AB458: Bill Text

LRB-0465/3

PJH&MGD:jd&wlj:jf

2003 - 2004 LEGISLATURE

2003 Assembly BILL AB-458

August 4, 2003 - Introduced by Representatives Gundrum, Suder, Ziegelbauer, Staskunas, Kerkman, Krusick, Vukmir, Gronemus, LeMahieu, Turner, Ward, Towns, Petrowski, Olsen, Ainsworth, Weber, Nass, Ladwig, Hines, Ott, Gunderson, J. Fitzgerald, Van Roy, M. Lehman, Freese, Friske, Gielow, Rhoades, Vrakas, Pettis, Albers and Krawczyk, cosponsored by Senators Harsdorf, Lazich, Lassa, Roessler, Kanavas, Darling, S. Fitzgerald, Stepp, Leibham, Kedzie, Reynolds and A. Lasee, by request of Bill and Michelle Logemann, parents of Baby Luke. Referred to Committee on Judiciary.

AB458,2,11 An Act to renumber and amend 23.33 (4c) (b) 4., 30.681 (2) (d) 1., 343.305 (8) (b) 5., 346.63 (2) (b), 350.101 (2) (d), 940.09 (1m), 940.09 (2), 940.25 (1m), 940.25 (2) and 967.055 (1m); to amend 23.33 (4c) (a) 4., 23.33 (4c) (b) 3., 23.33 (4p) (d), 23.33 (13) (b) 1., 23.33 (13) (b) 2., 23.33 (13) (b) 3., 30.681 (1) (b) (title), 30.681 (1) (c), 30.681 (2) (b) (title), 30.681 (2) (c), 30.684 (4), 343.305 (7) (a), 343.305 (8) (b) 2. bm. and d., 343.305 (9) (a) 5. a., 343.307 (1) (d), 343.307 (2) (e), 343.307 (3), 343.31 (1) (am), 343.31 (2), 343.315 (2) (a) 5., 343.315 (2) (a) 6., 344.576 (2) (b), 346.63 (1) (c), 346.63 (2) (am), 346.65 (2g) (c), 346.65 (2m) (a), 346.65 (6) (a) 1., 346.65 (6) (c), 346.65 (6) (d), 350.101 (1) (d), 350.101 (2) (c), 350.104 (4), 350.11 (3) (a) 1., 350.11 (3) (a) 2., 350.11 (3) (a) 3., 351.02 (1) (a) 10., 885.235 (4), 939.75 (1), 939.75 (2) (b), 939.75 (3) (intro.), 940.09 (1d) (a) 1., 940.09 (1d) (a) 2., 940.09 (1d) (b), 940.25 (1d) (a) 1., 940.25 (1d) (a) 2., 940.25 (1d) (b), 949.08 (2) (e), 949.08 (2) (em), 967.055 (1) (a) and 967.055 (2) (a); and to create 23.33 (1) (jo), 23.33 (4c) (a) 2m., 23.33 (4c) (a) 5., 23.33 (4c) (b) 2m., 23.33 (4c) (b) 4. b., 30.50 (10m), 30.681 (1) (b) 1m., 30.681 (1) (d), 30.681 (2) (b) 1m., 30.681 (2) (d) 1. b., 340.01 (50m), 343.305 (5) (e), 343.305 (8) (b) 2. g., 343.305 (8) (b) 4m., 343.305 (8) (b) 5. a., 343.305 (8) (b) 5. b., 343.305 (8) (b) 5. c., 343.305 (8) (b) 6. a., 343.305 (8) (b) 6. b., 343.305 (8) (b) 6. c., 343.315 (2) (a) 1m., 346.63 (1) (am), 346.63 (1) (d), 346.63 (2) (a) 3., 346.63 (2) (b) 2., 350.01 (10v), 350.101 (1) (bm), 350.101 (1) (e), 350.101 (2) (bm), 350.101 (2) (d) 2., 885.235 (1) (d), 885.235 (1k), 939.22 (33), 940.09 (1) (am), 940.09 (1) (cm), 940.09 (1g) (am), 940.09 (1g) (cm), 940.09 (2) (b), 940.25 (1) (am), 940.25 (1) (cm), 940.25 (2) (b), 941.20 (1) (bm) and 967.055 (1m) (b) of the statutes; relating to: operating a vehicle or operating or going armed with a firearm after using certain controlled substances and providing penalties.

Analysis by the Legislative Reference Bureau

Under current law, a person may not operate a motor vehicle, an all-terrain vehicle (ATV), a snowmobile, or a motorboat if he or she: 1) has an alcohol concentration of 0.1 or more in his or her blood, breath, or urine; or 2) is under the influence of an intoxicant (alcohol, drugs, or a combination of alcohol and drugs) that impairs his or her ability to operate the motor vehicle, ATV, snowmobile, or motorboat safely. Penalties for a person who violates one of these prohibitions (which include suspension of the person's driver's license) depend on the number of prior offenses, whether the person injured or killed another as a result of operating the motor vehicle, ATV, snowmobile, or motorboat, and, if another person was injured, the extent of that person's injury. Current law, however, provides a person a defense to prosecution for causing injury or death if the person can prove that the injury or death would have occurred even if he or she had been exercising due care and did not have a prohibited alcohol concentration or was not under the influence of an intoxicant. Current law also prohibits a person from operating or going armed with a firearm while under the influence of an intoxicant, with more severe penalties applying if another person is killed as a result.

