AB670: Bill Text

2011 - 2012 LEGISLATURE

2011 Assembly BILL 670

March 6, 2012 - Introduced by Representatives Krusick, J. Ott, Bies, Berceau, Kooyenga and A. Ott, by request of Paul and Judy Jenkins of Mequon (in memory of Jennifer Bukosky, Courtney Bella and Sophia Bukosky). Referred to Committee on Criminal Justice and Corrections.

AB670,1,12 An Act to repeal 346.65 (2) (f) 1. and 346.65 (2g) (d); to renumber and amend 340.01 (46m) (c) and 346.65 (2) (f) 2.; to amend 302.372 (2) (a) (intro.), 340.01 (46m) (a), 345.20 (2) (c), 345.24 (1), 346.65 (2) (am) 1., 346.65 (2c), 346.65 (2e), 346.65 (2g) (a), 346.65 (2g) (ag), 346.65 (2g) (am), 346.65 (2i), 349.02 (2) (a), 753.19, 969.01 (2) (a), 972.11 (3m) and 973.15 (8) (a) 3.; and to create 16.185, 20.435 (5) (q), 20.475 (1) (q), 20.505 (6) (q), 20.550 (1) (q), 20.625 (1) (q), 25.975, 46.03 (45), 139.27, 165.85 (4r), 340.01 (46m) (c) 1., 340.01 (46m) (c) 2., 340.01 (46m) (c) 3., 345.24 (1m), 345.24 (3), 346.65 (2) (h), 977.02 (2g) and 978.05 (1p) of the statutes; relating to: offenses related to operating a vehicle while intoxicated, releasing persons arrested for offenses related to operating a vehicle while intoxicated, granting rule-making authority, and providing a penalty.

Analysis by the Legislative Reference Bureau

This bill makes a number of changes relating to operating a vehicle while under the influence of an intoxicant (OWI-related offense), including the following:

1. Under current law, a first OWI-related offense is a civil violation, unless there was a minor passenger under the age of 16 in the vehicle at the time of the offense. A person who commits a civil OWI-related offense is subject to a forfeiture of not less than $150 nor more than $300. Subsequent OWI-related offenses are crimes punishable by fines and periods of imprisonment that increase with every subsequent offense.

Under this bill, a person who commits a first OWI-related offense on or after July 1, 2013, is guilty of a Class C misdemeanor and may be fined not more than $500, imprisoned for not more than 30 days, or both.

Under the bill, if a person is subject to a minimum period of imprisonment for any OWI-related offense, the person is not eligible for home detention, good time, release from jail for employment, transfer to a county work camp, release to perform community service except under special circumstances, probation, or diminution of the sentence until he or she serves at least the minimum period of time in jail or prison.

2. Under current law, with few exceptions, a law enforcement officer may not stop a motor vehicle without reasonable cause to believe that the operator of the motor vehicle has violated a law or ordinance.

This bill requires the Law Enforcement Standards Board (LESB) to establish rules for a sobriety checkpoint program and requires local law enforcement agencies to comply with the rules whenever they conduct a sobriety checkpoint. When a law enforcement agency conducts a sobriety checkpoint, drivers are briefly stopped without individualized suspicion that they may be intoxicated, and drivers who demonstrate some level of impairment or other signs of drug or alcohol use are detained for additional testing and possible arrest.

The bill requires the LESB rules to ensure that drivers are stopped in a neutral, nondiscretionary manner and that the initial stops are conducted in a way that minimizes the disruption of traffic flow and minimizes the amount of time the driver is stopped. The rules must also ensure that the sobriety checkpoint has fixed beginning and ending times, and is publicized before it is conducted. The rules must ensure that, at the sobriety checkpoint, approaching drivers are given adequate warning that a sobriety checkpoint is underway, and that officers clearly identify themselves and explain the purpose of the sobriety checkpoint to each driver they stop. Finally, the rules must establish criteria for determining which drivers may be detained beyond the initial stop to undergo testing for intoxication.

