SB223: Bill Text

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1997 - 1998 LEGISLATURE

1997 Senate BILL 223

May 29, 1997 - Introduced by Senator Adelman, cosponsored by Representative Urban. Referred to Committee on Judiciary, Campaign Finance Reform and Consumer Affairs.

SB223,2,2 An Act to repeal 346.65 (2) (e), 885.235 (1) (a) 2. and 885.235 (1) (b); to renumber 343.305 (10m), 346.65 (6) (a) 1., 885.235 (1) (a) 1., 940.09 (1d) and 940.25 (1d); to amend 23.33 (4c) (a) 2., 23.33 (4c) (a) 3., 23.33 (4c) (b) 2., 23.33 (4c) (b) 4., 30.681 (1) (b) 1., 30.681 (2) (b) 1., 30.681 (2) (d) 1., 342.12 (4) (a), 343.10 (5) (a) 3., 343.31 (1) (ar), 346.63 (2m), 346.63 (5) (a), 346.63 (6) (a), 346.65 (2) (d), 346.65 (2) (f), 346.65 (2c), 346.65 (2e), 346.65 (6) (a) 2m., 346.65 (6) (c), 346.65 (6) (d), 346.65 (7), 350.101 (1) (b), 350.101 (1) (c), 350.101 (2) (b), 350.101 (2) (d), 885.235 (1) (c), 885.235 (1m), 940.09 (1) (intro.), 940.09 (1) (bm), 940.09 (1g) (b), 940.25 (1) (bm), 949.08 (2) (em) and 967.055 (1) (b); to repeal and recreate 340.01 (46m); and to create 343.305 (4) (am), 343.305 (4) (bd), 343.305 (10m) (a), 346.65 (6) (a) 1d., 940.09 (1d) (a) and 940.25 (1d) (a) of the statutes; relating to: lowering the prohibited alcohol concentration for certain offenses involving alcohol use, installation of an ignition interlock device in cases involving intoxicated operation of a motor vehicle, seizure and forfeiture of motor vehicles and providing a penalty.

Analysis by the Legislative Reference Bureau

Current law prohibits a person from operating an all-terrain vehicle, motorboat or snowmobile if the person has 0.1 grams or more of alcohol in 100 milliliters of his or her blood or in 210 liters of his or her breath. A person who has one or no prior convictions for operating a motor vehicle while under the influence of an intoxicant (OWI) is subject to the same alcohol concentration standards while operating a motor vehicle as persons who operate an all-terrain vehicle, motorboat or snowmobile. If a person has 2 or more prior OWI convictions, the person may not operate a motor vehicle if he or she has 0.08 grams or more of alcohol in 100 milliliters of his or her blood or in 210 liters of his or her breath. This bill changes the prohibited alcohol concentration to 0.08 or more for all motor vehicle operators and for persons operating an all-terrain vehicle, motorboat or snowmobile.

Under current law, if a person has 2 or more prior OWI suspensions, revocations or convictions related to the operation of a motor vehicle, the court may equip a motor vehicle owned by the person with an ignition interlock device. Any occupational license issued to the person with 2 or more prior OWI suspensions, revocations or convictions may restrict him or her to operating a motor vehicle equipped with an ignition interlock device. Under this bill, the court may order that a motor vehicle be equipped with an ignition interlock device after the first OWI offense, including a refusal to submit to testing, and may require the occupational license issued to that person to restrict him or her to operating a motor vehicle equipped with an ignition interlock device.

The bill changes the penalties for a 4th or subsequent OWI conviction from a misdemeanor with a maximum fine of $2,000 and a maximum imprisonment of one year in the county jail to a felony with a maximum fine of $10,000 and a maximum imprisonment of 2 years in a state prison.

Current law allows a court to seize a motor vehicle owned by a person if he or she is convicted of an OWI offense and has 2 prior OWI suspensions, revocations or convictions and requires that seizure if the person has 3 or more prior OWI suspensions, revocations or convictions. Currently, the district attorney of the county where the motor vehicle was seized is required to commence the action to forfeit the seized motor vehicle to the state. This bill requires the district attorney of the county where the motor vehicle was ordered seized (usually the county where the underlying OWI offense is prosecuted) to commence the action to forfeit the seized motor vehicle.

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:

SB223, s. 1 Section 1. 23.33 (4c) (a) 2. of the statutes is amended to read:

SB223,3,4 23.33 (4c) (a) 2. `Operating with alcohol concentrations at or above specified levels.' No person may engage in the operation of an all-terrain vehicle while the person has an alcohol concentration of 0.1 0.08 or more.

SB223, s. 2 Section 2. 23.33 (4c) (a) 3. of the statutes is amended to read:

SB223,3,9 23.33 (4c) (a) 3. `Operating with alcohol concentrations at specified levels; below age 19.' If a person has not attained the age of 19, the person may not engage in the operation of an all-terrain vehicle while he or she has an alcohol concentration of more than 0.0 but not more than 0.1 0.08.

SB223, s. 3 Section 3. 23.33 (4c) (b) 2. of the statutes is amended to read:

SB223,3,13 23.33 (4c) (b) 2. `Causing injury with alcohol concentrations at or above specified levels.' No person who has an alcohol concentration of 0.1 0.08 or more may cause injury to another person by the operation of an all-terrain vehicle.

SB223, s. 4 Section 4. 23.33 (4c) (b) 4. of the statutes is amended to read:

SB223,3,19 23.33 (4c) (b) 4. `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 0.08 or more.

SB223, s. 5 Section 5. 30.681 (1) (b) 1. of the statutes is amended to read:

SB223,4,3 30.681 (1) (b) 1. No person may engage in the operation of a motorboat while the person has an alcohol concentration of 0.1 0.08 or more. This subdivision does not apply to commercial motorboats.

SB223, s. 6 Section 6. 30.681 (2) (b) 1. of the statutes is amended to read:

SB223,4,7 30.681 (2) (b) 1. No person who has an alcohol concentration of 0.1 0.08 or more may cause injury to another person by the operation of a motorboat. This subdivision does not apply to commercial motorboats.

SB223, s. 7 Section 7. 30.681 (2) (d) 1. of the statutes is amended to read:

SB223,4,14 30.681 (2) (d) 1. In an action under this subsection for a violation of the intoxicated boating law where the defendant was operating a motorboat that is not a commercial motorboat, 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 0.08 or more.

SB223, s. 8 Section 8. 340.01 (46m) of the statutes is repealed and recreated to read:

SB223,4,17 340.01 (46m) "Prohibited alcohol concentration" means an alcohol concentration of 0.08 or more.

SB223, s. 9 Section 9. 342.12 (4) (a) of the statutes is amended to read:

SB223,5,2 342.12 (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 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.

SB223, s. 10 Section 10. 343.10 (5) (a) 3. of the statutes is amended to read:

SB223,5,13 343.10 (5) (a) 3. If the applicant has 2 or more prior convictions, suspensions or revocations, as counted under s. 343.307 (1), the 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.

SB223, s. 11 Section 11. 343.305 (4) (am) of the statutes is created to read:

SB223,5,17 343.305 (4) (am) If testing is refused, a motor vehicle owned by the person may be equipped with an ignition interlock device and the person's operating privilege will be revoked under this section;

SB223, s. 12 Section 12. 343.305 (4) (bd) of the statutes is created to read:

SB223,5,23 343.305 (4) (bd) 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 motor vehicle owned by the person may be equipped with an ignition interlock device;

SB223, s. 13 Section 13. 343.305 (10m) of the statutes is renumbered 343.305 (10m) (b).

SB223, s. 14 Section 14. 343.305 (10m) (a) of the statutes is created to read:

SB223,6,3 343.305 (10m) (a) If the person's operating privilege is revoked under sub. (10), the procedure under s. 346.65 (6) shall be followed regarding the equipping of a motor vehicle owned by the person with an ignition interlock device.

SB223, s. 15 Section 15. 343.31 (1) (ar) of the statutes is amended to read:

SB223,6,7 343.31 (1) (ar) Injury by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.1 0.08 and which is criminal under s. 346.63 (6).

SB223, s. 16 Section 16. 346.63 (2m) of the statutes is amended to read:

SB223,6,16 346.63 (2m) If a person has not attained the age of 19, the person may not drive or operate a motor vehicle while he or she has an alcohol concentration of more than 0.0 but not more than 0.1 0.08. One penalty for violation of this subsection is suspension of a person's operating privilege under s. 343.30 (1p). The person is eligible for an occupational license under s. 343.10 at any time. If a person arrested for a violation of this subsection refuses to take a test under s. 343.305, the refusal is a separate violation and the person is subject to revocation of the person's operating privilege under s. 343.305 (10) (em).

SB223, s. 17 Section 17. 346.63 (5) (a) of the statutes is amended to read:

SB223,6,19 346.63 (5) (a) No person may drive or operate a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.1 0.08.

SB223, s. 18 Section 18. 346.63 (6) (a) of the statutes is amended to read:

SB223,6,23 346.63 (6) (a) No person may cause injury to another person by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.1 0.08.

SB223, s. 19 Section 19. 346.65 (2) (d) of the statutes is amended to read:

SB223,7,6 346.65 (2) (d) Except as provided in par. (f), shall be fined not less than $600 nor more than $2,000 $10,000 and imprisoned for not less than 60 days nor more than one year in the county jail 2 years if the total number of suspensions, revocations and convictions counted under s. 343.307 (1) equals 4 or more in a 10-year period, except that suspensions, revocations or convictions arising out of the same incident or occurrence shall be counted as one.

SB223, s. 20 Section 20. 346.65 (2) (e) of the statutes is repealed.

SB223, s. 21 Section 21. 346.65 (2) (f) of the statutes is amended to read:

SB223,7,15 346.65 (2) (f) If there was a minor passenger under 16 years of age in the motor vehicle at the time of the violation that gave rise to the conviction under s. 346.63 (1), the applicable minimum and maximum forfeitures, fines or imprisonment under par. (a), (b), (c), or (d) or (e) for the conviction are doubled. An offense under s. 346.63 (1) that subjects a person to a penalty under par. (c), (d) or (e) when there is a minor passenger under 16 years of age in the motor vehicle is a felony and the place of imprisonment shall be determined under s. 973.02.

SB223, s. 22 Section 22. 346.65 (2c) of the statutes is amended to read:

SB223,7,22 346.65 (2c) In sub. (2) (b) to (e) (d), the 5-year or 10-year period shall be measured from the dates of the refusals or violations that resulted in the revocation or convictions. If a person has a suspension, revocation or conviction for any offense under a local ordinance or a state statute of another state that would be counted under s. 343.307 (1), that suspension, revocation or conviction shall count as a prior suspension, revocation or conviction under sub. (2) (b) to (e) (d).

SB223, s. 23 Section 23. 346.65 (2e) of the statutes is amended to read:

SB223,8,5 346.65 (2e) If the court determines that a person does not have the ability to pay the costs and fine or forfeiture imposed under sub. (2) (a), (b), (c), (d), (e) or (f), the court may reduce the costs, fine and forfeiture imposed and order the person to pay, toward the cost of the assessment and driver safety plan imposed under s. 343.30 (1q) (c), the difference between the amount of the reduced costs and fine or forfeiture and the amount of costs and fine or forfeiture imposed under sub. (2) (a), (b), (c), (d), (e) or (f).

SB223, s. 24 Section 24. 346.65 (6) (a) 1. of the statutes is renumbered 346.65 (6) (a) 1g.

SB223, s. 25 Section 25. 346.65 (6) (a) 1d. of the statutes is created to read:

SB223,8,14 346.65 (6) (a) 1d. Except as provided in this subdivision, the court may order a law enforcement officer to equip with an ignition interlock device a motor vehicle owned by the person whose operating privilege is revoked under s. 343.305 (10) or 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). The court shall not order a motor vehicle equipped with an ignition interlock device if that would result in undue hardship or extreme inconvenience or would endanger the health or safety of a person.

SB223, s. 26 Section 26. 346.65 (6) (a) 2m. of the statutes is amended to read:

SB223,9,9 346.65 (6) (a) 2m. A person who owns a motor vehicle subject to seizure, equipping with an ignition interlock device or immobilization under this paragraph shall surrender to the clerk of circuit court the certificate of title issued under ch. 342 for every motor vehicle owned by the person. 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 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 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.

SB223, s. 27 Section 27. 346.65 (6) (c) of the statutes is amended to read:

SB223,9,19 346.65 (6) (c) The district attorney of the county where the motor vehicle was seized seizure is ordered shall commence an action to forfeit the motor vehicle within 30 days after the motor vehicle is seized. The action shall name 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.

SB223, s. 28 Section 28. 346.65 (6) (d) of the statutes is amended to read:

SB223,9,25 346.65 (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 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. 1g., 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 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 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., that he or she did not have 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 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 storage costs.

SB223, s. 29 Section 29. 346.65 (7) of the statutes is amended to read:

SB223,10,14 346.65 (7) A person convicted under sub. (2) (b), (c), or (d) or (e) or (2j) (b) or (c) shall be required to remain in the county jail for not less than a 48-consecutive-hour period.

SB223, s. 30 Section 30. 350.101 (1) (b) of the statutes is amended to read:

SB223,10,18 350.101 (1) (b) Operating with alcohol concentrations at or above specified levels. No person may engage in the operation of a snowmobile while the person has an alcohol concentration of 0.1 0.08 or more.

SB223, s. 31 Section 31. 350.101 (1) (c) of the statutes is amended to read:

SB223,10,23 350.101 (1) (c) Operating with alcohol concentrations at specified levels; below age 19. If a person has not attained the age of 19, the person may not engage in the operation of a snowmobile while he or she has an alcohol concentration of more than 0.0 but not more than 0.1 0.08.

SB223, s. 32 Section 32. 350.101 (2) (b) of the statutes is amended to read:

SB223,11,3 350.101 (2) (b) Causing injury with alcohol concentrations at or above specified levels. No person who has an alcohol concentration of 0.1 0.08 or more may cause injury to another person by the operation of a snowmobile.

SB223, s. 33 Section 33. 350.101 (2) (d) of the statutes is amended to read:

SB223,11,9 350.101 (2) (d) Defenses. In an action under this subsection, 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 0.08 or more.

SB223, s. 34 Section 34. 885.235 (1) (a) 1. of the statutes is renumbered 885.235 (1) (a).

SB223, s. 35 Section 35. 885.235 (1) (a) 2. of the statutes is repealed.

SB223, s. 36 Section 36. 885.235 (1) (b) of the statutes is repealed.

SB223, s. 37 Section 37. 885.235 (1) (c) of the statutes is amended to read:

SB223,11,17 885.235 (1) (c) The fact that the analysis shows that the person had an alcohol concentration of 0.1 0.08 or more is prima facie evidence that he or she was under the influence of an intoxicant and is prima facie evidence that he or she had an alcohol concentration of 0.1 0.08 or more.