LRB-0465/3
PJH&MGD:jd&wlj:jf
2003 - 2004 LEGISLATURE
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
1An Act to renumber and amend 23.33 (4c) (b) 4., 30.681 (2) (d) 1., 343.305 (8)
2(b) 5., 346.63 (2) (b), 350.101 (2) (d), 940.09 (1m), 940.09 (2), 940.25 (1m), 940.25
3(2) and 967.055 (1m);
to amend 23.33 (4c) (a) 4., 23.33 (4c) (b) 3., 23.33 (4p) (d),
423.33 (13) (b) 1., 23.33 (13) (b) 2., 23.33 (13) (b) 3., 30.681 (1) (b) (title), 30.681
5(1) (c), 30.681 (2) (b) (title), 30.681 (2) (c), 30.684 (4), 343.305 (7) (a), 343.305 (8)
6(b) 2. bm. and d., 343.305 (9) (a) 5. a., 343.307 (1) (d), 343.307 (2) (e), 343.307
7(3), 343.31 (1) (am), 343.31 (2), 343.315 (2) (a) 5., 343.315 (2) (a) 6., 344.576 (2)
8(b), 346.63 (1) (c), 346.63 (2) (am), 346.65 (2g) (c), 346.65 (2m) (a), 346.65 (6) (a)
91., 346.65 (6) (c), 346.65 (6) (d), 350.101 (1) (d), 350.101 (2) (c), 350.104 (4),
10350.11 (3) (a) 1., 350.11 (3) (a) 2., 350.11 (3) (a) 3., 351.02 (1) (a) 10., 885.235 (4),
11939.75 (1), 939.75 (2) (b), 939.75 (3) (intro.), 940.09 (1d) (a) 1., 940.09 (1d) (a) 2.,
12940.09 (1d) (b), 940.25 (1d) (a) 1., 940.25 (1d) (a) 2., 940.25 (1d) (b), 949.08 (2)
13(e), 949.08 (2) (em), 967.055 (1) (a) and 967.055 (2) (a); and
to create 23.33 (1)
14(jo), 23.33 (4c) (a) 2m., 23.33 (4c) (a) 5., 23.33 (4c) (b) 2m., 23.33 (4c) (b) 4. b.,
130.50 (10m), 30.681 (1) (b) 1m., 30.681 (1) (d), 30.681 (2) (b) 1m., 30.681 (2) (d)
21. b., 340.01 (50m), 343.305 (5) (e), 343.305 (8) (b) 2. g., 343.305 (8) (b) 4m.,
3343.305 (8) (b) 5. a., 343.305 (8) (b) 5. b., 343.305 (8) (b) 5. c., 343.305 (8) (b) 6.
4a., 343.305 (8) (b) 6. b., 343.305 (8) (b) 6. c., 343.315 (2) (a) 1m., 346.63 (1) (am),
5346.63 (1) (d), 346.63 (2) (a) 3., 346.63 (2) (b) 2., 350.01 (10v), 350.101 (1) (bm),
6350.101 (1) (e), 350.101 (2) (bm), 350.101 (2) (d) 2., 885.235 (1) (d), 885.235 (1k),
7939.22 (33), 940.09 (1) (am), 940.09 (1) (cm), 940.09 (1g) (am), 940.09 (1g) (cm),
8940.09 (2) (b), 940.25 (1) (am), 940.25 (1) (cm), 940.25 (2) (b), 941.20 (1) (bm) and
9967.055 (1m) (b) of the statutes;
relating to: operating a vehicle or operating
10or going armed with a firearm after using certain controlled substances and
11providing 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
1Section
1. 23.33 (1) (jo) of the statutes is created to read:
AB458,3,22
23.33
(1) (jo) "Restricted controlled substance" means any of the following:
AB458,3,43
1. A controlled substance included in schedule I under ch. 961 other than a
4tetrahydrocannabinol.
AB458,3,65
2. A controlled substance analog, as defined in s. 961.01 (4m), of a controlled
6substance described in subd. 1.
AB458,3,77
3. Cocaine or any of its metabolites.
AB458,3,88
4. Methamphetamine.
AB458,3,99
5. Delta-9-tetrahydrocannabinol.
AB458, s. 2
1Section
2. 23.33 (4c) (a) 2m. of the statutes is created to read:
AB458,4,42
23.33
(4c) (a) 2m. `Operating with a restricted controlled substance.' No person
3may engage in the operation of an all-terrain vehicle while the person has a
4detectable amount of a restricted controlled substance in his or her blood.
AB458, s. 3
5Section
3. 23.33 (4c) (a) 4. of the statutes is amended to read:
AB458,4,156
23.33
(4c) (a) 4. `Related charges.' A person may be charged with and a
7prosecutor may proceed upon a complaint based upon a violation of
subd. 1. or 2. or
8both any combination of subd. 1., 2., or 2m. for acts arising out of the same incident
9or occurrence. If the person is charged with violating
both subds. 1. and 2. any
10combination of subd. 1., 2., or 2m., the offenses shall be joined. If the person is found
11guilty of
both subds. 1. and 2. any combination of subd. 1., 2., or 2m. for acts arising
12out of the same incident or occurrence, there shall be a single conviction for purposes
13of sentencing and for purposes of counting convictions under sub. (13) (b) 2. and 3.
14Subdivisions 1.
and, 2.
, and 2m. each require proof of a fact for conviction which the
15other does others do not require.
AB458, s. 4
16Section
4. 23.33 (4c) (a) 5. of the statutes is created to read:
AB458,4,2217
23.33
(4c) (a) 5. `Defenses.' In an action under subd. 2m. that is based on the
18defendant allegedly having a detectable amount of methamphetamine or
19delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he
20or she proves by a preponderance of the evidence that at the time of the incident or
21occurrence he or she had a valid prescription for methamphetamine or one of its
22metabolic precursors or delta-9-tetrahydrocannabinol.
AB458, s. 5
23Section
5. 23.33 (4c) (b) 2m. of the statutes is created to read:
AB458,5,224
23.33
(4c) (b) 2m. `Causing injury while operating with a restricted controlled
25substance.' No person who has a detectable amount of a restricted controlled
1substance in his or her blood may cause injury to another person by the operation of
2an all-terrain vehicle.
AB458, s. 6
3Section
6. 23.33 (4c) (b) 3. of the statutes is amended to read:
AB458,5,134
23.33
(4c) (b) 3. `Related charges.' A person may be charged with and a
5prosecutor may proceed upon a complaint based upon a violation of
subd. 1. or 2. or
6both any combination of subd. 1., 2., or 2m. for acts arising out of the same incident
7or occurrence. If the person is charged with violating
both subds. 1. and 2. any
8combination of subd. 1., 2., or 2m. in the complaint, the crimes shall be joined under
9s. 971.12. If the person is found guilty of
both subds. 1. and 2. any combination of
10subd. 1, 2., or 2m. for acts arising out of the same incident or occurrence, there shall
11be a single conviction for purposes of sentencing and for purposes of counting
12convictions under sub. (13) (b) 2. and 3. Subdivisions 1.
and, 2.
, and 2m. each require
13proof of a fact for conviction which the
other does
others do not require.
AB458, s. 7
14Section
7. 23.33 (4c) (b) 4. of the statutes is renumbered 23.33 (4c) (b) 4. a. and
15amended to read:
AB458,5,2116
23.33
(4c) (b) 4. a. `Defenses.' In an action under this paragraph, the defendant
17has a defense if he or she proves by a preponderance of the evidence that the injury
18would have occurred even if he or she had been exercising due care and he or she had
19not been under the influence of an intoxicant
or, did not have an alcohol
20concentration of 0.1 or more
, or did not have a detectable amount of a restricted
21controlled substance in his or her blood.
AB458, s. 8
22Section
8. 23.33 (4c) (b) 4. b. of the statutes is created to read:
AB458,6,323
23.33
(4c) (b) 4. b. In an action under subd. 2m. that is based on the defendant
24allegedly having a detectable amount of methamphetamine or
25delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he
1or she proves by a preponderance of the evidence that at the time of the incident or
2occurrence he or she had a valid prescription for methamphetamine or one of its
3metabolic precursors or delta-9-tetrahydrocannabinol.
AB458, s. 9
4Section
9. 23.33 (4p) (d) of the statutes is amended to read:
AB458,6,145
23.33
(4p) (d)
Admissibility; effect of test results; other evidence. The results
6of a chemical test required or administered under par. (a), (b) or (c) are admissible
7in any civil or criminal action or proceeding arising out of the acts committed by a
8person alleged to have violated the intoxicated operation of an all-terrain vehicle law
9on the issue of whether the person was under the influence of an intoxicant or the
10issue of whether the person had alcohol concentrations at or above specified levels
11or a detectable amount of a restricted controlled substance in his or her blood.
12Results of these chemical tests shall be given the effect required under s. 885.235.
13This subsection does not limit the right of a law enforcement officer to obtain
14evidence by any other lawful means.
AB458, s. 10
15Section
10. 23.33 (13) (b) 1. of the statutes is amended to read:
AB458,6,1816
23.33
(13) (b) 1. Except as provided under subds. 2. and 3., a person who
17violates sub. (4c) (a) 1.
or, 2.
, or 2m. or (4p) (e) shall forfeit not less than $150 nor more
18than $300.
AB458, s. 11
19Section
11. 23.33 (13) (b) 2. of the statutes is amended to read:
AB458,6,2420
23.33
(13) (b) 2. Except as provided under subd. 3., a person who violates sub.
21(4c) (a) 1.
or, 2.
, or 2m. or (4p) (e) and who, within 5 years prior to the arrest for the
22current violation, was convicted previously under the intoxicated operation of an
23all-terrain vehicle law or the refusal law shall be fined not less than $300 nor more
24than $1,000 and shall be imprisoned not less than 5 days nor more than 6 months.
AB458, s. 12
25Section
12. 23.33 (13) (b) 3. of the statutes is amended to read:
AB458,7,5
123.33
(13) (b) 3. A person who violates sub. (4c) (a) 1.
or, 2.
, or 2m. or (4p) (e)
2and who, within 5 years prior to the arrest for the current violation, was convicted
32 or more times previously under the intoxicated operation of an all-terrain vehicle
4law or refusal law shall be fined not less than $600 nor more than $2,000 and shall
5be imprisoned not less than 30 days nor more than one year in the county jail.
AB458, s. 13
6Section
13. 30.50 (10m) of the statutes is created to read:
AB458,7,77
30.50
(10m) "Restricted controlled substance" means any of the following:
AB458,7,98
(a) A controlled substance included in schedule I under ch. 961 other than a
9tetrahydrocannabinol.
AB458,7,1110
(b) A controlled substance analog, as defined in s. 961.01 (4m), of a controlled
11substance described in par. (a).
AB458,7,1212
(c) Cocaine or any of its metabolites.
AB458,7,1313
(d) Methamphetamine.
AB458,7,1414
(e) Delta-9-tetrahydrocannabinol.
AB458, s. 14
15Section
14. 30.681 (1) (b) (title) of the statutes is amended to read:
AB458,7,1716
30.681
(1) (b) (title)
Operating with after using a controlled substance or alcohol
17concentrations at or above specified levels.
AB458, s. 15
18Section
15. 30.681 (1) (b) 1m. of the statutes is created to read:
AB458,7,2119
30.681
(1) (b) 1m. No person may engage in the operation of a motorboat while
20the person has a detectable amount of a restricted controlled substance in his or her
21blood.
AB458, s. 16
22Section
16. 30.681 (1) (c) of the statutes is amended to read:
AB458,8,723
30.681
(1) (c)
Related charges. A person may be charged with and a prosecutor
24may proceed upon a complaint based upon a violation of
par. (a) or (b) or both any
25combination of par. (a) or (b) 1., 1m., or 2. for acts arising out of the same incident or
1occurrence. If the person is charged with violating
both pars. (a) and (b) any
2combination of par. (a) or (b) 1., 1m., or 2., the offenses shall be joined. If the person
3is found guilty of
both pars. (a) and (b) any combination of par. (a) or (b) 1., 1m., or
42. for acts arising out of the same incident or occurrence, there shall be a single
5conviction for purposes of sentencing and for purposes of counting convictions under
6s. 30.80 (6) (a) 2. and 3. Paragraphs (a) and (b)
1., 1m., and 2. each require proof of
7a fact for conviction which the
other does others do not require.
AB458, s. 17
8Section
17. 30.681 (1) (d) of the statutes is created to read:
AB458,8,149
30.681
(1) (d)
Defenses. In an action under par. (b) 1m. that is based on the
10defendant allegedly having a detectable amount of methamphetamine or
11delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he
12or she proves by a preponderance of the evidence that at the time of the incident or
13occurrence he or she had a valid prescription for methamphetamine or one of its
14metabolic precursors or delta-9-tetrahydrocannabinol.
AB458, s. 18
15Section
18. 30.681 (2) (b) (title) of the statutes is amended to read:
AB458,8,1716
30.681
(2) (b) (title)
Causing injury
with after using a controlled substance or
17alcohol concentrations at or above specified levels.
AB458, s. 19
18Section
19. 30.681 (2) (b) 1m. of the statutes is created to read:
AB458,8,2119
30.681
(2) (b) 1m. No person who has a detectable amount of a restricted
20controlled substance in his or her blood may cause injury to another person by the
21operation of a motorboat.
AB458, s. 20
22Section
20. 30.681 (2) (c) of the statutes is amended to read:
AB458,9,823
30.681
(2) (c)
Related charges. A person may be charged with and a prosecutor
24may proceed upon a complaint based upon a violation of
par. (a) or (b) or both any
25combination of par. (a) or (b) 1., 1m., or 2. for acts arising out of the same incident or
1occurrence. If the person is charged with violating
both pars. (a) and (b) any
2combination of par. (a) or (b) 1., 1m., or 2. in the complaint, the crimes shall be joined
3under s. 971.12. If the person is found guilty of
both pars. (a) and (b) any combination
4of par. (a) or (b) 1., 1m., or 2. for acts arising out of the same incident or occurrence,
5there shall be a single conviction for purposes of sentencing and for purposes of
6counting convictions under s. 30.80 (6) (a) 2. and 3. Paragraphs (a) and (b)
1., 1m.,
7and 2. each require proof of a fact for conviction which the
other does others do not
8require.
AB458, s. 21
9Section
21. 30.681 (2) (d) 1. of the statutes is renumbered 30.681 (2) (d) 1. a.
10and amended to read:
AB458,9,1711
30.681
(2) (d) 1. a. In an action under this subsection for a violation of the
12intoxicated boating law where the defendant was operating a motorboat that is not
13a commercial motorboat, the defendant has a defense if he or she proves by a
14preponderance of the evidence that the injury would have occurred even if he or she
15had been exercising due care and he or she had not been under the influence of an
16intoxicant or did not have an alcohol concentration of 0.1 or more
or a detectable
17amount of a restricted controlled substance in his or her blood.
AB458, s. 22
18Section
22. 30.681 (2) (d) 1. b. of the statutes is created to read:
AB458,9,2419
30.681
(2) (d) 1. b. In an action under par. (b) 1m. that is based on the defendant
20allegedly having a detectable amount of methamphetamine or
21delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he
22or she proves by a preponderance of the evidence that at the time of the incident or
23occurrence he or she had a valid prescription for methamphetamine or one of its
24metabolic precursors or delta-9-tetrahydrocannabinol.
AB458, s. 23
25Section
23. 30.684 (4) of the statutes is amended to read:
AB458,10,9
130.684
(4) Admissibility; effect of test results; other evidence. The results
2of a chemical test required or administered under sub. (1), (2) or (3) are admissible
3in any civil or criminal action or proceeding arising out of the acts committed by a
4person alleged to have violated the intoxicated boating law on the issue of whether
5the person was under the influence of an intoxicant or the issue of whether the person
6had alcohol concentrations at or above specified levels
or a detectable amount of a
7restricted controlled substance in his or her blood. Results of these chemical tests
8shall be given the effect required under s. 885.235. This section does not limit the
9right of a law enforcement officer to obtain evidence by any other lawful means.