This bill prohibits a person from operating a motor vehicle, an ATV, a snowmobile, or a motorboat or operating or going armed with a firearm if he or she has a detectable amount of a restricted controlled substance in his or her blood, regardless of whether the person's ability to operate the motor vehicle, ATV, snowmobile, or motorboat safely has been impaired. The bill defines a restricted controlled substance as: 1) delta-9-tetrahydrocannabinol (the primary active ingredient in marijuana); 2) a controlled substance (other than marijuana) included in Schedule I under the state's controlled substance law, which includes heroin, LSD, PCP, and certain "club drugs"; 3) cocaine or any of its metabolites; and 4) methamphetamine. Penalties for a person who violates one of these prohibitions are the same as those that would apply if the person had a prohibited alcohol concentration or had been under the influence of an intoxicant. The bill, however, provides a person who has a detectable amount of a restricted controlled substance in his or her blood a defense to causing death or injury if the person can prove that the injury or death would have occurred even if he or she had been exercising due care and did not have a detectable amount of a restricted controlled substance in his or her blood. In addition, a person has a defense to prosecution for any offense created under the bill that is based on the person having a detectable amount of methamphetamine or delta-9-tetrahydrocannabinol in his or her blood if the person can prove that he or she had a valid prescription for methamphetamine, a drug that metabolizes into methamphetamine, or delta-9-tetrahydrocannabinol.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report concerning the proposed penalty and the costs or savings that are likely to result if the bill is enacted.

Because this bill proposes to revoke a person's operating privilege upon conviction for an offense, the Department of Transportation, as required by law, will prepare a report to be printed as an appendix to this 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:

AB458, s. 1 Section 1. 23.33 (1) (jo) of the statutes is created to read:

AB458,3,2 23.33 (1) (jo) "Restricted controlled substance" means any of the following:

AB458,3,4 1. A controlled substance included in schedule I under ch. 961 other than a tetrahydrocannabinol.

AB458,3,6 2. A controlled substance analog, as defined in s. 961.01 (4m), of a controlled substance described in subd. 1.

AB458,3,7 3. Cocaine or any of its metabolites.

AB458,3,8 4. Methamphetamine.

AB458,3,9 5. Delta-9-tetrahydrocannabinol.

AB458, s. 2 Section 2. 23.33 (4c) (a) 2m. of the statutes is created to read:

AB458,4,4 23.33 (4c) (a) 2m. `Operating with a restricted controlled substance.' No person may engage in the operation of an all-terrain vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.

AB458, s. 3 Section 3. 23.33 (4c) (a) 4. of the statutes is amended to read:

AB458,4,15 23.33 (4c) (a) 4. `Related charges.' A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of subd. 1. or 2. or both any combination of subd. 1., 2., or 2m. for acts arising out of the same incident or occurrence. If the person is charged with violating both subds. 1. and 2. any combination of subd. 1., 2., or 2m., the offenses shall be joined. If the person is found guilty of both subds. 1. and 2. any combination of subd. 1., 2., or 2m. 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 sub. (13) (b) 2. and 3. Subdivisions 1. and, 2., and 2m. each require proof of a fact for conviction which the other does others do not require.

AB458, s. 4 Section 4. 23.33 (4c) (a) 5. of the statutes is created to read:

AB458,4,22 23.33 (4c) (a) 5. `Defenses.' In an action under subd. 2m. that is based on the defendant allegedly having a detectable amount of methamphetamine or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors or delta-9-tetrahydrocannabinol.

AB458, s. 5 Section 5. 23.33 (4c) (b) 2m. of the statutes is created to read:

AB458,5,2 23.33 (4c) (b) 2m. `Causing injury while operating with a restricted controlled substance.' No person who has a detectable amount of a restricted controlled substance in his or her blood may cause injury to another person by the operation of an all-terrain vehicle.

AB458, s. 6 Section 6. 23.33 (4c) (b) 3. of the statutes is amended to read:

AB458,5,13 23.33 (4c) (b) 3. `Related charges.' A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of subd. 1. or 2. or both any combination of subd. 1., 2., or 2m. for acts arising out of the same incident or occurrence. If the person is charged with violating both subds. 1. and 2. any combination of subd. 1., 2., or 2m. in the complaint, the crimes shall be joined under s. 971.12. If the person is found guilty of both subds. 1. and 2. any combination of subd. 1, 2., or 2m. 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 sub. (13) (b) 2. and 3. Subdivisions 1. and, 2., and 2m. each require proof of a fact for conviction which the other does others do not require.

AB458, s. 7 Section 7. 23.33 (4c) (b) 4. of the statutes is renumbered 23.33 (4c) (b) 4. a. and amended to read:

AB458,5,21 23.33 (4c) (b) 4. a. `Defenses.' In an action under this paragraph, the defendant has a defense if he or she proves by a preponderance of the evidence that the injury 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 0.1 or more, or did not have a detectable amount of a restricted controlled substance in his or her blood.

AB458, s. 8 Section 8. 23.33 (4c) (b) 4. b. of the statutes is created to read:

AB458,6,3 23.33 (4c) (b) 4. b. In an action under subd. 2m. that is based on the defendant allegedly having a detectable amount of methamphetamine or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors or delta-9-tetrahydrocannabinol.

AB458, s. 9 Section 9. 23.33 (4p) (d) of the statutes is amended to read:

AB458,6,14 23.33 (4p) (d) Admissibility; effect of test results; other evidence. The results of a chemical test required or administered under par. (a), (b) or (c) are admissible in any civil or criminal action or proceeding arising out of the acts committed by a person alleged to have violated the intoxicated operation of an all-terrain vehicle law on the issue of whether the person was under the influence of an intoxicant or the issue of whether the person had alcohol concentrations at or above specified levels or a detectable amount of a restricted controlled substance in his or her blood. Results of these chemical tests shall be given the effect required under s. 885.235. This subsection does not limit the right of a law enforcement officer to obtain evidence by any other lawful means.

AB458, s. 10 Section 10. 23.33 (13) (b) 1. of the statutes is amended to read:

AB458,6,18 23.33 (13) (b) 1. Except as provided under subds. 2. and 3., a person who violates sub. (4c) (a) 1. or, 2., or 2m. or (4p) (e) shall forfeit not less than $150 nor more than $300.

AB458, s. 11 Section 11. 23.33 (13) (b) 2. of the statutes is amended to read:

AB458,6,24 23.33 (13) (b) 2. Except as provided under subd. 3., a person who violates sub. (4c) (a) 1. or, 2., or 2m. or (4p) (e) and who, within 5 years prior to the arrest for the current violation, was convicted previously under the intoxicated operation of an all-terrain vehicle law or the refusal law shall be fined not less than $300 nor more than $1,000 and shall be imprisoned not less than 5 days nor more than 6 months.

AB458, s. 12 Section 12. 23.33 (13) (b) 3. of the statutes is amended to read:

AB458,7,5 23.33 (13) (b) 3. A person who violates sub. (4c) (a) 1. or, 2., or 2m. or (4p) (e) and who, within 5 years prior to the arrest for the current violation, was convicted 2 or more times previously under the intoxicated operation of an all-terrain vehicle law or refusal law shall be fined not less than $600 nor more than $2,000 and shall be imprisoned not less than 30 days nor more than one year in the county jail.

AB458, s. 13 Section 13. 30.50 (10m) of the statutes is created to read:

AB458,7,7 30.50 (10m) "Restricted controlled substance" means any of the following:

AB458,7,9 (a) A controlled substance included in schedule I under ch. 961 other than a tetrahydrocannabinol.

AB458,7,11 (b) A controlled substance analog, as defined in s. 961.01 (4m), of a controlled substance described in par. (a).

AB458,7,12 (c) Cocaine or any of its metabolites.

AB458,7,13 (d) Methamphetamine.

AB458,7,14 (e) Delta-9-tetrahydrocannabinol.

AB458, s. 14 Section 14. 30.681 (1) (b) (title) of the statutes is amended to read:

AB458,7,17 30.681 (1) (b) (title) Operating with after using a controlled substance or alcohol concentrations at or above specified levels.

AB458, s. 15 Section 15. 30.681 (1) (b) 1m. of the statutes is created to read:

AB458,7,21 30.681 (1) (b) 1m. No person may engage in the operation of a motorboat while the person has a detectable amount of a restricted controlled substance in his or her blood.

AB458, s. 16 Section 16. 30.681 (1) (c) of the statutes is amended to read:

AB458,8,7 30.681 (1) (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 any combination of par. (a) or (b) 1., 1m., or 2. for acts arising out of the same incident or occurrence. If the person is charged with violating both pars. (a) and (b) any combination of par. (a) or (b) 1., 1m., or 2., the offenses shall be joined. If the person is found guilty of both pars. (a) and (b) any combination of par. (a) or (b) 1., 1m., or 2. 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. 30.80 (6) (a) 2. and 3. Paragraphs (a) and (b) 1., 1m., and 2. each require proof of a fact for conviction which the other does others do not require.

AB458, s. 17 Section 17. 30.681 (1) (d) of the statutes is created to read:

AB458,8,14 30.681 (1) (d) Defenses. In an action under par. (b) 1m. that is based on the defendant allegedly having a detectable amount of methamphetamine or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors or delta-9-tetrahydrocannabinol.

AB458, s. 18 Section 18. 30.681 (2) (b) (title) of the statutes is amended to read:

AB458,8,17 30.681 (2) (b) (title) Causing injury with after using a controlled substance or alcohol concentrations at or above specified levels.

AB458, s. 19 Section 19. 30.681 (2) (b) 1m. of the statutes is created to read:

AB458,8,21 30.681 (2) (b) 1m. No person who has a detectable amount of a restricted controlled substance in his or her blood may cause injury to another person by the operation of a motorboat.

AB458, s. 20 Section 20. 30.681 (2) (c) of the statutes is amended to read: