AB458: Bill Text

Under current law, a person may not operate a motor vehicle, an all-terrain vehicle (ATV), a snowmobile, or a motorboat if he or she: 1) has an alcohol concentration of 0.1 or more in his or her blood, breath, or urine; or 2) is under the influence of an intoxicant (alcohol, drugs, or a combination of alcohol and drugs) that impairs his or her ability to operate the motor vehicle, ATV, snowmobile, or motorboat safely. Penalties for a person who violates one of these prohibitions (which include suspension of the person's driver's license) depend on the number of prior offenses, whether the person injured or killed another as a result of operating the motor vehicle, ATV, snowmobile, or motorboat, and, if another person was injured, the extent of that person's injury. Current law, however, provides a person a defense to prosecution for causing injury or death if the person can prove that the injury or death would have occurred even if he or she had been exercising due care and did not have a prohibited alcohol concentration or was not under the influence of an intoxicant. Current law also prohibits a person from operating or going armed with a firearm while under the influence of an intoxicant, with more severe penalties applying if another person is killed as a result.

This bill prohibits a person from operating a motor vehicle, an ATV, a snowmobile, or a motorboat or operating or going armed with a firearm if he or she has a detectable amount of a restricted controlled substance in his or her blood, regardless of whether the person's ability to operate the motor vehicle, ATV, snowmobile, or motorboat safely has been impaired. The bill defines a restricted controlled substance as: 1) delta-9-tetrahydrocannabinol (the primary active ingredient in marijuana); 2) a controlled substance (other than marijuana) included in Schedule I under the state's controlled substance law, which includes heroin, LSD, PCP, and certain "club drugs"; 3) cocaine or any of its metabolites; and 4) methamphetamine. Penalties for a person who violates one of these prohibitions are the same as those that would apply if the person had a prohibited alcohol concentration or had been under the influence of an intoxicant. The bill, however, provides a person who has a detectable amount of a restricted controlled substance in his or her blood a defense to causing death or injury if the person can prove that the injury or death would have occurred even if he or she had been exercising due care and did not have a detectable amount of a restricted controlled substance in his or her blood. In addition, a person has a defense to prosecution for any offense created under the bill that is based on the person having a detectable amount of methamphetamine or delta-9-tetrahydrocannabinol in his or her blood if the person can prove that he or she had a valid prescription for methamphetamine, a drug that metabolizes into methamphetamine, or delta-9-tetrahydrocannabinol.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report concerning the proposed penalty and the costs or savings that are likely to result if the bill is enacted.

Because this bill proposes to revoke a person's operating privilege upon conviction for an offense, the Department of Transportation, as required by law, will prepare a report to be printed as an appendix to this bill.

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:

AB458, s. 1 Section 1. 23.33 (1) (jo) of the statutes is created to read:

AB458,3,2 23.33 (1) (jo) "Restricted controlled substance" means any of the following:

AB458,3,4 1. A controlled substance included in schedule I under ch. 961 other than a tetrahydrocannabinol.

AB458,3,6 2. A controlled substance analog, as defined in s. 961.01 (4m), of a controlled substance described in subd. 1.

AB458,3,7 3. Cocaine or any of its metabolites.

AB458,3,8 4. Methamphetamine.

AB458,3,9 5. Delta-9-tetrahydrocannabinol.

AB458, s. 2 Section 2. 23.33 (4c) (a) 2m. of the statutes is created to read:

AB458,4,4 23.33 (4c) (a) 2m. `Operating with a restricted controlled substance.' No person may engage in the operation of an all-terrain vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.

AB458, s. 3 Section 3. 23.33 (4c) (a) 4. of the statutes is amended to read:

AB458,4,15 23.33 (4c) (a) 4. `Related charges.' A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of subd. 1. or 2. or both any combination of subd. 1., 2., or 2m. for acts arising out of the same incident or occurrence. If the person is charged with violating both subds. 1. and 2. any combination of subd. 1., 2., or 2m., the offenses shall be joined. If the person is found guilty of both subds. 1. and 2. any combination of subd. 1., 2., or 2m. for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under sub. (13) (b) 2. and 3. Subdivisions 1. and, 2., and 2m. each require proof of a fact for conviction which the other does others do not require.

AB458, s. 4 Section 4. 23.33 (4c) (a) 5. of the statutes is created to read:

AB458,4,22 23.33 (4c) (a) 5. `Defenses.' In an action under subd. 2m. that is based on the defendant allegedly having a detectable amount of methamphetamine or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors or delta-9-tetrahydrocannabinol.

AB458, s. 5 Section 5. 23.33 (4c) (b) 2m. of the statutes is created to read:

AB458,5,2 23.33 (4c) (b) 2m. `Causing injury while operating with a restricted controlled substance.' No person who has a detectable amount of a restricted controlled substance in his or her blood may cause injury to another person by the operation of an all-terrain vehicle.

AB458, s. 6 Section 6. 23.33 (4c) (b) 3. of the statutes is amended to read:

AB458,5,13 23.33 (4c) (b) 3. `Related charges.' A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of subd. 1. or 2. or both any combination of subd. 1., 2., or 2m. for acts arising out of the same incident or occurrence. If the person is charged with violating both subds. 1. and 2. any combination of subd. 1., 2., or 2m. in the complaint, the crimes shall be joined under s. 971.12. If the person is found guilty of both subds. 1. and 2. any combination of subd. 1, 2., or 2m. for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under sub. (13) (b) 2. and 3. Subdivisions 1. and, 2., and 2m. each require proof of a fact for conviction which the other does others do not require.

AB458, s. 7 Section 7. 23.33 (4c) (b) 4. of the statutes is renumbered 23.33 (4c) (b) 4. a. and amended to read:

AB458,5,21 23.33 (4c) (b) 4. a. `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 or more, or did not have a detectable amount of a restricted controlled substance in his or her blood.

AB458, s. 8 Section 8. 23.33 (4c) (b) 4. b. of the statutes is created to read:

AB458,6,3 23.33 (4c) (b) 4. b. In an action under subd. 2m. that is based on the defendant allegedly having a detectable amount of methamphetamine or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors or delta-9-tetrahydrocannabinol.

AB458, s. 9 Section 9. 23.33 (4p) (d) of the statutes is amended to read:

AB458,6,14 23.33 (4p) (d) Admissibility; effect of test results; other evidence. The results of a chemical test required or administered under par. (a), (b) or (c) are admissible in any civil or criminal action or proceeding arising out of the acts committed by a person alleged to have violated the intoxicated operation of an all-terrain vehicle law on the issue of whether the person was under the influence of an intoxicant or the issue of whether the person had alcohol concentrations at or above specified levels or a detectable amount of a restricted controlled substance in his or her blood. Results of these chemical tests shall be given the effect required under s. 885.235. This subsection does not limit the right of a law enforcement officer to obtain evidence by any other lawful means.

AB458, s. 10 Section 10. 23.33 (13) (b) 1. of the statutes is amended to read:

AB458,6,18 23.33 (13) (b) 1. Except as provided under subds. 2. and 3., a person who violates sub. (4c) (a) 1. or, 2., or 2m. or (4p) (e) shall forfeit not less than $150 nor more than $300.

AB458, s. 11 Section 11. 23.33 (13) (b) 2. of the statutes is amended to read:

AB458,6,24 23.33 (13) (b) 2. Except as provided under subd. 3., a person who violates sub. (4c) (a) 1. or, 2., or 2m. or (4p) (e) and who, within 5 years prior to the arrest for the current violation, was convicted previously under the intoxicated operation of an all-terrain vehicle law or the refusal law shall be fined not less than $300 nor more than $1,000 and shall be imprisoned not less than 5 days nor more than 6 months.

AB458, s. 12 Section 12. 23.33 (13) (b) 3. of the statutes is amended to read:

AB458,7,5 23.33 (13) (b) 3. A person who violates sub. (4c) (a) 1. or, 2., or 2m. or (4p) (e) and who, within 5 years prior to the arrest for the current violation, was convicted 2 or more times previously under the intoxicated operation of an all-terrain vehicle law or refusal law shall be fined not less than $600 nor more than $2,000 and shall be imprisoned not less than 30 days nor more than one year in the county jail.

AB458, s. 13 Section 13. 30.50 (10m) of the statutes is created to read:

AB458,7,7 30.50 (10m) "Restricted controlled substance" means any of the following:

AB458,7,9 (a) A controlled substance included in schedule I under ch. 961 other than a tetrahydrocannabinol.

AB458,7,11 (b) A controlled substance analog, as defined in s. 961.01 (4m), of a controlled substance described in par. (a).

AB458,7,12 (c) Cocaine or any of its metabolites.

AB458,7,13 (d) Methamphetamine.

AB458,7,14 (e) Delta-9-tetrahydrocannabinol.

AB458, s. 14 Section 14. 30.681 (1) (b) (title) of the statutes is amended to read:

AB458,7,17 30.681 (1) (b) (title) Operating with after using a controlled substance or alcohol concentrations at or above specified levels.

AB458, s. 15 Section 15. 30.681 (1) (b) 1m. of the statutes is created to read:

AB458,7,21 30.681 (1) (b) 1m. No person may engage in the operation of a motorboat while the person has a detectable amount of a restricted controlled substance in his or her blood.

AB458, s. 16 Section 16. 30.681 (1) (c) of the statutes is amended to read:

AB458,8,7 30.681 (1) (c) Related charges. A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of par. (a) or (b) or both any combination of par. (a) or (b) 1., 1m., or 2. for acts arising out of the same incident or occurrence. If the person is charged with violating both pars. (a) and (b) any combination of par. (a) or (b) 1., 1m., or 2., the offenses shall be joined. If the person is found guilty of both pars. (a) and (b) any combination of par. (a) or (b) 1., 1m., or 2. for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under s. 30.80 (6) (a) 2. and 3. Paragraphs (a) and (b) 1., 1m., and 2. each require proof of a fact for conviction which the other does others do not require.

AB458, s. 17 Section 17. 30.681 (1) (d) of the statutes is created to read:

AB458,8,14 30.681 (1) (d) Defenses. In an action under par. (b) 1m. that is based on the defendant allegedly having a detectable amount of methamphetamine or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors or delta-9-tetrahydrocannabinol.

AB458, s. 18 Section 18. 30.681 (2) (b) (title) of the statutes is amended to read:

AB458,8,17 30.681 (2) (b) (title) Causing injury with after using a controlled substance or alcohol concentrations at or above specified levels.

AB458, s. 19 Section 19. 30.681 (2) (b) 1m. of the statutes is created to read:

AB458,8,21 30.681 (2) (b) 1m. No person who has a detectable amount of a restricted controlled substance in his or her blood may cause injury to another person by the operation of a motorboat.

AB458, s. 20 Section 20. 30.681 (2) (c) of the statutes is amended to read:

AB458,9,8 30.681 (2) (c) Related charges. A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of par. (a) or (b) or both any combination of par. (a) or (b) 1., 1m., or 2. for acts arising out of the same incident or occurrence. If the person is charged with violating both pars. (a) and (b) any combination of par. (a) or (b) 1., 1m., or 2. in the complaint, the crimes shall be joined under s. 971.12. If the person is found guilty of both pars. (a) and (b) any combination of par. (a) or (b) 1., 1m., or 2. for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under s. 30.80 (6) (a) 2. and 3. Paragraphs (a) and (b) 1., 1m., and 2. each require proof of a fact for conviction which the other does others do not require.

AB458, s. 21 Section 21. 30.681 (2) (d) 1. of the statutes is renumbered 30.681 (2) (d) 1. a. and amended to read:

AB458,9,17 30.681 (2) (d) 1. a. 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 or more or a detectable amount of a restricted controlled substance in his or her blood.

AB458, s. 22 Section 22. 30.681 (2) (d) 1. b. of the statutes is created to read:

AB458,9,24 30.681 (2) (d) 1. b. In an action under par. (b) 1m. that is based on the defendant allegedly having a detectable amount of methamphetamine or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors or delta-9-tetrahydrocannabinol.

AB458, s. 23 Section 23. 30.684 (4) of the statutes is amended to read:

AB458,10,9 30.684 (4) Admissibility; effect of test results; other evidence. The results of a chemical test required or administered under sub. (1), (2) or (3) are admissible in any civil or criminal action or proceeding arising out of the acts committed by a person alleged to have violated the intoxicated boating law on the issue of whether the person was under the influence of an intoxicant or the issue of whether the person had alcohol concentrations at or above specified levels or a detectable amount of a restricted controlled substance in his or her blood. Results of these chemical tests shall be given the effect required under s. 885.235. This section does not limit the right of a law enforcement officer to obtain evidence by any other lawful means.

AB458, s. 24 Section 24. 340.01 (50m) of the statutes is created to read:

AB458,10,11 340.01 (50m) "Restricted controlled substance" means any of the following:

AB458,10,13 (a) A controlled substance included in schedule I under ch. 961 other than a tetrahydrocannabinol.

AB458,10,15 (b) A controlled substance analog, as defined in s. 961.01 (4m), of a controlled substance described in par. (a).

AB458,10,16 (c) Cocaine or any of its metabolites.

AB458,10,17 (d) Methamphetamine.

AB458,10,18 (e) Delta-9-tetrahydrocannabinol.

AB458, s. 25 Section 25. 343.305 (5) (e) of the statutes is created to read:

AB458,11,2 343.305 (5) (e) At the trial of any civil or criminal action or proceeding arising out of the acts committed by a person alleged to have been driving or operating a motor vehicle while having a detectable amount of a restricted controlled substance in his or her blood, the results of a blood test administered in accordance with this section are admissible on any issue relating to the presence of a detectable amount of a restricted controlled substance in the person's blood. Test results shall be given the effect required under s. 885.235.

AB458, s. 26 Section 26. 343.305 (7) (a) of the statutes is amended to read:

AB458,11,10 343.305 (7) (a) If a person submits to chemical testing administered in accordance with this section and any test results indicate the presence of a detectable amount of a restricted controlled substance in the person's blood or a prohibited alcohol concentration, the law enforcement officer shall report the results to the department and take possession of the person's license and forward it to the department. The person's operating privilege is administratively suspended for 6 months.

AB458, s. 27 Section 27. 343.305 (8) (b) 2. bm. and d. of the statutes are amended to read:

AB458,11,14 343.305 (8) (b) 2. bm. Whether the person had a prohibited alcohol concentration or a detectable amount of a restricted controlled substance in his or her blood at the time the offense allegedly occurred.

AB458,11,18 d. If one or more tests were administered in accordance with this section, whether each of the test results for those tests indicate the person had a prohibited alcohol concentration or a detectable amount of a restricted controlled substance in his or her blood.

AB458, s. 28 Section 28. 343.305 (8) (b) 2. g. of the statutes is created to read:

AB458,11,22 343.305 (8) (b) 2. g. Whether the person had a valid prescription for methamphetamine or one of its metabolic precursors in a case in which subd. 4m. a. and b. apply.

AB458, s. 29 Section 29. 343.305 (8) (b) 4m. of the statutes is created to read:

AB458,12,2 343.305 (8) (b) 4m. If, at the time the offense allegedly occurred, all of the following apply, the hearing officer shall determine whether the person had a valid prescription for methamphetamine or one of its metabolic precursors or delta-9-tetrahydrocannabinol:

AB458,12,6 a. A blood test administered in accordance with this section indicated that the person had a detectable amount of methamphetamine or delta-9-tetrahydrocannabinol but did not have a detectable amount of any other restricted controlled substance in his or her blood.

AB458,12,8 b. No test administered in accordance with this section indicated that the person had a prohibited alcohol concentration.

AB458, s. 30 Section 30. 343.305 (8) (b) 5. of the statutes is renumbered 343.305 (8) (b) 5. (intro.) and amended to read:

AB458,12,16 343.305 (8) (b) 5. (intro.) If the hearing examiner finds that the criteria for administrative suspension have not been satisfied or that the person did not have a prohibited alcohol concentration at the time the offense allegedly occurred any of the following applies, the examiner shall order that the administrative suspension of the person's operating privilege be rescinded without payment of the fee under s. 343.21 (1) (j).:

AB458,12,21 6. If the hearing examiner finds that the criteria for administrative suspension have been satisfied and that the person had a prohibited alcohol concentration at the time the offense allegedly occurred all of the following apply, the administrative suspension shall continue regardless of the type of vehicle driven or operated at the time of the violation.:

AB458,13,2 7. The hearing examiner shall notify the person in writing of the hearing decision, of the right to judicial review and of the court's authority to issue a stay of the suspension under par. (c). The administrative suspension is vacated and the person's operating privilege shall be automatically reinstated under s. 343.39 if the hearing examiner fails to mail this notice to the person within 30 days after the date of the notification under par. (a).

AB458, s. 31 Section 31. 343.305 (8) (b) 5. a. of the statutes is created to read: