Amendment ASA1-AB528

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2007 - 2008 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 2007 ASSEMBLY BILL 528

February 19, 2008 - Offered by Representative Zepnick.

AB528-ASA1,1,10 An Act to amend 165.755 (1) (b), 302.46 (1) (a), 341.08 (4m), 341.10 (7m), 345.20 (1) (b), 345.20 (2) (d), 345.26 (1) (a), 345.28 (title), 345.28 (2) (a) and (b), 345.28 (3), 345.28 (4) (a) 1., 345.28 (4) (e) 1., 345.28 (4) (i), 345.28 (5) (a), 345.28 (5) (b) 2. (intro.) and a., 345.28 (5) (c) 1. and 2., 345.28 (7), 345.30, 345.31, 345.315 (1), 345.36 (3), 345.37 (1) (b), 345.47 (1) (b), 752.31 (2) (c), 757.05 (1) (a), 778.103, 785.05, 800.09 (1) (c), 800.095 (4) (b) 4. and 938.17 (1) (intro.); and to create 345.28 (1) (d) and 349.107 of the statutes; relating to: the use of traffic control photographic systems to monitor intersections, imposing liability on the owners of vehicles involved in traffic control signal violations, and providing a penalty.

Analysis by the Legislative Reference Bureau

Under current law, the governing body of a municipality may not enact a traffic ordinance unless the ordinance strictly conforms to current state traffic law or the ordinance is expressly authorized by law. State law imposes liability on the owner of a vehicle that is observed violating certain laws or local ordinances, including laws or local ordinances that prohibit fleeing a traffic officer, failing to yield the right-of-way to an emergency vehicle or funeral procession, passing a fire truck or school bus, and parking in a parking space designated for vehicles with special registration plates.

This substitute amendment authorizes the governing body of a county, city, village, or town to enact an ordinance that permits the use of a traffic control photographic system (TCPS) on highways under the jurisdiction of the county, city, village, or town to detect and identify motor vehicles that fail to stop at red traffic signals at intersections and to wait for a green signal (red light violations). A TCPS is defined as an electronic system that consists of a photographic, video, or electronic camera and a vehicle sensor that work in conjunction with a traffic control signal to automatically produce photographs, stamped with the time and date, of motor vehicles traveling through an intersection. With exceptions, the vehicle owner is subject to a forfeiture for the red light violation detected by a TCPS, but if the vehicle owner successfully asserts certain defenses, the lessee or operator of the vehicle is subject to a forfeiture for the violation. The substitute amendment requires the ordinance to include a provision that allows a traffic officer employed by the county, city, village, or town to issue a citation to the owner of a vehicle for a red light violation that is detected by a TCPS or, in limited circumstances, to the operator of such a vehicle. The ordinance must require the local authority to send to the owner, or in limited circumstances the lessee or operator, of the vehicle, by certified mail, the traffic citation and a duplicate of the photograph, video, or digital image of the vehicle failing to stop at a red traffic signal. The ordinance also must require that any photograph or other image produced by the TCPS be focused on the rear license plate of the vehicles moving through an intersection. The governing body of a county, city, village, or town that uses a TCPS is required to erect signs at a sufficient distance from an intersection monitored by a TCPS to warn motor vehicle operators that the intersection is monitored by a TCPS.

If an owner is issued a traffic citation for a violation of the local ordinance, it is not a defense that the owner was not in control of the vehicle at the time of the violation, except that the owner may assert the following defenses:

1. The vehicle was reported stolen before the violation occurred or within a reasonable time after the violation occurred.

2. If the vehicle is owned by, and registered in the name of, a lessor, a lessee who is identified by the lessor had possession of the vehicle at the time of the traffic signal violation. The lessee may be issued a citation for the red light violation.

3. If the vehicle is owned by a motor vehicle dealer, the vehicle was being operated by another person on a trial run and the dealer provided a traffic officer with the person's name, address, and operator's license number. The vehicle operator may be issued a citation for the red light violation.

4. Any other defense established by the county, city, village, or town that is specified in the ordinance.

Except for the service requirements described above, the procedure applicable to citations for red light violations detected by a TCPS is the same as that applicable to citations for nonmoving traffic violations (parking tickets), including potential vehicle registration suspension for unpaid citations. A person convicted of a red light violation detected by a TCPS is subject to a forfeiture of not more than $50 but is not subject to additional surcharges, costs, or fees. The person's operating privilege may not be suspended or revoked and the person may not be assessed any demerit points on his or her driving record.

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:

AB528-ASA1, s. 1 Section 1. 165.755 (1) (b) of the statutes is amended to read:

AB528-ASA1,3,9 165.755 (1) (b) A court may not impose the crime laboratories and drug law enforcement surcharge under par. (a) for a violation of s. 101.123 (2) (a), (am) 1., (ar), (bm), (br), or (bv) or (5) (b), for a first violation of s. 23.33 (4c) (a) 2., 30.681 (1) (b) 1., 346.63 (1) (b), or 350.101 (1) (b), if the person who committed the violation had a blood alcohol concentration of 0.08 or more but less than 0.1 at the time of the violation, or for a violation of a state law or municipal or county ordinance involving a nonmoving traffic violation, a violation of an ordinance enacted under s. 349.107, a violation under s. 343.51 (1m) (b), or a safety belt use violation under s. 347.48 (2m).

AB528-ASA1, s. 2 Section 2. 302.46 (1) (a) of the statutes is amended to read:

AB528-ASA1,4,5 302.46 (1) (a) If a court imposes a fine or forfeiture for a violation of state law or for a violation of a municipal or county ordinance except for a violation of s. 101.123 (2) (a), (am) 1., (ar), (bm), (br), or (bv) or (5), or for a first violation of s. 23.33 (4c) (a) 2., 30.681 (1) (b) 1., 346.63 (1) (b), or 350.101 (1) (b), if the person who committed the violation had a blood alcohol concentration of 0.08 or more but less than 0.1 at the time of the violation, or for a violation of state laws or municipal or county ordinances involving nonmoving traffic violations, a violation of an ordinance enacted under s. 349.107, violations under s. 343.51 (1m) (b), or safety belt use violations under s. 347.48 (2m), the court, in addition, shall impose a jail surcharge under ch. 814 in an amount of 1 percent of the fine or forfeiture imposed or $10, whichever is greater. If multiple offenses are involved, the court shall determine the jail surcharge on the basis of each fine or forfeiture. If a fine or forfeiture is suspended in whole or in part, the court shall reduce the jail surcharge in proportion to the suspension.

AB528-ASA1, s. 3 Section 3. 341.08 (4m) of the statutes is amended to read:

AB528-ASA1,5,4 341.08 (4m) At least 30 days prior to the expiration of a vehicle's registration, the department shall mail to the last-known address of the registrant a notice of the date upon which the registration must be renewed and an application form for renewal of registration. The application form or an accompanying document shall include a list of any unpaid citations for nonmoving traffic violations or violations of ordinances enacted under s. 349.107 or any judgments for violation of ch. 110, 194, or 341 to 350, an administrative rule of the department, or an ordinance enacted in accordance with s. 349.06, including parking violations and violations of ordinances enacted under s. 349.107, and of any unpaid towing and storage charges associated with nonmoving traffic violations entered against the registrant that remain unpaid. The list of unpaid citations for nonmoving traffic violations and violations of ordinances enacted under s. 349.107, and of unpaid towing and storage charges associated with nonmoving traffic violations, shall be based on information obtained under s. 345.28 (4). The list of unpaid judgments shall be based on information obtained under s. 345.47 (1) (d). If there is a citation for any nonmoving traffic violation or violation of an ordinance enacted under s. 349.107 entered against the registrant that is unpaid, he or she shall be notified that the vehicle may not be registered until the citation is paid or the registrant appears in court to respond to the citation. If there are any towing and storage charges entered against the registrant that are unpaid, he or she shall be notified that the vehicle may not be registered until such towing and storage charges are paid. If there is a judgment entered against the registrant which is unpaid, he or she shall be notified that the vehicle may not be registered until the judgment is paid.

AB528-ASA1, s. 4 Section 4. 341.10 (7m) of the statutes is amended to read:

AB528-ASA1,5,11 341.10 (7m) An authority has notified the department under s. 345.28 (4) that a citation for a nonmoving traffic violation or violation of an ordinance enacted under s. 349.107 has been issued against the applicant and the applicant has not paid the citation or appeared in court to respond to the citation or that the applicant has not paid towing and storage charges associated with a citation for a nonmoving traffic violation issued against the applicant.

