AB547: Bill Text

LRB-3640/1

PJH:cjs/nwn/jld/wlj:jf

2009 - 2010 LEGISLATURE

2009 Assembly BILL 547

November 5, 2009 - Introduced by Representatives Krusick, J. Ott and Bies, cosponsored by Senators Darling, Olsen and Carpenter, by request of Paul and Judy Jenkins of Mequon (in memory of Jennifer Bukosky, Courtney Bella and Sophie Bukosky), Wendy Calvillo of Fort Atkinson (in memory of Alan and Bailey Calvillo), Steve Meinel of Weston (in memory of Lacey Meinel), Scott and Missy Heroux of Green Bay (in memory of Talhia Heroux), Jennifer M. Loppnow of Watertown (in memory of Randall James Engel), Elizabeth Klumb of Addison (in memory of Parker Klumb), Bruce and Nan Browne of Sheboygan, Bryan and Julie Gagnon of Shawano, Debbie Wermeling of Fort Atkinson, David Meredith of Oconto Falls, Milwaukee County Sheriff David A. Clarke Jr., Neenah Police Chief Kevin E. Wilkinson, Jamie Schumacher, Ramona Erickson of Greenfield (in memory of Clint Erickson), Dennis, Geraldine, Julie, Carl and Rebecca Bartoli of Campbellsport (in memory of Michael Bartoli) and Mothers Against Drunk Driving (MADD). Referred to Committee on Criminal Justice.

AB547,1,11 An Act to repeal 346.65 (2g) (d); to amend 165.755 (1) (b), 302.372 (2) (a) (intro.), 302.46 (1) (a), 340.01 (46m) (a), 343.23 (2) (b), 343.30 (1q) (c) 1. (intro.), 345.20 (2) (c), 346.65 (2) (am) 1., 346.65 (2) (f), 346.65 (2c), 346.65 (2e), 346.65 (2g) (a), 346.65 (2g) (ag), 346.65 (2g) (am), 346.65 (2i), 346.655 (1), 349.02 (2) (a), 753.19, 757.05 (1) (a), 814.63 (1) (c), 814.63 (2), 814.65 (1), 814.85 (1) (a), 814.86 (1), 969.01 (2) (a), 972.11 (3m), 973.09 (1) (d) 1. and 973.15 (8) (a) 3.; to repeal and recreate 343.23 (2) (b), 814.65 (1), 814.85 (1) (a) and 814.86 (1); and to create 16.185, 20.435 (5) (q), 20.475 (1) (q), 20.505 (6) (q), 20.550 (1) (q), 20.625 (1) (q), 25.975, 46.03 (44), 139.27, 165.85 (4r), 340.01 (46m) (am), 346.65 (2) (h), 977.02 (2g) and 978.05 (1p) of the statutes; relating to: operating a vehicle while intoxicated, granting rule-making authority, and providing a penalty.

Analysis by the Legislative Reference Bureau

This bill makes a number of changes relating to operating a vehicle while under the influence of an intoxicant (OWI-related offense), including the following:

1. Under current law, a first OWI-related offense is a civil violation. A person who commits a first OWI-related offense is subject to a forfeiture of not less than $150 nor more than $300. Subsequent OWI-related offenses are crimes punishable by fines and periods of imprisonment that increase with every subsequent offense.

Under this bill, a person who commits a first OWI-related offense on or after July 1, 2011 is guilty of a Class C misdemeanor and may be fined not more than $500, imprisoned for not more than 30 days, or both.

Under the bill, if a person is subject to a minimum period of imprisonment for any OWI-related offense, the person is not eligible for home detention, good time, release from jail for employment, transfer to a county work camp, release to perform community service except under special circumstances, probation, or diminution of the sentence until he or she serves at least the minimum period of time in jail or prison.

2. Under current law, with few exceptions, a law enforcement officer may not stop a motor vehicle without reasonable cause to believe that the operator of the motor vehicle has violated a law or ordinance.

This bill requires the law enforcement standards board (LESB) to establish rules for a sobriety checkpoint program and requires local law enforcement agencies to comply with the rules whenever they conduct a sobriety checkpoint. When a law enforcement agency conducts a sobriety checkpoint, drivers are briefly stopped without individualized suspicion that they may be intoxicated, and drivers who demonstrate some level of impairment or other signs of drug or alcohol use are detained for additional testing and possible arrest.

The bill requires the LESB rules to ensure that drivers are stopped in a neutral, nondiscretionary manner and that the initial stops are conducted in a way that minimizes the disruption of traffic flow and minimizes the amount of time the driver is stopped. The rules must also ensure that the sobriety checkpoint has fixed beginning and ending times, and is publicized before it is conducted. The rules must ensure that, at the sobriety checkpoint, approaching drivers are given adequate warning that a sobriety checkpoint is underway, and that officers clearly identify themselves and explain the purpose of the sobriety checkpoint to each driver they stop. Finally, the rules must establish criteria for determining which drivers may be detained beyond the initial stop to undergo testing for intoxication.

3. Under current law, counties may seek reimbursement from persons who are sentenced to a county jail or placed on probation and confined in jail, for the costs the counties incur in relation to the crime for which the persons are sentenced to jail or placed on probation. The counties may also seek reimbursement from other sources, but they cannot collect for the same costs twice.

The bill requires counties to seek reimbursement from persons sentenced to a county jail or placed on probation and confined in jail.

4. Currently, revenues generated from the wine and liquor tax are deposited into the general fund.

Under this bill, beginning on July 1, 2011, $10,000,000 from revenues generated by the wine and liquor tax are deposited into the intoxicated and drugged driver fund. The bill requires the Department of Administration, the Public Defender Board, the Department of Health Services, and the director of state courts to prepare budget requests that would allocate funds from the intoxicated and drugged driver trust fund to pay costs incurred by district attorneys, public defenders, circuit courts, and counties in relation to prosecuting first OWI-related offenses and providing treatment programs for offenders.

5. Under current law, no person may operate a motor vehicle with a prohibited alcohol concentration. For most operators, the prohibited alcohol concentration is 0.08 or more. However, if a person has committed three or more OWI-related violations, the prohibited alcohol concentration for that person is more than 0.02.

This bill adds a definition of a prohibited alcohol concentration as an alcohol concentration of more than 0.02 for the two-year period after a person has committed a first or second OWI-related offense.

6. Under current law, a trial court may, at its discretion, release a person who has been convicted of a crime from imprisonment until the time of sentencing. Current law also allows a sentencing court to delay the execution of a sentence of imprisonment for up to 60 days, unless the court finds that there is legal cause to delay the execution of the sentence for a longer period or unless the court places the person on probation.

Under this bill, if a person has been convicted of an OWI-related offense, and the conviction carries a minimum period of imprisonment, a court may not release the person after conviction but before sentencing until after the person has served at least the minimum period of imprisonment. Under the bill, a court may not delay the execution of a sentence of imprisonment unless the court finds that there is legal cause to delay the execution of the sentence or unless the court places the person on probation.

7. Under current law, a person who is subject to a forfeiture or a fine for violating most state laws or local ordinances is also liable for a variety of penalty surcharges and court fees. In addition, a person who commits an OWI-related offense is liable for a penalty surcharge for driver improvement programs and is required to comply with an alcohol and other drug assessment before he or she is eligible for reinstatement of his or her driving privileges.

Currently, a person who commits his or her first OWI-related offense and who has a blood alcohol concentration between 0.08 and 0.099 at the time of the offense is not liable for the surcharges or fees and does not need to comply with an alcohol or other drug assessment program. Further, the Department of Transportation (DOT) must purge its records of a first offense related to driving while intoxicated after ten years; the department keeps all other records of offenses related to driving while intoxicated permanently.

Under this bill, a person who commits his or her first OWI-related offense and who has a blood alcohol concentration between 0.08 and 0.099 at the time of the violation is liable for the surcharges or fees and must comply with an alcohol or other drug assessment program before his or her driving privileges may be reinstated. Under this bill, DOT must keep a record of this offense permanently.

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.

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:

AB547, s. 1 Section 1. 16.185 of the statutes is created to read:

AB547,4,5 16.185 Assistance to counties; operating while intoxicated. From the appropriation under s. 20.505 (6) (q), the department may make payments to counties for costs incurred relating to persons charged with offenses that are punishable under s. 346.65 (2) (am) 1.

AB547, s. 2 Section 2. 20.435 (5) (q) of the statutes is created to read:

AB547,4,9 20.435 (5) (q) Intoxicated and drugged driving assistance programs. From the intoxicated and drugged drivers fund, the amounts in the schedule for intoxicated and drugged driving programs administered under s. 46.03 (44).

AB547, s. 3 Section 3. 20.475 (1) (q) of the statutes is created to read:

AB547,4,13 20.475 (1) (q) Prosecutions related to operating while intoxicated. From the intoxicated and drugged drivers fund, the amounts in the schedule for prosecutions under s. 978.05 (1p).

AB547, s. 4 Section 4. 20.505 (6) (q) of the statutes is created to read:

AB547,4,17 20.505 (6) (q) Assistance to counties related to operating while intoxicated. From the intoxicated and drugged drivers fund, the amounts in the schedule to reimburse counties under s. 16.185.

AB547, s. 5 Section 5. 20.550 (1) (q) of the statutes is created to read:

AB547,5,3 20.550 (1) (q) Representation related to operating while intoxicated. From the intoxicated and drugged drivers fund, the amounts in the schedule for representation under s. 977.02 (2g).

AB547, s. 6 Section 6. 20.625 (1) (q) of the statutes is created to read:

AB547,5,7 20.625 (1) (q) Operation costs related to operating while intoxicated. From the intoxicated and drugged drivers fund, the amounts in the schedule for circuit court costs under s. 753.19.

AB547, s. 7 Section 7. 25.975 of the statutes is created to read:

AB547,5,11 25.975 Intoxicated and drugged drivers fund. There is established a separate nonlapsible trust fund designated as the intoxicated and drugged drivers fund, to consist of all moneys received under s. 139.27.

AB547, s. 8 Section 8. 46.03 (44) of the statutes is created to read:

AB547,5,15 46.03 (44) Intoxicated and drugged driving. From the appropriation under s. 20.435 (5) (q), provide services to persons charged with offenses that are punishable under s. 346.65 (2) (am) 1.

AB547, s. 9 Section 9. 139.27 of the statutes is created to read:

AB547,5,19 139.27 Revenue distribution. The first $10,000,000 collected in each fiscal year from the taxes imposed under s. 139.03 shall be deposited into the fund created under s. 25.975.

AB547, s. 10 Section 10. 165.755 (1) (b) of the statutes is amended to read:

AB547,6,3 165.755 (1) (b) A court may not impose the crime laboratories and drug law enforcement surcharge under par. (a) for a violation of s. 101.123 (2) (a), (am) 1., (ar), (bm), (br), or (bv) or (5) (b), for a first violation of s. 23.33 (4c) (a) 2., 30.681 (1) (b) 1., 346.63 (1) (b), or 350.101 (1) (b), if the person who committed the violation had a blood alcohol concentration of 0.08 or more but less than 0.1 at the time of the violation, or for a violation of a state law or municipal or county ordinance involving a nonmoving traffic violation, a violation under s. 343.51 (1m) (b), or a safety belt use violation under s. 347.48 (2m).

AB547, s. 11 Section 11. 165.85 (4r) of the statutes is created to read: