SB338: Bill Text

Note: This Section reorganizes s. 343.303 and provides that a law enforcement officer may require a preliminary breath screening test if there is a reasonable suspicion, rather than probable cause to believe, that a violation has occurred. This change is based on the decision of the Wisconsin Supreme Court in County of Jefferson v. Renz, 231 Wis. 2d 293 (1999).

In addition, current law provides that a preliminary breath screening test is not admissible in any action or proceeding except to show probable cause for an arrest, if the arrest is challenged, or to prove that a chemical test was properly required or requested. This Section provides that the result of the preliminary breath screening test also may be used as evidence of the presence of an intoxicant in a person's breath, blood, or urine; that is, the result of the test is admissible for the purpose of providing evidence of the existence of an intoxicant but not for the purpose of providing evidence of the amount of an intoxicant.

SB338, s. 13 Section 13. 343.305 (2), (3) (am) and (b), (4) (form) and (5) (b) of the statutes are amended to read:

SB338,12,9 343.305 (2) Implied consent. Any person who is on duty time with respect to a commercial motor vehicle or drives or operates a motor vehicle upon the public highways of this state, or in those areas enumerated in s. 346.61, is deemed to have given consent to one or more tests of his or her breath, blood, or urine, for the purpose of determining the presence or quantity of an intoxicant in his or her blood or breath, of alcohol, controlled substances, controlled substance analogs or other drugs, or any combination of alcohol, controlled substances, controlled substance analogs and other drugs breath, blood, or urine, when requested to do so by a law enforcement officer under sub. (3) (a) or (am) or when required to do so under sub. (3) (b). Any such tests shall be administered upon the request of a law enforcement officer. The law enforcement agency by which the officer is employed shall be prepared to administer, either at its agency or any other agency or facility, 2 of the 3 tests under sub. (3) (a) or (am), and may designate which of the tests shall be administered first.

SB338,12,19 (3) (am) Prior to arrest, a law enforcement officer may request the person to provide one or more samples of his or her breath, blood, or urine for the purpose specified under sub. (2) whenever a law enforcement officer detects any presence of alcohol, a controlled substance, a controlled substance analog or other drug, or a combination thereof, an intoxicant on a person driving or operating or on duty time with respect to a commercial motor vehicle or has reason to believe the person is violating or has violated s. 346.63 (7). Compliance with a request for one type of sample does not bar a subsequent request for a different type of sample. For the purposes of this paragraph, "law enforcement officer" includes inspectors in the performance of duties under s. 110.07 (3).

SB338,13,4 (b) A person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent under this subsection, and if a law enforcement officer has probable cause to believe that the person has violated s. 346.63 (1), (2m), or (5) or a local ordinance in conformity therewith, or s. 346.63 (2) or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, or detects any presence of alcohol, controlled substance, controlled substance analog or other drug, or a combination thereof, an intoxicant on a person driving or operating or on duty time with respect to a commercial motor vehicle or has reason to believe the person has violated s. 346.63 (7), one or more samples tests specified in par. (a) or (am) may be administered to the person.

SB338,13,5 (4) (form)

SB338,13,9 "You have either been arrested for an offense that involves driving or operating a motor vehicle while under the influence of alcohol or drugs, or both an intoxicant, or you are suspected of driving or being on duty time with respect to a commercial motor vehicle after consuming an intoxicating beverage.

SB338,13,17 This law enforcement agency now wants to test one or more samples of your breath, blood, or urine to determine the concentration of alcohol or drugs an intoxicant in your system. If any test shows more alcohol in your system than the law permits while driving, your operating privilege will be suspended. If you refuse to take any test that this agency requests, your operating privilege will be revoked and you will be subject to other penalties. The test results or the fact that you refused testing can be used against you in court. The law does not provide you with a right to contact an attorney before submitting to a chemical test.

SB338,13,21 If you take all of the requested tests, you may choose to take further tests. You may take the alternative test that this law enforcement agency provides free of charge. You also may have a test conducted by a qualified person of your choice at your expense. You, however, will have to make your own arrangements for that test.

SB338,13,24 If you have a commercial driver license or were operating a commercial motor vehicle, other consequences may result from positive test results or from refusing testing, such as being placed out of service or disqualified."

SB338,14,8 (5) (b) Blood may be withdrawn from the person arrested for violation of s. 346.63 (1), (2), (2m), (5), or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, or a local ordinance in conformity with s. 346.63 (1), (2m), or (5), or as provided in sub. (3) (am) or (b) to determine the presence or quantity of alcohol, a controlled substance, a controlled substance analog or any other drug, or any combination of alcohol, controlled substance, controlled substance analog and any other drug an intoxicant in the blood only by a physician, registered nurse, medical technologist, physician assistant, or person acting under the direction of a physician.

Note: Section 343.305 (4), stats., requires that a law enforcement officer provide a person specified notifications at the time that a chemical test specimen is requested. This Section adds to the notice a provision that when a chemical test specimen is requested, the person to be tested does not have the right to contact an attorney prior to testing.

SB338, s. 14 Section 14. 343.305 (5) (d) of the statutes is repealed and recreated to read:

SB338,14,13 343.305 (5) (d) The results of a test administered in accordance with this section are admissible on the issue of whether a person was under the influence of an intoxicant or any issue relating to the person's alcohol concentration in a civil or criminal proceeding in which the person is alleged to have done any of the following:

SB338,14,15 1. Driven or operated a motor vehicle while under the influence of an intoxicant.

SB338,14,16 2. Had a prohibited alcohol concentration.

SB338,14,18 3. Driven or operated or been on duty time with respect to a commercial motor vehicle in violation of s. 346.63 (7).

SB338, s. 15 Section 15. 343.305 (5) (e) of the statutes is created to read:

SB338,14,21 343.305 (5) (e) Test results under this section shall be given the effect required under s. 885.235.

SB338, s. 16 Section 16. 343.305 (6) (a) of the statutes is amended to read:

SB338,15,12 343.305 (6) (a) Chemical analyses of blood or urine to be considered valid under this section shall have been performed substantially according to methods approved by the laboratory of hygiene and by an individual possessing a valid permit to perform the analyses issued by the department of health and family services. The department of health and family services shall approve laboratories for the purpose of performing chemical analyses of blood or urine for alcohol, controlled substances or controlled substance analogs an intoxicant and shall develop and administer a program for regular monitoring of the laboratories. A list of approved laboratories shall be provided to all law enforcement agencies in the state. Urine specimens are to be collected by methods specified by the laboratory of hygiene. The laboratory of hygiene shall furnish an ample supply of urine and blood specimen containers to permit all law enforcement officers to comply with the requirements of this section.

SB338, s. 17 Section 17 . 343.305 (9) (a) (intro.) and 4. of the statutes are amended to read:

SB338,16,2 343.305 (9) (a) (intro.) If a person refuses to take a test under sub. (3) (a), the law enforcement officer shall immediately take possession of the person's license and prepare a notice of intent to revoke, by court order under sub. (10), the person's operating privilege. If the person was driving or operating a commercial motor vehicle, the officer shall issue an out-of-service order to the person for the 24 hours after the refusal and notify the department in the manner prescribed by the department. The officer shall issue a copy of the notice of intent to revoke the privilege to the person and submit or mail a copy with the person's license to the clerk of the circuit court for the county in which the arrest under sub. (3) (a) was made. The officer shall also mail a copy of the notice of intent to revoke to the district attorney for that county and the department. The notice of intent to revoke the person's operating privilege shall contain substantially all of the following information:

SB338,16,7 4. That the person may request a hearing on the revocation within 10 days by mailing or delivering a written request to the clerk of the appropriate circuit court whose address is specified in the notice. If no request for a hearing is received within the 10-day period, the revocation period commences 30 days after the notice is issued.

SB338, s. 18 Section 18. 343.305 (9) (a) 5. a. and c. of the statutes are amended to read:

SB338,16,19 343.305 (9) (a) 5. a. Whether the officer had probable cause to believe the person was driving or operating a motor vehicle while under the influence of alcohol, a controlled substance or a controlled substance analog or any combination of alcohol, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders the person incapable of safely driving, or under the combined influence of alcohol and any other drug to a degree which renders the person incapable of safely driving an intoxicant or having a prohibited alcohol concentration or, if the person was driving or operating a commercial motor vehicle, an alcohol concentration of 0.04 or more and whether the person was lawfully placed under arrest for violation of s. 346.63 (1), (2m), or (5) or a local ordinance in conformity therewith or s. 346.63 (2) or (6), 940.09 (1), or 940.25.

SB338,16,24 c. Whether the person refused to permit the test. The person shall not be considered to have refused the test if it is shown by a preponderance of evidence that the refusal was due to a physical inability to submit to the test due to a physical disability or disease unrelated to the use of alcohol, controlled substances, controlled substance analogs or other drugs an intoxicant.

SB338, s. 19 Section 19. 343.305 (9) (am) (intro.) and 4. of the statutes are amended to read:

SB338,17,12 343.305 (9) (am) (intro.) If a person driving or operating or on duty time with respect to a commercial motor vehicle refuses a test under sub. (3) (am), the law enforcement officer shall immediately take possession of the person's license, issue an out-of-service order to the person for the 24 hours after the refusal and notify the department in the manner prescribed by the department, and prepare a notice of intent to revoke, by court order under sub. (10), the person's operating privilege. The officer shall issue a copy of the notice of intent to revoke the privilege to the person and submit or mail a copy with the person's license to the clerk of the circuit court for the county in which the refusal is made. The officer shall also mail a copy of the notice of intent to revoke to the district attorney for that county and the department. The notice of intent to revoke the person's operating privilege shall contain substantially all of the following information:

SB338,17,17 4. That the person may request a hearing on the revocation within 10 days by mailing or delivering a written request to the clerk of the appropriate circuit court whose address is specified in the notice. If no request for a hearing is received within the 10-day period, the revocation period commences 30 days after the notice is issued.

SB338, s. 20 Section 20 . 343.305 (9) (am) 5. a. and c. of the statutes are amended to read:

SB338,17,22 343.305 (9) (am) 5. a. Whether the officer detected any presence of alcohol, controlled substance, controlled substance analog or other drug, or a combination thereof, an intoxicant on the person or had reason to believe that the person was violating or had violated s. 346.63 (7).

SB338,18,2 c. Whether the person refused to permit the test. The person shall not be considered to have refused the test if it is shown by a preponderance of evidence that the refusal was due to a physical inability to submit to the test due to a physical disability or disease unrelated to the use of alcohol, controlled substances, controlled substance analogs or other drugs an intoxicant.

Note: Sections 17 to 20 amend s. 343.305 (9) (a) and (am), stats., to clarify that the notice of intent to revoke a person's operating privilege must include the address of the clerk of the appropriate circuit court that may hold a revocation hearing.

SB338, s. 21 Section 21. 343.305 (9) (c) of the statutes is amended to read:

SB338,18,9 343.305 (9) (c) If a law enforcement officer informs the circuit court that a person has refused to submit to a test under sub. (3) (a) or (am), the court shall be prepared to hold any requested hearing to determine if the refusal was proper. The scope of the hearing shall be limited to the issues outlined in par. (a) 5. or (am) 5. Neither party is entitled to pretrial discovery. Section 967.055 applies to any hearing under this subsection.

Note: This Section amends s. 343.305 (9) (c), stats., to clarify that pretrial discovery is not available in a refusal hearing. This amendment reverses the holding in State v. Schoepp, 204 Wis. 2d 266 (Ct. App. 1996).

SB338, s. 22 Section 22. 343.305 (10) (c) 1. (intro.) of the statutes is amended to read:

SB338,18,19 343.305 (10) (c) 1. (intro.) Except as provided in subd. 1. a. or b., the court shall order the person to submit to and comply with an assessment by an approved public treatment facility as defined in s. 51.45 (2) (c) for examination of the person's use of alcohol, controlled substances or controlled substance analogs an intoxicant and development of a driver safety plan for the person. The court shall notify the person and the department of transportation of the assessment order. The court shall also notify the person that noncompliance with assessment or the driver safety plan will result in license suspension until the person is in compliance. The assessment order shall:

SB338, s. 23 Section 23. 343.305 (10) (d) of the statutes, as affected by 1997 Wisconsin Act 84, is amended to read:

SB338,20,15 343.305 (10) (d) The assessment report shall order compliance with a driver safety plan. The report shall inform the person of the fee provisions under s. 46.03 (18) (f). The driver safety plan may include a component that makes the person aware of the effect of his or her offense on a victim and a victim's family. The driver safety plan may include treatment for the person's misuse, abuse, or dependence on alcohol, controlled substances or controlled substance analogs, an intoxicant or attendance at a school under s. 345.60, or both. If the plan requires inpatient treatment, the treatment shall not exceed 30 days. A driver safety plan under this paragraph shall include a termination date consistent with the plan which shall not extend beyond one year. The county department under s. 51.42 shall assure notification of the department of transportation and the person of the person's compliance or noncompliance with assessment and treatment. The school under s. 345.60 shall notify the department, the county department under s. 51.42, and the person of the person's compliance or noncompliance with the requirements of the school. Nonpayment of the assessment fee or, if the person has the ability to pay, nonpayment of the driver safety plan fee is noncompliance with the court order. If the department is notified of noncompliance, other than for nonpayment of the assessment fee or driver safety plan fee, it shall revoke the person's operating privilege until the county department under s. 51.42 or the school under s. 345.60 notifies the department that the person is in compliance with assessment or the driver safety plan. If the department is notified that a person has not paid the assessment fee, or that a person with the ability to pay has not paid the driver safety plan fee, the department shall suspend the person's operating privilege for a period of 2 years or until it receives notice that the person has paid the fee, whichever occurs first. The department shall notify the person of the suspension or revocation, the reason for the suspension or revocation, and the person's right to a review. A person may request a review of a revocation based upon failure to comply with a driver safety plan within 10 days of notification. The review shall be handled by the subunit of the department of transportation designated by the secretary. The issues at the review are limited to whether the driver safety plan, if challenged, is appropriate and whether the person is in compliance with the assessment order or the driver safety plan. The review shall be conducted within 10 days after a request is received. If the driver safety plan is determined to be inappropriate, the department shall order a reassessment and if the person is otherwise eligible, the department shall reinstate the person's operating privilege. If the person is determined to be in compliance with the assessment or driver safety plan, and if the person is otherwise eligible, the department shall reinstate the person's operating privilege. If there is no decision within the 10-day period, the department shall issue an order reinstating the person's operating privilege until the review is completed, unless the delay is at the request of the person seeking the review.

SB338, s. 24 Section 24. 343.307 (1) (d) and (2) (e) of the statutes are amended to read:

SB338,20,23 343.307 (1) (d) Convictions under the law of another jurisdiction that prohibits refusal of chemical testing or use of a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof an intoxicant, or with an excess or specified range of alcohol concentration, or under the influence of any drug to a degree that renders the person incapable of safely driving, as those or substantially similar terms are used in that jurisdiction's laws.

SB338,21,4 (2) (e) Convictions under the law of another jurisdiction that prohibits refusal of chemical testing or use of a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof an intoxicant, or with an excess or specified range of alcohol concentration, or under the influence of any drug to a degree that renders the person incapable of safely driving, as those or substantially similar terms are used in that jurisdiction's laws.

SB338, s. 25 Section 25. 343.31 (1) (am) and (ar) of the statutes are amended to read:

SB338,21,13 343.31 (1) (am) Injury Bodily harm by the operation of a vehicle while under the influence of an intoxicant, a controlled substance or a controlled substance analog, or any combination of an intoxicant, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving or while the person has a prohibited alcohol concentration and which is criminal under s. 346.63 (2).

SB338,21,16 (ar) Injury Bodily harm 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 and which is criminal under s. 346.63 (6).

SB338, s. 26 Section 26. 343.31 (1) (b) of the statutes, as affected by 1997 Wisconsin Act 84, is amended to read:

SB338,21,24 343.31 (1) (b) Upon conviction for operation of a motor vehicle while under the influence of an intoxicant, controlled substance, controlled substance analog or a combination thereof, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving, in accordance with the order of the court.

SB338, s. 27 Section 27. 343.31 (2) and (3) (b) of the statutes, as affected by 1997 Wisconsin Act 84, are amended to read:

SB338,22,16 343.31 (2) The department shall revoke the operating privilege of any resident upon receiving notice of the conviction of such person in another jurisdiction for an offense therein which, if committed in this state, would have been cause for revocation under this section or for revocation under s. 343.30 (1q). Such offenses shall include violation of any law of another jurisdiction that prohibits use of a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof an intoxicant, or with an excess or specified range of alcohol concentration, or under the influence of any drug to a degree that renders the person incapable of safely driving, as those or substantially similar terms are used in that jurisdiction's laws. Upon receiving similar notice with respect to a nonresident, the department shall revoke the privilege of the nonresident to operate a motor vehicle in this state. Such revocation shall not apply to the operation of a commercial motor vehicle by a nonresident who holds a valid commercial driver license issued by another state.

SB338,22,23 (3) (b) If the revocation results from a first conviction of operation of a motor vehicle while under the influence of an intoxicant, controlled substance, controlled substance analog or a combination thereof, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving and the conviction occurs in another jurisdiction, the period of revocation shall be 6 months.

SB338, s. 28 Section 28. 343.315 (2) (a) 1. and 6. of the statutes are amended to read:

SB338,23,8 343.315 (2) (a) 1. Section 346.63 (1) (a) or a local ordinance in conformity therewith or a law of a federally recognized American Indian tribe or band in this state in conformity with s. 346.63 (1) (a) or the law of another jurisdiction prohibiting driving or operating a motor vehicle while intoxicated or under the influence of alcohol, a controlled substance, a controlled substance analog or a combination thereof, or under the influence of any drug which renders the person incapable of safely driving an intoxicant, as those or substantially similar terms are used in that jurisdiction's laws.

SB338,23,18 6. Section 346.63 (2) or (6), 940.09 (1), or 940.25 or a law of a federally recognized American Indian tribe or band in this state in conformity with s. 346.63 (2) or (6), 940.09 (1), or 940.25, or the law of another jurisdiction prohibiting causing or inflicting injury bodily harm, great bodily harm, or death through use of a motor vehicle while intoxicated or under the influence of alcohol, a controlled substance, a controlled substance analog or a combination thereof an intoxicant, or with an alcohol concentration of 0.04 or more or with an excess or specified range of alcohol concentration, or under the influence of any drug to a degree that renders the person incapable of safely driving, as those or substantially similar terms are used in that jurisdiction's laws.

SB338, s. 29 Section 29. 343.44 (1) (a) and (b) of the statutes are amended to read:

SB338,24,4 343.44 (1) (a) Operating while suspended. No person whose operating privilege has been duly suspended under the laws of this state may operate a motor vehicle upon any highway in this state during the period of suspension or in violation of any restriction on an occupational license issued to the person during the period of suspension. A person's knowledge that his or her operating privilege is suspended is not an element of the offense under this paragraph. In this paragraph, "restriction on an occupational license" means restrictions imposed under s. 343.10 (5) (a) as to hours of the day, area, routes or purpose of travel, vehicles allowed to be operated, use of an ignition interlock device, sobriety, or use of alcohol, controlled substances or controlled substance analogs an intoxicant.

SB338,24,13 (b) Operating while revoked. No person whose operating privilege has been duly revoked under the laws of this state may knowingly operate a motor vehicle upon any highway in this state during the period of revocation or in violation of any restriction on an occupational license issued to the person during the period of revocation. In this paragraph, "restriction on an occupational license" means restrictions imposed under s. 343.10 (5) (a) as to hours of the day, area, routes or purpose of travel, vehicles allowed to be operated, use of an ignition interlock device, sobriety, or use of alcohol, controlled substances or controlled substance analogs an intoxicant.

SB338, s. 30 Section 30. 344.576 (2) (b) and (c) of the statutes are amended to read:

SB338,24,17 344.576 (2) (b) The damage occurs while the renter or authorized driver operates the private passenger vehicle in this state while under the influence of an intoxicant or other drug, as described under s. 346.63 (1) (a) or (b) or (2m).

SB338,24,20 (c) The damage occurs while the renter or authorized driver operates the private passenger vehicle in another state while under the influence of an intoxicant or other drug, as described in the laws of that state.

SB338, s. 31 Section 31. 345.24 (1) of the statutes is amended to read:

SB338,25,3 345.24 (1) A person arrested under s. 346.63 (1) or (5) or an ordinance in conformity therewith 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 0.02, but the person may be released to his or her attorney, spouse, relative, or other responsible adult at any time after arrest.

Note: Current law regarding an officer's action after an arrest for driving under the influence of an intoxicant provides that the arrested person must be released when the person has an alcohol concentration less than 0.04. This Section amends the statute to provide that the immediate release alcohol concentration level is reduced to less than 0.02.

SB338, s. 32 Section 32. 346.17 (3) (b) of the statutes is amended to read:

SB338,25,8 346.17 (3) (b) If the violation results in bodily harm, as defined in s. 939.22 (4), to another, or causes damage to the property of another, as defined in s. 939.22 (28), the person shall be fined not less than $1,000 nor more than $10,000 and may be imprisoned for not more than 3 years.

SB338, s. 33 Section 33. 346.17 (3) (c) of the statutes is amended to read:

SB338,25,12 346.17 (3) (c) If the violation results in great bodily harm, as defined in s. 939.22 (14), to another, the person shall be fined not less than $1,100 nor more than $10,000 and may be imprisoned for not more than 3 years.

SB338, s. 34 Section 34. 346.61 of the statutes is amended to read:

SB338,25,22 346.61 Applicability of sections relating to reckless and drunken driving. In addition to being applicable upon highways, ss. 346.62 to 346.64 are applicable upon all premises held out to the public for use of their motor vehicles, all premises provided by employers to employees for the use of their motor vehicles and all premises provided to tenants of rental housing in buildings of 4 or more units for the use of their motor vehicles, whether such premises are publicly or privately owned and whether or not a fee is charged for the use thereof. Sections 346.62 to 346.64 do not apply to private parking areas at farms or single-family residences and frozen waters.

Note: Section 346.61, stats., provides that statutory provisions relating to reckless and drunken driving are applicable upon highways, all premises held out to the public for use of their motor vehicles, all premises provided by employers to employees for the use of their motor vehicles, and all premises provided to tenants of rental housing in buildings of 4 or more units for the use of their motor vehicles, whether the premises are publicly or privately owned and whether or not a fee is charged for their use. An exception exists for private parking areas at farms or single-family residences. This Section amends s. 346.61, stats., to provide that the statutes relating to reckless and drunken driving are applicable upon highways, all premises, and frozen waters.

SB338, s. 35 Section 35. 346.62 (1) (a) and (b) of the statutes are repealed.

SB338, s. 36 Section 36. 346.63 (title) of the statutes is amended to read:

SB338,26,3 346.63 (title) Operating under influence of intoxicant or other drug.

SB338, s. 37 Section 37 . 346.63 (1) (a) and (b) of the statutes are amended to read:

SB338,26,11 346.63 (1) (a) Under the influence of an intoxicant , a controlled substance, a controlled substance analog or any combination of an intoxicant, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving; or. A violation of this paragraph is not an included offense of s. 346.63 (2), 940.09 (1), or 940.25 (1).

SB338,26,13 (b) The person has a prohibited alcohol concentration. A violation of this paragraph is not an included offense of s. 346.63 (2), 940.09 (1), or 940.25 (1).

Note: This Section clarifies that the crime of driving or operating a motor vehicle while under the influence of an intoxicant or with a prohibited alcohol concentration is not an included offense of the following crimes: causing bodily harm while intoxicated; homicide by intoxicated use of a vehicle; or injury by intoxicated use of a vehicle.

SB338, s. 38 Section 38 . 346.63 (2) (a) (intro.) and 1. and (b) of the statutes are amended to read:

SB338,26,17 346.63 (2) (a) (intro.) It is unlawful for any person to cause injury bodily harm to another person by the operation of a vehicle while:

SB338,27,6 1. Under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving; or

SB338,27,15 (b) 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 bodily harm 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, a controlled substance, a controlled substance analog or a combination thereof, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving or did not have a prohibited alcohol concentration described under par. (a) 2.

Note: Section 346.63 (2) and (6), stats., provides that a person may not cause injury while operating a motor vehicle under the influence of an intoxicant or other drug. This Section and Section 39 also prohibit the causing of bodily harm. The term "bodily harm" is defined in Section 2 to mean physical pain or injury, illness or any impairment of physical condition. The definition is adopted from s. 939.22 (4), stats.

SB338, s. 39 Section 39 . 346.63 (6) (a) and (c) of the statutes are amended to read:

SB338,27,19 346.63 (6) (a) No person may cause injury bodily harm 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.

SB338,28,5 (c) Under par. (a), the person charged has a defense if it appears by a preponderance of the evidence that the injury bodily harm would have occurred even if he or she had not been under the influence of an intoxicant, a controlled substance, a controlled substance analog or a combination thereof, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving or did not have an alcohol concentration described under par. (a).

SB338, s. 40 Section 40. 346.637 (1) and (2) of the statutes are amended to read:

SB338,28,10 346.637 (1) The laws relating to operating a motor vehicle and drinking alcohol, using controlled substances or controlled substance analogs, or using any combination of alcohol, controlled substances and controlled substance analogs an intoxicant.