AB528-ASA1, s. 5 Section 5. 345.20 (1) (b) of the statutes is amended to read:

AB528-ASA1,5,17 345.20 (1) (b) "Traffic regulation" means a provision of chs. 194 or 341 to 349 for which the penalty for violation is a forfeiture or an ordinance enacted in accordance with s. 349.06. Except as otherwise specifically provided, "traffic regulation" does not include a nonmoving traffic violation as defined in s. 345.28 (1) or a violation of an ordinance enacted under s. 349.107.

AB528-ASA1, s. 6 Section 6. 345.20 (2) (d) of the statutes is amended to read:

AB528-ASA1,5,24 345.20 (2) (d) A nonmoving Nonmoving traffic violation is violations and violations of ordinances enacted under s. 349.107 are governed by s. 345.28. The trial of forfeiture actions for nonmoving traffic violations and violations of ordinances enacted under s. 349.107 is governed by ss. 345.28 and 345.34 to 345.47. Where no specific procedure is provided in ss. 345.28 or 345.34 to 345.47, ch. 799 applies to actions in circuit court and ch. 800 applies to actions in municipal court.

AB528-ASA1, s. 7 Section 7. 345.26 (1) (a) of the statutes is amended to read:

AB528-ASA1,6,9 345.26 (1) (a) A person arrested under s. 345.22 or 345.28 (5) for the violation of a traffic regulation, or under s. 345.28 (5) for a nonmoving traffic violation or violation of an ordinance enacted under s. 349.107, who is allowed to make a deposit under s. 345.23 (2) (a) or 345.28 (5) shall deposit the money as the arresting officer directs by either mailing the deposit at a nearby mailbox to the office of the sheriff, headquarters of the county traffic patrol, district headquarters or station of the state traffic patrol, city, village or town police headquarters or a precinct station, the office of the municipal judge, the office of the clerk of court, or by going, in the custody of the arresting officer, to any of those places to make the deposit.

AB528-ASA1, s. 8 Section 8. 345.28 (title) of the statutes is amended to read:

AB528-ASA1,6,11 345.28 (title) Nonmoving violations and certain red light violations.

AB528-ASA1, s. 9 Section 9. 345.28 (1) (d) of the statutes is created to read:

AB528-ASA1,6,14 345.28 (1) (d) "Red light violation" means a violation of an ordinance enacted under s. 349.107.

AB528-ASA1, s. 10 Section 10. 345.28 (2) (a) and (b) of the statutes are amended to read:

AB528-ASA1,6,20 345.28 (2) (a) A person charged with a nonmoving traffic violation or red light violation may mail the amount of the forfeiture to any of the places specified in s. 345.26 (1) or to a violations bureau, or to the city, town or county clerk or treasurer if the traffic citation so provides. In that case, the citation shall not be filed with or transmitted to court.

AB528-ASA1,6,23 (b) If the person appears in response to a citation for a nonmoving traffic violation or red light violation, the procedures under ss. 345.34 to 345.47 apply, except as provided in par. (c).

AB528-ASA1, s. 11 Section 11. 345.28 (3) of the statutes is amended to read:

AB528-ASA1,7,9 345.28 (3) (a) If the person does not pay the forfeiture or appear in court in response to the citation for a nonmoving traffic violation or red light violation on the date specified in the citation or, if no date is specified in the citation, within 28 days after the citation is issued, the authority that issued the citation may issue a summons under s. 968.04 (3) (b) to the person and, in lieu of or in addition to issuing the summons, may proceed under sub. (4) or (5) but, except as provided in this section, no warrant may be issued for the person. If the person does not pay towing and storage charges associated with a citation for a nonmoving traffic violation, the authority that issued the citation may proceed under sub. (4).

AB528-ASA1,7,11 (b) If the person appears in response to a summons for a nonmoving traffic violation or red light violation, the procedures under ss. 345.34 to 345.47 apply.

