 276, 477 N.W.2d 340 (Ct. App. 1991).
346.70 Annotation A county sheriff's department is not a consumer reporting agency subject to the fair credit reporting act for reports under sub. (4). However, the federal trade commission has taken an opposite position. 63 Atty. Gen. 364.
346.71 346.71 Coroners or medical examiners to report; require blood specimen.
346.71(1) (1) Every coroner or medical examiner shall, on or before the 10th day of each month, report in writing any accident involving a motor vehicle occurring within the coroner's or medical examiner's jurisdiction resulting in the death of any person during the preceding calendar month. If the accident involved an all-terrain vehicle, the report shall be made to the department of natural resources and shall include the information specified by that department. If the accident involved any other motor vehicle, the report shall be made to the department and shall include the information specified by the department. The coroner or medical examiner of the county where the death occurs, if the accident occurred in another jurisdiction, shall, immediately upon learning of the death, report it to the coroner or medical examiner of the county where the accident occurred, as provided in s. 979.01 (1).
346.71(2) (2) In cases of death involving a motor vehicle in which the decedent was the operator of a motor vehicle, a pedestrian 14 years of age or older or a bicycle or electric personal assistive mobility device operator 14 years of age or older and who died within 6 hours of the time of the accident, the coroner or medical examiner of the county where the death occurred shall require that a blood specimen of at least 10 cc. be withdrawn from the body of the decedent within 12 hours after his or her death, by the coroner or medical examiner or by a physician so designated by the coroner or medical examiner or by a qualified person at the direction of the physician. All funeral directors shall obtain a release from the coroner or medical examiner of the county where the accident occurred as provided in s. 979.01 (4) prior to proceeding with embalming any body coming under the scope of this section. The blood so drawn shall be forwarded to a laboratory approved by the department of health and family services for analysis of the alcoholic content of the blood specimen. The coroner or medical examiner causing the blood to be withdrawn shall be notified of the results of each analysis made and shall forward the results of each such analysis to the department of health and family services. If the death involved a motor vehicle, the department shall keep a record of all such examinations to be used for statistical purposes only and the department shall disseminate and make public the cumulative results of the examinations without identifying the individuals involved. If the death involved an all-terrain vehicle, the department of natural resources shall keep a record of all such examinations to be used for statistical purposes only and the department of natural resources shall disseminate and make public the cumulative results of the examinations without identifying the individuals involved.
346.71(3) (3) In a case of death involving a motor vehicle in which the accident and the death occur in different counties, the county where the death occurs may charge the county where the accident occurs a reasonable fee for withdrawing the blood specimen from the body of the decedent as required under sub. (2).
346.71 Annotation Coroners' blood test records under sub. (2) are not confidential. Test results are presumptively accurate. Staples v. Glienke, 142 Wis. 2d 19, 416 N.W.2d 920 (Ct. App. 1987).
346.72 346.72 Garages to keep record of repairs of accident damage. The person in charge of any garage or repair shop to which is brought any motor vehicle which shows evidence of having been involved in an accident shall keep a record of the date such vehicle is brought in and the nature of the repair, the name and address of the owner, and the make, year and registration number of the vehicle. Such record shall be kept in the place of business during business hours and shall be open to inspection by any traffic officer. Shop records normally kept by garages and repair shops are adequate for the purpose of this section if they contain the information specified in this section.
346.73 346.73 Accident reports not to be used in trial. Notwithstanding s. 346.70 (4) (f), accident reports required to be filed with or transmitted to the department or a county or municipal authority shall not be used as evidence in any judicial trial, civil or criminal, arising out of an accident, except that such reports may be used as evidence in any administrative proceeding conducted by the department. The department shall furnish upon demand of any person who has or claims to have made such a report, or upon demand of any court, a certificate showing that a specified accident report has or has not been made to the department solely to prove a compliance or a failure to comply with the requirement that such a report be made to the department.
346.73 History History: 1971 c. 253; 1977 c. 29 s. 1654 (7) (a); 1993 a. 437.
346.74 346.74 Penalty for violating sections 346.67 to 346.73.
346.74(1)(1) Any person violating s. 346.72 may be required to forfeit not less than $20 nor more than $40 for the first offense and may be required to forfeit not less than $50 nor more than $100 for the 2nd or subsequent conviction within a year.
346.74(2) (2) Any person violating s. 346.70 (1), (2) or (3), 346.71 or 346.73 may be required to forfeit not less than $40 nor more than $200 for the first offense and may be required to forfeit not less than $100 nor more than $500 for the 2nd or subsequent conviction within a year.
346.74(3) (3) Any person violating s. 346.68 or 346.69 may be required to forfeit not more than $200.
346.74(4) (4) Any person violating s. 346.70 (5) may be required to forfeit not less than $25 nor more than $50.
346.74(5) (5) Any person violating any provision of s. 346.67 (1):
346.74(5)(a) (a) Shall be fined not less than $300 nor more than $1,000 or imprisoned not more than 6 months or both if the accident did not involve death or injury to a person.
346.74(5)(b) (b) May be fined not more than $10,000 or imprisoned for not more than 9 months or both if the accident involved injury to a person but the person did not suffer great bodily harm.
Effective date note NOTE: Par. (b) is shown as amended eff. 2-1-03 by 2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text (b) Shall be fined not less than $300 nor more than $5,000 or imprisoned not less than 10 days nor more than 2 years or both if the accident involved injury to a person but the person did not suffer great bodily harm.
346.74(5)(c) (c) Is guilty of a Class I felony if the accident involved injury to a person and the person suffered great bodily harm.
Effective date note NOTE: Par. (c) is shown as amended eff. 2-1-03 by 2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text (c) May be fined not more than $10,000 or imprisoned not more than 3 years or both if the accident involved injury to a person and the person suffered great bodily harm.
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