3. Under current law, counties may seek reimbursement from persons who are sentenced to a county jail or placed on probation and confined in jail, for the costs the counties incur in relation to the crime for which the persons are sentenced to jail or placed on probation. The counties may also seek reimbursement from other sources, but they cannot collect for the same costs twice.

The bill requires counties to seek reimbursement from persons sentenced to a county jail or placed on probation and confined in jail.

4. Currently, revenues generated from the wine and liquor tax are deposited into the general fund.

Under this bill, beginning on July 1, 2013, $10,000,000 from revenues generated by the wine and liquor tax are deposited into the intoxicated and drugged drivers fund. The bill requires the Department of Administration, the Public Defender Board, the Department of Health Services, and the director of state courts to prepare budget requests that would allocate funds from the intoxicated and drugged drivers fund to pay costs incurred by district attorneys, public defenders, circuit courts, and counties in relation to prosecuting first OWI-related offenses and providing treatment programs for offenders.

5. Under current law, no person may operate a motor vehicle with a prohibited alcohol concentration. For most operators, the prohibited alcohol concentration is 0.08 or more. However, if a person is subject to a court order that requires his or her vehicle to be equipped with an ignition interlock device or if he or she has committed three or more OWI-related violations, the prohibited alcohol concentration for that person is more than 0.02.

This bill adds a definition of a prohibited alcohol concentration as an alcohol concentration of more than 0.02 for the two-year period after a person has committed a first or second OWI-related offense.

6. Under current law, a trial court may, at its discretion, release a person who has been convicted of a crime from imprisonment until the time of sentencing, unless the person was convicted of a 3rd or subsequent OWI-related offense. Current law also allows a sentencing court to delay the execution of a sentence of imprisonment for up to 60 days, unless the person was convicted of a third or subsequent OWI-related offense or the court finds that there is legal cause to delay the execution of the sentence for a longer period or unless the court places the person on probation.

Under this bill, if a person has been convicted of any OWI-related offense, and the conviction carries a minimum period of imprisonment, a court may not release the person after conviction but before sentencing until after the person has served at least the minimum period of imprisonment. Under the bill, a court may not delay the execution of a sentence of imprisonment for an OWI-related offense unless the court finds that there is legal cause to delay the execution of the sentence or unless the court places the person on probation.

7. Under current law, a person arrested for certain OWI-related offenses may not be released from police custody until 12 hours have elapsed from the time of his or her arrest or unless a chemical test shows that the person has an alcohol concentration of less than 0.04 except that the person may be released to his or her attorney, spouse, relative, or other responsible adult (responsible party) at any time after arrest.

Under this bill, a person may be released to a responsible party if the responsible party signs a form acknowledging that he or she accepts legal responsibility for the actions of the arrested person for 12 hours after the time the person was arrested and that, if the arrested person is arrested for another OWI-related offense within that period, the responsible party may be guilty of a Class C misdemeanor. In addition, the bill requires a law enforcement officer to seize or immobilize the vehicle used in the incident that gave rise to the arrest for 12 hours, except that, if the vehicle is the only vehicle owned or leased by any member of the arrested person's household, the officer may release the vehicle to a member of the household.

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.

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:

AB670, s. 1 Section 1. 16.185 of the statutes is created to read:

AB670,4,5 16.185 Assistance to counties; operating while intoxicated. From the appropriation under s. 20.505 (6) (q), the department may make payments to counties for costs incurred relating to persons charged with offenses that are punishable under s. 346.65 (2) (am) 1.

AB670, s. 2 Section 2. 20.435 (5) (q) of the statutes is created to read:

AB670,4,9 20.435 (5) (q) Intoxicated and drugged driving assistance programs. From the intoxicated and drugged drivers fund, the amounts in the schedule for intoxicated and drugged driving programs administered under s. 46.03 (45).

AB670, s. 3 Section 3. 20.475 (1) (q) of the statutes is created to read:

AB670,4,13 20.475 (1) (q) Prosecutions related to operating while intoxicated. From the intoxicated and drugged drivers fund, the amounts in the schedule for prosecutions under s. 978.05 (1p).

AB670, s. 4 Section 4. 20.505 (6) (q) of the statutes is created to read:

AB670,4,17 20.505 (6) (q) Assistance to counties related to operating while intoxicated. From the intoxicated and drugged drivers fund, the amounts in the schedule to reimburse counties under s. 16.185.

AB670, s. 5 Section 5. 20.550 (1) (q) of the statutes is created to read:

AB670,5,3 20.550 (1) (q) Representation related to operating while intoxicated. From the intoxicated and drugged drivers fund, the amounts in the schedule for representation under s. 977.02 (2g).

AB670, s. 6 Section 6. 20.625 (1) (q) of the statutes is created to read:

AB670,5,7 20.625 (1) (q) Operation costs related to operating while intoxicated. From the intoxicated and drugged drivers fund, the amounts in the schedule for circuit court costs under s. 753.19.

AB670, s. 7 Section 7. 25.975 of the statutes is created to read:

AB670,5,11 25.975 Intoxicated and drugged drivers fund. There is established a separate nonlapsible trust fund designated as the intoxicated and drugged drivers fund, to consist of all moneys received under s. 139.27.

AB670, s. 8 Section 8. 46.03 (45) of the statutes is created to read:

AB670,5,15 46.03 (45) Intoxicated and drugged driving. From the appropriation under s. 20.435 (5) (q), provide services to persons charged with offenses that are punishable under s. 346.65 (2) (am) 1.

AB670, s. 9 Section 9. 139.27 of the statutes is created to read:

AB670,5,19 139.27 Revenue distribution. The first $10,000,000 collected in each fiscal year from the taxes imposed under s. 139.03 shall be deposited into the fund created under s. 25.975.

AB670, s. 10 Section 10. 165.85 (4r) of the statutes is created to read:

AB670,5,24 165.85 (4r) Sobriety checkpoints. (a) The board shall promulgate rules for administering a sobriety checkpoint program that are consistent with par. (b). No local authority may conduct a sobriety checkpoint program that does not comply with the rules established under this subsection.

AB670,5,25 (b) A sobriety checkpoint program shall do all of the following:

AB670,6,2 1. Establish a nondiscretionary system for determining which motor vehicles are stopped at the checkpoint.

AB670,6,3 2. Minimize the length of time a motor vehicle is stopped.

AB670,6,6 3. Give public notice that a sobriety checkpoint program will be in effect no more than 5 days before the law enforcement agency conducts the sobriety checkpoint.

AB670,6,8 4. Give adequate warning to motor vehicle operators approaching the sobriety checkpoint that a sobriety checkpoint is being conducted.

AB670,6,10 5. Minimize the disruption of regular traffic flow while the sobriety checkpoint is being conducted.

AB670,6,12 6. Establish criteria for a motor vehicle operator to be detained beyond the initial stop at the sobriety checkpoint for a test under s. 343.305.

AB670,6,13 7. Establish a fixed period of time for each sobriety checkpoint to be conducted.

AB670,6,15 8. Require law enforcement officers to do all of the following at a sobriety checkpoint:

AB670,6,17 a. Wear an official uniform that clearly identifies him or her as a law enforcement officer.

AB670,6,19 b. Identify himself or herself as a law enforcement officer to each motor vehicle operator that is stopped at the sobriety checkpoint.

AB670,6,21 c. Explain the purpose of the sobriety checkpoint to each motor vehicle operator that is stopped at the sobriety checkpoint.

AB670, s. 11 Section 11. 302.372 (2) (a) (intro.) of the statutes is amended to read:

AB670,7,2 302.372 (2) (a) (intro.) Except as provided in pars. (c) and (d), a county may shall seek reimbursement for any expenses incurred by the county in relation to the crime for which a person was sentenced to a county jail, or for which the person was placed on probation and confined in jail, as follows:

AB670, s. 12 Section 12. 340.01 (46m) (a) of the statutes is amended to read:

AB670,7,6 340.01 (46m) (a) If the person has 2 or fewer no prior convictions, suspensions, or revocations violation, conviction, suspension, or revocation or if par. (c) does not apply, as counted under s. 343.307 (1), an alcohol concentration of 0.08 or more.

AB670, s. 13 Section 13. 340.01 (46m) (c) of the statutes is renumbered 340.01 (46m) (c) (intro.) and amended to read:

AB670,7,12 340.01 (46m) (c) (intro.) If the person is subject to an order under s. 343.301 or if the person has 3 or more prior convictions, suspensions or revocations, as counted under s. 343.307 (1), an An alcohol concentration of more than 0.02. if any of the following applies:

AB670, s. 14 Section 14. 340.01 (46m) (c) 1. of the statutes is created to read:

AB670,7,14 340.01 (46m) (c) 1. The person is subject to an order under s. 343.301.

AB670, s. 15 Section 15. 340.01 (46m) (c) 2. of the statutes is created to read:

AB670,7,17 340.01 (46m) (c) 2. The person has one or 2 prior convictions, suspensions, or revocations, as counted under s. 343.307 (1), within 2 years of the current offense.

AB670, s. 16 Section 16. 340.01 (46m) (c) 3. of the statutes is created to read:

AB670,7,20 340.01 (46m) (c) 3. The person has 3 or more prior convictions, suspensions, or revocations, as counted under s. 343.307 (1).

AB670, s. 17 Section 17. 345.20 (2) (c) of the statutes is amended to read:

AB670,7,24 345.20 (2) (c) Sections 967.055 and 972.11 (3m) apply to traffic forfeiture actions for violations of s. 346.63 (1) or (5) or a local ordinance in conformity therewith.

AB670, s. 18 Section 18. 345.24 (1) of the statutes is amended to read:

AB670,8,7 345.24 (1) A Except as provided in sub. (1m) (a), a person arrested under s. 346.63 (1) or (5) or an ordinance in conformity therewith with s. 346.63 (5) or s. 346.63 (2) or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, may not be released until 12 hours have elapsed from the time of his or her arrest or unless a chemical test administered under s. 343.305 shows that the person has an alcohol concentration of less than 0.04, but the person may be released to his or her attorney, spouse, relative or other responsible adult at any time after arrest.

AB670, s. 19 Section 19. 345.24 (1m) of the statutes is created to read:

AB670,8,14 345.24 (1m) (a) An officer may release the arrested person to his or her attorney, spouse, relative, or other responsible adult if the person to whom the arrested person is released accepts, in writing, legal responsibility for the actions of the arrested person for 12 hours after the time of the arrest and acknowledges the penalty set forth in sub. (3). Except as provided in par. (b), the officer shall seize or immobilize the vehicle used in the offense for 12 hours after the time of the arrest.

AB670,8,18 (b) An officer may release the vehicle used in the offense to a member of the arrested person's household if the member of the household is licensed to operate the vehicle and the vehicle is the only vehicle owned or leased by any member of the arrested person's household.

AB670, s. 20 Section 20. 345.24 (3) of the statutes is created to read:

AB670,8,25 345.24 (3) If, subsequent to being released under sub. (1m), the arrested person is convicted of a violation of s. 346.63 (1) or (5) or an ordinance in conformity with s. 346.63 (5) or s. 346.63 (2) or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, and the violation occurred within 12 hours after the person was arrested, the attorney, spouse, relative, or other responsible adult to whom the arrested person was released is guilty of a Class C misdemeanor.

AB670, s. 21 Section 21. 346.65 (2) (am) 1. of the statutes is amended to read:

AB670,9,3 346.65 (2) (am) 1. Shall forfeit not less than $150 nor more than $300, except Except as provided in subds. 2. to 5. 7. and par. (f), is guilty of a Class C misdemeanor.