AB528-ASA1, s. 12 Section 12. 345.28 (4) (a) 1. of the statutes is amended to read:

AB528-ASA1,7,18 345.28 (4) (a) 1. If the person does not pay the forfeiture or appear in court in response to the citation for a nonmoving traffic violation or red light violation on the date specified in the citation or, if no date is specified in the citation, within 28 days after the citation is issued, the authority may notify the department in the form and manner prescribed by the department that a citation has been issued to the person and the citation remains unpaid.

AB528-ASA1, s. 13 Section 13. 345.28 (4) (e) 1. of the statutes is amended to read:

AB528-ASA1,8,3 345.28 (4) (e) 1. If the person subsequently pays the amount of the forfeiture and the costs, if any, under par. (d) or appears in court in response to the citation or a notice by the authority who issued the citation or the department, the department shall be immediately notified in the form and manner prescribed by the department. If the vehicle involved in the a nonmoving traffic violation is owned by a person engaged in the business of renting or leasing motor vehicles and the owner pays the costs, if any, under par. (d) and 50% 50 percent of the forfeiture, the authority shall immediately notify the department in the form and manner prescribed by the department.

AB528-ASA1, s. 14 Section 14. 345.28 (4) (i) of the statutes is amended to read:

AB528-ASA1,8,13 345.28 (4) (i) Notwithstanding any other provision of this subsection or ss. 341.10 (7m) and 341.63 (1) (c), the department may permit an authority to send a single notice to the department under par. (a) 1. with respect to 2 or more nonmoving traffic violation citations, or 2 or more red light violation citations, that have been issued to a person and remain unpaid and, if an authority sends a notice specified in this paragraph to the department, the authority and department shall treat any such notice for purposes of any other provision of this section or ss. 341.10 (7m) and 341.63 (1) (c) in the same manner as a notice to the department under par. (a) 1. with respect to a single citation.

AB528-ASA1, s. 15 Section 15. 345.28 (5) (a) of the statutes is amended to read:

AB528-ASA1,8,20 345.28 (5) (a) In lieu of the procedure under sub. (4), if the person does not pay the forfeiture or appear in court in response to the citation for a nonmoving traffic violation or red light violation on the date specified in the citation or, if no date is specified in the citation, within 28 days after the citation was issued, the authority, after sending 2 notices which meet the requirements under sub. (4) (c) 1., may issue a warrant under par. (b) for the person.

AB528-ASA1, s. 16 Section 16. 345.28 (5) (b) 2. (intro.) and a. of the statutes are amended to read:

AB528-ASA1,8,23 345.28 (5) (b) 2. (intro.) If an officer contacts a person for whom a warrant for a nonmoving traffic violation or red light violation has been issued under subd. 1.:

AB528-ASA1,9,14 a. The officer shall accept a deposit of money or a deposit of the person's valid Wisconsin operator's license in lieu of serving the warrant and arresting the person. If the license is deposited with the officer, the officer shall issue to the licensee a receipt, on a form provided by the department, which is valid as an operator's license through a date specified on the receipt, not to exceed 30 days from the date of contact, which shall be the same as the court appearance date and the officer shall at the earliest possible time prior to the court appearance date deposit the license with the court. If a deposit of money is made, s. 345.26 (1) (a) and (2) to (5) applies. The officer shall notify the person who deposits money or his or her license, in writing, of the specific actions which the authority and the courts are authorized to take under this section if the person fails to appear in court at the time specified by the officer, not to exceed 30 days from the date of contact, or at any subsequent court appearance for the nonmoving traffic violation citation or red light violation. If the person makes a deposit of money or deposits his or her valid Wisconsin operator's license, the officer shall return the warrant to the court or judge who issued the warrant and the court or judge shall vacate the warrant.

AB528-ASA1, s. 17 Section 17. 345.28 (5) (c) 1. and 2. of the statutes are amended to read:

AB528-ASA1,9,24 345.28 (5) (c) 1. If the person who was contacted under par. (b) 2. and who has made a deposit of money fails to appear in court at the date specified by the officer under par. (b) 2. a. or set under s. 345.32, 345.34 or 345.36 or at any subsequent court appearance for the nonmoving traffic violation or red light violation, the person shall be deemed to have entered a plea of no contest. The court shall accept the plea of no contest, find the defendant guilty and proceed under s. 345.47, except that the deposit shall be forfeited and serve as payment of the judgment. The court shall give notice of the entry of judgment to the defendant by mailing a copy of the judgment to the defendant's last-known address.

AB528-ASA1,10,19 2. If the person who was contacted under par. (b) 2. and who has deposited his or her operator's license fails to appear in court at the date specified by the officer under par. (b) 2. a. or set under s. 345.32, 345.34 or 345.36 or at any subsequent court appearance for the nonmoving traffic violation or red light violation, the person may be deemed to have entered a plea of no contest. The court may accept the plea of no contest, find the defendant guilty and, except as limited by sub. (6), proceed under s. 345.47. If the court enters judgment under s. 345.47 (1), the court shall give notice of the entry of judgment to the defendant by mailing a copy of the judgment to the defendant's last-known address. The court shall also mail to the defendant's last-known address a statement setting forth the actions the court may take under s. 345.47 if the judgment is not paid. In lieu of accepting the plea of no contest, the court may issue a warrant commanding that the person be arrested and brought before the court. Unless the case is tried immediately with the person's consent, any person who is arrested on a warrant issued under this subdivision may be released on his or her own recognizance or on posting bond or may be released without bail and shall be released if the person posts cash bail for his or her appearance. The court may retain the person's license, but the person's operating privilege may not be suspended until after judgment is entered under s. 345.47 and the judgment is not paid.

AB528-ASA1, s. 18 Section 18. 345.28 (7) of the statutes is amended to read:

AB528-ASA1,11,5 345.28 (7) Nothing in this section prevents a court from issuing a warrant under s. 345.36 or 345.37 if the person appears in court in response to a citation for a nonmoving traffic violation or red light violation or after notice by the authority who issued the citation or the department under sub. (4) with respect to the citation or on the date specified by the officer or the court under sub. (5) and then fails to appear in court at any time fixed by subsequent postponement. Unless the case is tried immediately with the person's consent, any person who is arrested on a warrant issued under this subsection may be released on his or her own recognizance or on posting bond or may be released without bail and shall be released if the person posts cash bail for his or her appearance.

AB528-ASA1, s. 19 Section 19. 345.30 of the statutes is amended to read:

AB528-ASA1,11,13 345.30 Jurisdiction. Jurisdiction over actions for violation of traffic regulations and, nonmoving traffic violations, and violations of ordinances enacted under s. 349.107 is conferred upon circuit courts. Municipal courts shall have jurisdiction over traffic regulations enacted in accordance with s. 349.06 and, over actions for violations of nonmoving traffic ordinances enacted in accordance with s. 349.06 or 349.13, and over actions for violations of ordinances enacted under s. 349.107.

AB528-ASA1, s. 20 Section 20. 345.31 of the statutes is amended to read:

AB528-ASA1,11,21 345.31 Venue in traffic regulation actions. Section 971.19 on place of trial in criminal actions applies to actions for the violation of traffic regulations and, nonmoving traffic violations, and violations of ordinances enacted under s. 349.107 except that, in the case of a violation of an ordinance of a municipality which is located in more than one county, the action may be brought in any court sitting in that municipality even though in another county. As an alternative, the plaintiff may bring the action in the county where the defendant resides.

AB528-ASA1, s. 21 Section 21. 345.315 (1) of the statutes is amended to read:

AB528-ASA1,12,12 345.315 (1) In traffic regulation and nonmoving traffic violation cases, and in cases involving violations of ordinances enacted under s. 349.107, a person charged with a violation may file a written request for a substitution of a different judge for the judge originally assigned to the trial of that case. The written request shall be filed not later than 7 days after the initial appearance in person or by an attorney. If a new judge is assigned to the trial of a case and the defendant has not exercised the right to substitute an assigned judge, a written request for the substitution of the new judge may be filed within 10 days of the giving of actual notice or sending of the notice of assignment to the defendant or the defendant's attorney. If the notification occurs within 10 days of the date set for trial, the request shall be filed within 48 hours of the giving of actual notice or sending of the notice of assignment to the defendant or the defendant's attorney. If the notification occurs within 48 hours of the trial or if there has been no notification, the defendant may make an oral or written request for substitution prior to the commencement of the proceedings. The judge against whom a request has been filed may set initial bail and accept a plea.

AB528-ASA1, s. 22 Section 22. 345.36 (3) of the statutes is amended to read:

AB528-ASA1,12,16 345.36 (3) If the offense involved is a nonmoving traffic violation or violation of an ordinance enacted under s. 349.107 and the defendant is subject to s. 345.28 (5) (c), a default judgment may be entered and opened as provided in s. 345.28 (5) (c).

AB528-ASA1, s. 23 Section 23. 345.37 (1) (b) of the statutes is amended to read:

AB528-ASA1,13,6 345.37 (1) (b) Deem the nonappearance a plea of no contest and enter judgment accordingly. If the defendant has posted bond for appearance at that date, the court may also order the bond forfeited. The court shall promptly mail a copy or notice of the judgment to the defendant. The judgment shall allow not less than 20 days from the date thereof for payment of any forfeiture, plus costs, fees, and surcharges imposed under ch. 814. If the defendant moves to open the judgment within 6 months after the court appearance date fixed in the citation, and shows to the satisfaction of the court that the failure to appear was due to mistake, inadvertence, surprise, or excusable neglect, the court shall open the judgment, accept a not guilty plea, and set a trial date. The court may impose costs under s. 814.07. The court shall immediately notify the department to delete the record of conviction based upon the original judgment. If the offense involved is a nonmoving traffic violation or violation of an ordinance enacted under s. 349.107 and the defendant is subject to s. 345.28 (5) (c), a default judgment may be entered and opened as provided in s. 345.28 (5) (c).

AB528-ASA1, s. 24 Section 24. 345.47 (1) (b) of the statutes is amended to read:

AB528-ASA1,13,16 345.47 (1) (b) In lieu of imprisonment and in addition to any other suspension or revocation, that the defendant's operating privilege be suspended. The operating privilege shall be suspended for 30 days or until the person pays the forfeiture, plus costs, fees, and surcharges imposed under ch. 814, but not to exceed 2 years. Suspension under this paragraph shall not affect the power of the court to suspend or revoke under s. 343.30 or the power of the secretary to suspend or revoke the operating privilege. This paragraph does not apply if the judgment was entered solely for violation of an ordinance unrelated to the violator's operation of a motor vehicle or of an ordinance enacted under s. 349.107.

AB528-ASA1, s. 25 Section 25. 349.107 of the statutes is created to read:

AB528-ASA1,13,19 349.107 Authority to use traffic control photographic systems. (1) In this section:

AB528-ASA1,13,22 (a) In addition to the meaning given in s. 340.01 (42), "owner" means, with respect to a vehicle that is registered, or that is required to be registered, by a lessee of the vehicle under ch. 341, the lessee of the vehicle.

AB528-ASA1,14,2 (b) "Traffic control photographic system" means an electronic system consisting of a photographic, video, or electronic camera and a vehicle sensor installed for use with an official traffic control signal to automatically produce photographs or video or digital images, stamped with the time and date, of vehicles moving through an intersection.

AB528-ASA1,14,4 (2) Subject to sub. (3), the governing body of any county, city, village, or town may enact an ordinance that does all of the following:

AB528-ASA1,14,8 (a) Except as provided in sub. (3) (c), subjects a person to a forfeiture for being the owner of a motor vehicle that, when facing a traffic control signal at an intersection that exhibits a red light other than a flashing red light, does any of the following:

AB528-ASA1,14,9 1. Proceeds through the intersection without stopping.

AB528-ASA1,14,12 2. After stopping at the intersection, proceeds through the intersection before the traffic control signal exhibits a green light if the vehicle is not making a right turn.

AB528-ASA1,14,15 (b) Allows the use of a traffic control photographic system on highways under the jurisdiction of the county, city, village, or town, including connecting highways, for the purpose of detecting violations described in par. (a).

AB528-ASA1,14,18 (c) Subjects a person to a forfeiture for being the lessee or operator of a motor vehicle the owner of which would be subject to a forfeiture under this section but for the owner's successful assertion of a defense under sub. (3) (d) 2. or 3.

AB528-ASA1,14,19 (3) An ordinance enacted under sub. (2) shall include all of the following: