AB401: Bill Text

LRB-1885/1

RPN:mfd&jlg:arm

1997 - 1998 LEGISLATURE

1997 Assembly BILL 401

June 4, 1997 - Introduced by Representative Baumgart, by request of Mr. Daniel Merkel, Sheboygan, Wisconsin. Referred to Committee on Criminal Justice and Corrections.

AB401,1,6 An Act to repeal 346.65 (6) (a) 1., 346.65 (6) (m) and 347.417; to amend 342.12 (4), 343.10 (5) (a) 3., 343.305 (4) (b), 343.305 (4) (c), 343.305 (10m), 346.65 (6) (a) 2., 346.65 (6) (a) 2m., 346.65 (6) (a) 3., 346.65 (6) (a) 4. (intro.), 346.65 (6) (b), 346.65 (6) (c), 346.65 (6) (d), 346.65 (6) (h), 346.65 (6) (k), 347.413 (1), 347.50 (1), 347.50 (1s), 940.09 (1d) and 940.25 (1d); and to create 346.65 (6) (a) 1g. of the statutes; relating to: seizure of motor vehicles.

Analysis by the Legislative Reference Bureau

Under current law, a court may order a law enforcement officer to immobilize, equip with an ignition interlock device or seize a motor vehicle owned by a person whose operating privilege is revoked for committing an offense related to driving while under the influence of an intoxicant (OWI) or for refusing to submit to testing to determine the alcohol content in his or her blood if the person has 2 or more prior OWI-related suspensions, revocations or convictions within a 10-year period. Current law requires a court to order a law enforcement officer to seize a motor vehicle owned by a person whose operating privilege is revoked for committing an OWI-related offense or for refusing to submit to testing to determine the alcohol content in his or her blood if the person has 3 or more prior OWI-related suspensions, revocations or convictions within a 10-year period. Under current law, a seized motor vehicle is subject to forfeiture. Under current law, however, certain motor vehicles are not subject to seizure, including motor vehicles used as common carriers, rented or leased motor vehicles and commercial motor vehicles, unless the owner knew of or consented to the violation or refusal.

This bill requires a court to order the sheriff to seize the motor vehicle used in committing the first OWI-related offense. The vehicle is held in secure storage by the sheriff for a period of 30 days and then released to the owner upon payment of the sheriff's costs related to the seizure and storage. If a vehicle is not claimed by the owner, the sheriff is required to sell the motor vehicle, following the same procedures that are followed for motor vehicles that are seized and forfeited. Under the bill, certain motor vehicles are not subject to this 30-day seizure, including stolen motor vehicles and motor vehicles used as common carriers, rented or leased motor vehicles and commercial motor vehicles, unless the owner knew of or consented to the violation or refusal.

Under this bill, if a person commits an OWI-related offense or refusal and has one or more prior OWI-related offenses or refusals, the court is required to order the seizure and forfeiture of the vehicle used during the offense or refusal. Under the bill, immobilization and installation of ignition interlock devices are no longer options in these situations.

If the department of transportation (DOT) permits a person with an OWI-related offense or refusal to obtain an occupational license, under current law, DOT may order that the occupational license be limited to vehicles equipped with an ignition interlock device if the person has 2 or more prior offenses or refusals. This bill allows the use of an ignition interlock device on a vehicle used by a person who is operating under an occupational license if the person has one or more prior OWI-related offenses or refusals.

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:

AB401, s. 1 Section 1. 342.12 (4) of the statutes is amended to read:

AB401,3,2 342.12 (4) (a) The district attorney shall notify the department when he or she files a criminal complaint against a person who has been arrested for violating s. 346.63 (1) or (2), 940.09 (1) or 940.25 and who has 2 one or more prior convictions, suspensions or revocations within a 10-year period, as counted under s. 343.307 (1). The department may not issue a certificate of title transferring ownership of any motor vehicle owned by the person upon receipt of a notice under this subsection until the court assigned to hear the criminal complaint issues an order permitting the department to issue a certificate of title.

AB401,3,8 (b) The department may not issue a certificate of title transferring ownership of any motor vehicle owned by a person upon receipt of a notice of intent to revoke the person's operating privilege under s. 343.305 (9) (a), if the person has 2 one or more prior convictions, suspensions or revocations within a 10-year period, as counted under s. 343.307 (1), until the court assigned to the hearing under s. 343.305 (9) issues an order permitting the department to issue a certificate of title.

AB401, s. 2 Section 2. 343.10 (5) (a) 3. of the statutes is amended to read:

AB401,3,19 343.10 (5) (a) 3. If the applicant has 2 one or more prior convictions, suspensions or revocations, as counted under s. 343.307 (1), the occupational license of the applicant may restrict the applicant's operation under the occupational license to vehicles that are equipped with a functioning ignition interlock device as provided under s. 346.65 (6). A person to whom a restriction under this subdivision applies violates that restriction if he or she requests or permits another to blow into an ignition interlock device or to start a motor vehicle equipped with an ignition interlock device for the purpose of providing the person an operable motor vehicle without the necessity of first submitting a sample of his or her breath to analysis by the ignition interlock device.

AB401, s. 3 Section 3. 343.305 (4) (b) of the statutes is amended to read:

AB401,3,25 343.305 (4) (b) If testing is refused, a motor vehicle owned by the person may shall be immobilized, seized and forfeited or equipped with an ignition interlock device if the person has 2 one or more prior suspensions, revocations or convictions within a 10-year period that would be counted under s. 343.307 (1) and the person's operating privilege will be revoked under this section;

AB401, s. 4 Section 4. 343.305 (4) (c) of the statutes is amended to read:

AB401,4,9 343.305 (4) (c) If one or more tests are taken and the results of any test indicate that the person has a prohibited alcohol concentration and was driving or operating a motor vehicle, the person will be subject to penalties, the person's operating privilege will be suspended under this section and a the motor vehicle owned used by the person may will be immobilized, seized and forfeited or equipped with an ignition interlock device, if the person has 2 one or more prior convictions, suspensions or revocations within a 10-year period that would be counted under s. 343.307 (1), seized and forfeited; and

AB401, s. 5 Section 5. 343.305 (10m) of the statutes is amended to read:

AB401,4,17 343.305 (10m) (title) Refusals; seizure , immobilization or ignition interlock of a motor vehicle. If the person whose person's operating privilege is revoked under sub. (10) has 2 or more prior convictions, suspensions or revocations, as counted under s. 343.307 (1), within a 10-year period, the procedure under s. 346.65 (6) shall be followed regarding the immobilization or seizure and forfeiture of a motor vehicle owned used by the person or the equipping of a motor vehicle owned by the person with an ignition interlock device at the time of the refusal.

AB401, s. 6 Section 6. 346.65 (6) (a) 1. of the statutes is repealed.

AB401, s. 7 Section 7. 346.65 (6) (a) 1g. of the statutes is created to read:

AB401,5,10 346.65 (6) (a) 1g. Except as otherwise provided in this subdivision, the court shall order the sheriff to seize the motor vehicle used by a person during the incident that resulted in the person's operating privilege being revoked under s. 343.305 (10) or used by the person while committing a violation of s. 346.63 (1) or (2), 940.09 (1) (a) or (b) or 940.25 (1) (a) or (b). The sheriff shall store the motor vehicle in a secure location for a period of 30 days and, within 10 days after seizure, shall notify the owner of the motor vehicle by 1st class mail of the year, make, model, serial number and location of the motor vehicle and of his or her right to obtain the motor vehicle after the 30-day period has ended upon payment of the sheriff's costs incurred in seizing the motor vehicle, transporting the motor vehicle to the place of storage and storing the motor vehicle. If the owner fails to claim his or her motor vehicle within 10 days after the 30-day period has ended, the sheriff shall dispose of the motor vehicle by sealed bid or auction following the procedure under s. 342.40 (3) (c), except as provided in par. (em). The sheriff shall distribute the proceeds of any sale as provided in pars. (e), (f) and (g). The following motor vehicles are not subject to seizure under this subdivision:

AB401,5,14 a. A motor vehicle used by any person as a common carrier in the transaction of business as a common carrier unless the owner or other person in charge of the motor vehicle had knowledge of or consented to the commission of the violation or refusal.

AB401,5,17 b. A commercial motor vehicle used by any person unless the owner or other person in charge of the commercial motor vehicle had knowledge of or consented to the commission of the violation or refusal.

AB401,5,20 c. A rented or leased motor vehicle used by any person unless the owner of the motor vehicle had knowledge of or consented to the commission of the violation or refusal.

AB401,5,25 d. A motor vehicle owned by a dealer, as defined in s. 340.01 (11) (intro.) but including the persons specified in s. 340.01 (11) (a) to (d), if at the time of the violation the vehicle was under the control of a person on a trial run, unless the owner of the motor vehicle had knowledge of or consented to the commission of the violation or refusal.

AB401,6,3 e. A motor vehicle that was reported stolen to a traffic officer before the violation occurred or within a reasonable time after the violation occurred if the owner of the motor vehicle was not the person who committed the violation or refusal.

AB401, s. 8 Section 8. 346.65 (6) (a) 2. of the statutes is amended to read:

AB401,6,12 346.65 (6) (a) 2. The court shall order a law enforcement officer to seize a and subject to forfeiture the motor vehicle owned used by a person whose operating privilege is during the incident that resulted in the person's operating privilege being revoked under s. 343.305 (10) or who commits used by a person while committing a violation of s. 346.63 (1) (a) or (b) or (2) (a) 1. or 2., 940.09 (1) (a) or (b) or 940.25 (1) (a) or (b) if the person whose operating privilege is revoked under s. 343.305 (10) or who is convicted of the violation has 3 one or more prior suspensions, revocations or convictions within a 10-year period that would be counted under s. 343.307 (1).

AB401, s. 9 Section 9. 346.65 (6) (a) 2m. of the statutes is amended to read:

AB401,7,8 346.65 (6) (a) 2m. A person who owns a motor vehicle subject to seizure, equipping with an ignition interlock device or immobilization under this paragraph subd. 2. shall surrender to the clerk of circuit court the certificate of title issued under ch. 342 for every the motor vehicle owned by the person subject to seizure under subd. 2. The person shall comply with this subdivision within 5 working days after receiving notification of this requirement from the district attorney. When a district attorney receives a copy of a notice of intent to revoke the operating privilege under s. 343.305 (9) (a) of a person who has 2 one or more convictions, suspensions or revocations within a 5-year period, as counted under s. 343.307 (1), or when a district attorney notifies the department of the filing of a criminal complaint against a person under s. 342.12 (4) (a), the district attorney shall notify the person of the requirement to surrender all certificates the certificate of title to the clerk of circuit court. The notification shall include the time limits for that surrender, the penalty for failure to comply with the requirement and the address of the clerk of circuit court. The clerk of circuit court shall promptly return each certificate of title surrendered to the clerk of circuit court under this subdivision after stamping the certificate of title with the notation "Per section 346.65 (6) of the Wisconsin statutes, ownership of this motor vehicle may not be transferred without prior court approval". Any person failing to surrender a certificate of title as required under this subdivision shall forfeit not more than $500.

AB401, s. 10 Section 10. 346.65 (6) (a) 3. of the statutes is amended to read:

AB401,7,20 346.65 (6) (a) 3. The court shall notify the department, in a form and manner prescribed by the department, that an order to equip a motor vehicle with an ignition interlock device, to immobilize a motor vehicle or to seize a motor vehicle has been entered under subd. 2. The registration records of the department shall reflect that the order has been entered against the vehicle and remains unexecuted. Any law enforcement officer may execute that order and shall transfer any motor vehicle ordered seized to the law enforcement agency that was originally ordered to seize the vehicle based on the information provided by the department. The law enforcement agency shall notify the department when an order has been executed under this subdivision and the department shall amend its vehicle registration records to reflect that notification.

AB401, s. 11 Section 11. 346.65 (6) (a) 4. (intro.) of the statutes is amended to read:

AB401,7,23 346.65 (6) (a) 4. (intro.) The following motor vehicles are not subject to seizure and forfeiture under this subsection subd. 2.:

AB401, s. 12 Section 12. 346.65 (6) (b) of the statutes is amended to read:

AB401,8,9 346.65 (6) (b) Within 10 days after seizing or immobilizing a motor vehicle under par. (a) 2., the law enforcement agency that seized or immobilized the vehicle shall provide notice of the seizure or immobilization by certified mail to the owner of the motor vehicle and to all lienholders of record. The notice shall set forth the year, make, model and serial number of the motor vehicle, where the motor vehicle is located, the reason for the seizure or immobilization, and the forfeiture procedure if the vehicle was seized. When a motor vehicle is seized under this section par (a) 2., the law enforcement agency that seized the vehicle shall place the motor vehicle in a secure place subject to the order of the court.

AB401, s. 13 Section 13. 346.65 (6) (c) of the statutes is amended to read:

AB401,8,21 346.65 (6) (c) The district attorney of the county where the motor vehicle was seized under par. (a) 2. shall commence an action to forfeit the motor vehicle within 30 days after the motor vehicle is seized. The action shall name the person convicted of the offense or whose refusal under s. 343.305 (10) resulted in the motor vehicle being seized, the owner of the motor vehicle and all lienholders of record as parties. The forfeiture action shall be commenced by filing a summons, complaint and affidavit of the law enforcement agency with the clerk of circuit court. Upon service of an answer, the action shall be set for hearing within 60 days after the service of the answer. If no answer is served or no issue of law or fact joined and the time for that service or joining of issues has expired, the court may render a default judgment as provided in s. 806.02.

AB401, s. 14 Section 14. 346.65 (6) (d) of the statutes is amended to read:

AB401,9,13 346.65 (6) (d) At the hearing set under par. (c), the state has the burden of proving to a reasonable certainty by the greater weight of the credible evidence that the motor vehicle is a motor vehicle owned used by a person who committed a violation of s. 346.63 (1) (a) or (b) or (2) (a) 1. or 2., 940.09 (1) (a) or (b) or 940.25 (1) (a) or (b) and, if the seizure is under par. (a) 1., that the person had 2 prior convictions, suspensions or revocations within a 10-year period as counted under s. 343.307 (1) or, if the seizure is under par. (a) 2., 3 one or more prior convictions, suspensions or revocations within a 10-year period as counted under s. 343.307 (1). If the owner of the motor vehicle person proves by a preponderance of the evidence that he or she was not convicted of a violation of s. 346.63 (1) (a) or (b) or (2) (a) 1. or 2., 940.09 (1) (a) or (b) or 940.25 (1) (a) or (b), or, if the seizure is under par. (a) 1. 2., that he or she did not have 2 any prior convictions, suspensions or revocations within a 10-year period as counted under s. 343.307 (1) or, if the seizure is under par. (a) 2., 3 or more prior convictions, suspensions or revocations within a 10-year period as counted under s. 343.307 (1), the motor vehicle shall be returned to the owner upon the payment of the seizure and storage costs.

AB401, s. 15 Section 15. 346.65 (6) (h) of the statutes is amended to read:

AB401,9,19 346.65 (6) (h) After a determination is made that a motor vehicle seized under par. (a) 2. is not subject to forfeiture, the agency having custody of the motor vehicle shall take reasonable steps to notify the owner or other person in charge of the motor vehicle of the location of the motor vehicle and of his or her right to take possession of the motor vehicle.

AB401, s. 16 Section 16. 346.65 (6) (k) of the statutes is amended to read: