SB338: Bill Text

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.

SB338,28,13 (2) The effects of alcohol, controlled substances or controlled substance analogs, an intoxicant or the use of them in any combination an intoxicant, on a person's ability to operate a motor vehicle.

SB338, s. 41 Section 41. 346.65 (2) (e) of the statutes is amended to read:

SB338,28,21 346.65 (2) (e) Except as provided in pars. (f) and (g), shall be fined not less than $600 nor more than $2,000 and imprisoned for not less than 6 months nor more than 5 7 years and 6 months if the number of convictions under ss. 940.09 (1) and 940.25 in the person's lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1), equals 5 or more, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one.

Note: This Section increases the maximum term of imprisonment for a person with 5 or more suspensions, revocations and convictions related to intoxicated operation from 5 years to 7 years and 6 months. The increase is similar to adjustments made in 1997 Wisconsin Act 283.

SB338, s. 42 Section 42. 346.65 (2) (g) 4. of the statutes is created to read:

SB338,29,2 346.65 (2) (g) 4. The increased fines provided in this paragraph do not apply if a person convicted is subject to par. (f).

Note: Current law provides that if a person is convicted of operating a motor vehicle while intoxicated, and if a minor passenger under 16 years of age is in or on a vehicle at the time of the violation, the applicable minimum and maximum forfeitures, fines or imprisonment for the convictions are doubled. Also, the applicable minimum and maximum fines will be doubled, tripled or quadrupled if the operator of the motor vehicle had an alcohol concentration of 0.17 to 0.199, 0.20 to 0.249, or 0.25 or above, respectively. This draft clarifies that the increased fines for increasing alcohol concentrations may not be applied if the penalty relating to a minor passenger under the age of 16 years is applicable to the offense.

SB338, s. 43 Section 43. 346.65 (2g) (b) and (c) and (2i) of the statutes are amended to read:

SB338,29,18 346.65 (2g) (b) The court may require a person ordered to perform community service work under par. (a) or (ag), or under s. 973.05 (3) (a) if that person's fine resulted from violating s. 346.63 (2), 940.09 (1), or 940.25, to participate in community service work that demonstrates the adverse effects of substance abuse or of operating a vehicle while under the influence of an intoxicant or other drug, including working at an alcoholism treatment facility approved under s. 51.45, an emergency room of a general hospital, or a driver awareness program under s. 346.637. The court may order the person to pay a reasonable fee, based on the person's ability to pay, to offset the cost of establishing, maintaining , and monitoring the community service work ordered under this paragraph. If the opportunities available to perform community service work are fewer in number than the number of defendants eligible under this subsection, the court shall, when making an order under this paragraph, give preference to defendants who were under 21 years of age at the time of the offense. All provisions of par. (am) apply to any community service work ordered under this paragraph.

SB338,30,9 (c) If there was a minor passenger under 16 years of age in the motor vehicle or commercial motor vehicle at the time of the violation that gave rise to the conviction, the court may require a person ordered to perform community service work under par. (a) or (ag), or under s. 973.05 (3) (a) if that person's fine resulted from violating s. 346.63 (2), (5) (a), or (6) (a), 940.09 (1), or 940.25, to participate in community service work that benefits children or that demonstrates the adverse effects on children of substance abuse or of operating a vehicle while under the influence of an intoxicant or other drug. The court may order the person to pay a reasonable fee, based on the person's ability to pay, to offset the cost of establishing, maintaining, and monitoring the community service work ordered under this paragraph.

SB338,31,9 (2i) In addition to the authority of the court under sub. (2g) and s. 973.05 (3) (a), the court may order a defendant subject to sub. (2), or a defendant subject to s. 973.05 (3) (a) who violated s. 346.63 (2), 940.09 (1), or 940.25, to visit a site that demonstrates the adverse effects of substance abuse or of operating a vehicle while under the influence of an intoxicant or other drug, including an alcoholism treatment facility approved under s. 51.45 or an emergency room of a general hospital in lieu of part or all of any forfeiture imposed or in addition to any penalty imposed. The court may order the defendant to pay a reasonable fee, based on the person's ability to pay, to offset the costs of establishing, maintaining, and monitoring the visits ordered under this subsection. The court may order a visit to the site only if agreed to by the person responsible for the site. If the opportunities available to visit sites under this subsection are fewer than the number of defendants eligible for a visit, the court shall, when making an order under this subsection, give preference to defendants who were under 21 years of age at the time of the offense. The court shall ensure that the visit is monitored. A visit to a site may be ordered for a specific time and a specific day to allow the defendant to observe victims of vehicle accidents involving intoxicated drivers. If it appears to the court that the defendant has not complied with the court order to visit a site or to pay a reasonable fee, the court may order the defendant to show cause why he or she should not be held in contempt of court. Any organization or agency acting in good faith to which a defendant is assigned pursuant to an order under this subsection has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the defendant. The issuance or possibility of the issuance of an order under this subsection does not entitle an indigent defendant who is subject to sub. (2) (a) to representation by counsel under ch. 977.

SB338, s. 44 Section 44. 346.65 (2q) and (2u) (a) of the statutes are amended to read:

SB338,31,13 346.65 (2q) Any person violating s. 346.63 (2m) shall forfeit $10. 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 346.63 (2m), the forfeiture is $20 $50.

SB338,31,14 (2u) (a) Any person violating s. 346.63 (7) shall forfeit $10 $50.

Note: Current law provides that a person under the legal drinking age must forfeit $10 if the person drives or operates a motor vehicle while the person has an alcohol concentration of more than 0.0 but not more than 0.1. If a minor passenger under 16 years of age is in the motor vehicle, the forfeiture is $20. This Section amends s. 346.65 (2q), stats., to provide that a violation of this absolute sobriety provision will result in a forfeiture of $50, regardless of whether there was a minor passenger in the motor vehicle at the time of the violation.

Section 346.63 (7), stats., imposes an absolute sobriety requirement on a person driving or operating, or on duty time with respect to, a commercial motor vehicle. The current penalty for a violation of this provision is a forfeiture of $10. This Section amends s. 346.65 (2u) (a), stats., to provide that a violation of the absolute sobriety provision will result in a forfeiture of $50.

SB338, s. 45 Section 45. 346.65 (3m) and (7) of the statutes are amended to read:

SB338,32,3 346.65 (3m) Any person violating s. 346.63 (2) or (6) shall be fined not less than $300 nor more than $2,000 and may be imprisoned for not less than 30 days nor more than one year in the county jail. 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 (2) or (6), the offense is a felony, the applicable minimum and maximum fines or periods of imprisonment for the conviction are doubled , and the place of imprisonment shall be determined under s. 973.02.

SB338,32,6 (7) A person convicted sentenced to imprisonment under sub. (2) (b), (c), (d), or (e) or, (2j) (b) or (c), or (3m) shall be required to remain in the county jail for not less than a 48-consecutive-hour period.

Note: Section 346.65 (3m), stats., provides that a person who causes injury while operating a motor vehicle under the influence of an intoxicant or drug must be fined not less than $300 nor more than $2,000 and may be imprisoned for not less than 30 days nor more than one year in the county jail. This Section amends s. 346.65 (3m) and (7), stats., to provide that, with respect to imprisonment, a violator may be imprisoned for not more than one year in the county jail. However, the violator will be required to remain in the county jail for not less than a 48-consecutive hour period if sentenced to imprisonment under the specified provisions of s. 346.65, stats.

SB338, s. 46 Section 46. 346.65 (8) of the statutes is created to read:

SB338,32,11 346.65 (8) When sentencing a person convicted for a violation of s. 346.63 (1), (2), or (6), a court may order the payment of restitution, using the applicable procedures under s. 800.093 or 973.20, for property damage caused by the person in the incident that resulted in the conviction.

Note: This Section authorizes a court to use statutory restitution procedures to impose a restitution requirement upon a person who causes property damage due to the intoxicated operation of a motor vehicle. Section 973.20, stats., currently may be used for this purpose with respect to ss. 940.09 and 940.25 regarding homicide or injury by intoxicated use of a vehicle.

SB338, s. 47 Section 47. 346.66 of the statutes is amended to read:

SB338,33,4 346.66 Applicability of sections relating to accidents and accident reporting. In addition to being applicable upon highways, ss. 346.67 to 346.70 are applicable upon frozen waters, 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. These sections do not apply to private parking areas at farms or single-family residences or to accidents involving only snowmobiles, all-terrain vehicles, or vehicles propelled by human power or drawn by animals.

Note: Section 346.66 provides that statutes relating to accidents and accident reporting 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 building 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 or to accidents involving only snowmobiles, all-terrain vehicles, or vehicles propelled by human power or drawn by animals. This Section amends s. 346.66, stats., to apply the statutes relating to accidents and accident reporting to frozen waters.

SB338, s. 48 Section 48. 351.02 (1) (a) 10. of the statutes is amended to read:

SB338,33,20 351.02 (1) (a) 10. Any offense under the law of another jurisdiction prohibiting conduct described in sections 6-207, 6-302, 10-102, 10-103, 10-104, 11-901, 11-902, 11-907 or 11-908 of the uniform vehicle code and model traffic ordinance (1987), or prohibiting homicide or manslaughter resulting from the operation of a motor vehicle, use of a motor vehicle in the commission of a felony, reckless or careless driving or driving a motor vehicle with wilful or wanton disregard for the safety of persons or property, driving or operating a motor vehicle while under the influence of alcohol, a controlled substance, a controlled substance analog or any other drug or a combination thereof as prohibited an intoxicant, refusal to submit to chemical testing, perjury or the making false statements or affidavits to a governmental agency in connection with the ownership or operation of a motor vehicle, failing to stop and identify oneself as the driver or operator in the event of a motor vehicle accident with a person or an attended motor vehicle or fleeing from or attempting to elude a police, law enforcement or other peace officer, as those or substantially similar terms are used in that jurisdiction's laws.

SB338, s. 49 Section 49. 800.08 (5) of the statutes is created to read:

SB338,34,6 800.08 (5) In municipal court, the results of a blood alcohol analysis, as shown by a certified copy of the analysis, are admissible, unless the defendant makes a written request to the municipal court for the personal appearance of the blood analyst and the person who drew the blood. The request shall be made not later than 10 days prior to the trial unless a later date is allowed by the court.

Note: This Section generally provides that a certified copy of a blood alcohol analysis is admissible as evidence in a municipal court trial. A defendant may compel the personal appearance of the blood analyst and the person who drew the defendant's blood if the defendant makes a written request to the court no later than 10 days before trial. The court may approve a later request for the personal appearances.

SB338, s. 50 Section 50. 885.235 (1) (b) and (c) of the statutes are repealed and recreated to read:

SB338,34,9 885.235 (1) (b) "Intoxicant" has the meaning given in s. 939.22 (19m).

SB338,34,11 (c) "Under the influence of an intoxicant" has the meaning given in s. 939.22 (42).

SB338, s. 51 Section 51. 885.235 (1) (bd) of the statutes is repealed.

SB338, s. 52 Section 52. 885.235 (1g) (a) of the statutes is amended to read:

SB338,34,18 885.235 (1g) (a) 1. The fact that the analysis shows that the person had an alcohol concentration of more than 0.0 but less than 0.08 is relevant evidence on the issue of being under the combined influence of alcohol and a controlled substance, a controlled substance analog or any other drug an intoxicant, but, except as provided in par. (d) or sub. (1m), is not to be given any prima facie effect.

SB338,35,2 2. The fact that the analysis shows that the person had an alcohol concentration of more than 0.0 but less than 0.1 is relevant evidence on the issue of being under the combined influence of alcohol and a controlled substance, a controlled substance analog or any other drug an intoxicant but, except as provided in par. (d) or sub. (1m), is not to be given any prima facie effect.

SB338, s. 53 Section 53. 895.53 (2) of the statutes is amended to read:

SB338,35,10 895.53 (2) Any person withdrawing blood at the request of a traffic officer, law enforcement officer or conservation warden for the purpose of determining the presence or quantity of alcohol, controlled substances, controlled substance analogs or any combination of alcohol, controlled substances and controlled substance analogs an intoxicant, as defined in s. 340.01 (25d), is immune from any civil or criminal liability for the act, except for civil liability for negligence in the performance of the act.

SB338, s. 54 Section 54. 939.22 (19m) of the statutes is created to read:

SB338,35,12 939.22 (19m) "Intoxicant" means any of the following:

SB338,35,14 (a) Alcohol, a controlled substance, a controlled substance analog, any other drug, or a vapor-releasing substance.

SB338,35,16 (b) Any combination of alcohol, a controlled substance, a controlled substance analog, any other drug, or vapor-releasing substance.

Note: This Section creates a definition of the term "intoxicant" for the criminal code. The definition is the same as that used in s. 340.01 (25d) as created in Section 3 of the bill.

SB338, s. 55 Section 55. 939.22 (42) of the statutes is repealed and recreated to read:

SB338,35,18 939.22 (42) "Under the influence of an intoxicant" means any of the following:

SB338,35,22 (a) A condition in which a person's ability to operate a vehicle, because of the consumption or use of an intoxicant, is impaired to the extent that the person is less able to exercise the clear judgment and steady hand necessary to handle and control a vehicle.

SB338,36,2 (b) A condition in which a person's ability to handle a firearm or airgun is materially impaired because of the consumption or use of an intoxicant.

Note: Section 939.22 (42), stats., defines the term "under the influence of an intoxicant" for the criminal code. The statutory provision is repealed and recreated to conform to the definition of the same term in s. 340.01 (73e) as created in Section 3 of the bill.

SB338, s. 56 Section 56. 949.08 (2) (e) and (em) of the statutes are amended to read:

SB338,36,10 949.08 (2) (e) Is an adult passenger in the offender's vehicle and the crime involved is specified in s. 346.63 (2) or 940.25 and the passenger knew the offender was under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, controlled substance and controlled substance analog, or had a prohibited alcohol concentration, as defined in s. 340.01 (46m). This paragraph does not apply if the victim is also a victim of a crime specified in s. 940.30, 940.305, 940.31 or 948.30.

SB338,36,17 (em) Is an adult passenger in the offender's commercial motor vehicle and the crime involved is specified in s. 346.63 (6) or 940.25 and the passenger knew the offender was under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, controlled substance and controlled substance analog, or had an alcohol concentration of 0.04 or more but less than 0.1. This paragraph does not apply if the victim is also a victim of a crime specified in s. 940.30, 940.305, 940.31 or 948.30.

SB338, s. 57 Section 57. 967.055 (title) and (1) (a) of the statutes are amended to read:

SB338,37,6 967.055 (title) Prosecution of offenses; operation of a motor vehicle or motorboat; alcohol, or intoxicant or drug. (1) (a) The legislature intends to encourage the vigorous prosecution of offenses concerning the operation of motor vehicles by persons under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, controlled substance and 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 as defined in s. 340.01 (25d), or having a prohibited alcohol concentration, as defined in s. 340.01 (46m), or offenses concerning the operation of commercial motor vehicles by persons with an alcohol concentration of 0.04 or more.

SB338, s. 58 Section 58. 967.055 (1m) of the statutes is repealed.

SB338, s. 59 Section 59. 967.055 (2) (a) of the statutes is amended to read:

SB338,38,2 967.055 (2) (a) Notwithstanding s. 971.29, if the prosecutor seeks to dismiss or amend a charge under s. 346.63 (1) 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 an improper refusal under s. 343.305, the prosecutor shall apply to the court. The application shall state the reasons for the proposed amendment or dismissal. The court may approve the application only if the court finds that the proposed amendment or dismissal is consistent with the public's interest in deterring the operation of motor vehicles by persons who are under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, controlled substance and 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 as defined in s. 340.01 (25d), or in deterring the operation of commercial motor vehicles by persons with an alcohol concentration of 0.04 or more. The court may not approve an application to amend the vehicle classification from a commercial motor vehicle to a noncommercial motor vehicle unless there is evidence in the record that the motor vehicle being operated by the defendant at the time of his or her arrest was not a commercial motor vehicle.

SB338, s. 60 Section 60. Initial applicability.

SB338,38,9 (1) This act first applies to violations committed or refusals occurring on the effective date of this subsection, but does not preclude the counting of other convictions, suspensions, or revocations as prior convictions, suspensions, or revocations for purposes of administrative action by the department of transportation, sentencing by a court, or revocation or suspension of motor vehicle operating privileges.

SB338, s. 61 Section 61. Effective date.

SB338,38,11 (1) This act takes effect on January 1, 2003.

SB338,38,12 (End)