AB547: Bill Text

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:

AB547,6,8 165.85 (4r) Sobriety checkpoints. (a) The board shall promulgate rules for administering a sobriety checkpoint program that are consistent with par. (b). No local authority may conduct a sobriety checkpoint program that does not comply with the rules established under this subsection.

AB547,6,9 (b) A sobriety checkpoint program shall:

AB547,6,11 1. Establish a nondiscretionary system for determining which motor vehicles are stopped at the checkpoint.

AB547,6,12 2. Minimize the length of time a motor vehicle is stopped.

AB547,6,15 3. Give public notice that a sobriety checkpoint program will be in effect no more than 5 days before the law enforcement agency conducts the sobriety checkpoint.

AB547,6,17 4. Give adequate warning to motor vehicle operators approaching the sobriety checkpoint that a sobriety checkpoint is being conducted.

AB547,6,19 5. Minimize the disruption of regular traffic flow while the sobriety checkpoint is being conducted.

AB547,6,21 6. Establish criteria for a motor vehicle operator to be detained beyond the initial stop at the sobriety checkpoint for a test under s. 343.305.

AB547,6,22 7. Establish a fixed period of time for each sobriety checkpoint to be conducted.

AB547,6,24 8. Require law enforcement officers to do all of the following at a sobriety checkpoint:

AB547,7,2 a. Wear an official uniform that clearly identifies him or her as a law enforcement officer.

AB547,7,4 b. Identify himself or herself as a law enforcement officer to each motor vehicle operator that is stopped at the sobriety checkpoint.

AB547,7,6 c. Explain the purpose of the sobriety checkpoint to each motor vehicle operator that is stopped at the sobriety checkpoint.

AB547, s. 12 Section 12. 302.372 (2) (a) (intro.) of the statutes is amended to read:

AB547,7,11 302.372 (2) (a) (intro.) Except as provided in pars. (c) and (d), a county may shall seek reimbursement for any expenses incurred by the county in relation to the crime for which a person was sentenced to a county jail, or for which the person was placed on probation and confined in jail, as follows:

AB547, s. 13 Section 13. 302.46 (1) (a) of the statutes is amended to read:

AB547,7,25 302.46 (1) (a) If a court imposes a fine or forfeiture for a violation of state law or for a violation of a municipal or county ordinance except for a violation of s. 101.123 (2) (a), (am) 1., (ar), (bm), (br), or (bv) or (5), or 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 state laws or municipal or county ordinances involving nonmoving traffic violations, violations under s. 343.51 (1m) (b), or safety belt use violations under s. 347.48 (2m), the court, in addition, shall impose a jail surcharge under ch. 814 in an amount of 1 percent of the fine or forfeiture imposed or $10, whichever is greater. If multiple offenses are involved, the court shall determine the jail surcharge on the basis of each fine or forfeiture. If a fine or forfeiture is suspended in whole or in part, the court shall reduce the jail surcharge in proportion to the suspension.

AB547, s. 14 Section 14. 340.01 (46m) (a) of the statutes is amended to read:

AB547,8,4 340.01 (46m) (a) If the person has 2 or fewer no prior convictions, suspensions, or revocations violation, conviction, suspension, or revocation, as counted under s. 343.307 (1), an alcohol concentration of 0.08 or more.

AB547, s. 15 Section 15. 340.01 (46m) (am) of the statutes is created to read:

AB547,8,8 340.01 (46m) (am) If the person has one or 2 prior violations, convictions, suspensions, or revocations, as counted under s. 343.307 (1), within 2 years of the current offense, an alcohol concentration of more than 0.02.

AB547, s. 16 Section 16. 343.23 (2) (b) of the statutes, as affected by 2009 Wisconsin Act 28, section 2923, is amended to read:

AB547,9,10 343.23 (2) (b) The information specified in pars. (a) and (am) must be filed by the department so that the complete operator's record is available for the use of the secretary in determining whether operating privileges of such person shall be suspended, revoked, canceled, or withheld, or the person disqualified, in the interest of public safety. The record of suspensions, revocations, and convictions that would be counted under s. 343.307 (2) shall be maintained permanently, except that the department shall purge the record of a first violation of s. 23.33 (4c) (a) 2., 30.681 (1) (b) 1., 346.63 (1) (b), or 350.101 (1) (b) after 10 years, 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, if the person does not have a commercial driver license, if the violation was not committed by a person operating a commercial motor vehicle, and if the person has no other suspension, revocation, or conviction that would be counted under s. 343.307 during that 10-year period. The record of convictions for disqualifying offenses under s. 343.315 (2) (h) shall be maintained for at least 10 years. The record of convictions for disqualifying offenses under s. 343.315 (2) (f), (j), and (L) and all records specified in par. (am), shall be maintained for at least 3 years. The record of convictions for disqualifying offenses under s. 343.315 (2) (a) to (e) shall be maintained permanently, except that 5 years after a licensee transfers residency to another state such record may be transferred to another state of licensure of the licensee if that state accepts responsibility for maintaining a permanent record of convictions for disqualifying offenses. Such reports and records may be cumulative beyond the period for which a license is granted, but the secretary, in exercising the power of suspension granted under s. 343.32 (2) may consider only those reports and records entered during the 4-year period immediately preceding the exercise of such power of suspension.

AB547, s. 17 Section 17. 343.23 (2) (b) of the statutes, as affected by 2009 Wisconsin Acts 28, section 2924, and .... (this act), is repealed and recreated to read:

AB547,9,25 343.23 (2) (b) The information specified in pars. (a) and (am) must be filed by the department so that the complete operator's record is available for the use of the secretary in determining whether operating privileges of such person shall be suspended, revoked, canceled, or withheld, or the person disqualified, in the interest of public safety. The record of suspensions, revocations, and convictions that would be counted under s. 343.307 (2) shall be maintained permanently. The record of convictions for disqualifying offenses under s. 343.315 (2) (h) shall be maintained for at least 10 years. The record of convictions for disqualifying offenses under s. 343.315 (2) (f), (j), and (L), and all records specified in par. (am), shall be maintained for at least 3 years. The record of convictions for disqualifying offenses under s. 343.315 (2) (a) to (e) shall be maintained permanently, except that 5 years after a licensee transfers residency to another state such record may be transferred to another state of licensure of the licensee if that state accepts responsibility for maintaining a permanent record of convictions for disqualifying offenses. Such reports and records may be cumulative beyond the period for which a license is granted, but the secretary, in exercising the power of suspension granted under s. 343.32 (2) may consider only those reports and records entered during the 4-year period immediately preceding the exercise of such power of suspension. The department shall maintain the digital images of documents specified in s. 343.165 (2) (a) for at least 10 years.

AB547, s. 18 Section 18. 343.30 (1q) (c) 1. (intro.) of the statutes is amended to read:

AB547,10,19 343.30 (1q) (c) 1. (intro.) Except as provided in subd. 1. a. or b., and except for a first violation of s. 346.63 (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, 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 and development of a driver safety plan for the person. The court shall notify the department of transportation of the assessment order. The court shall notify the person that noncompliance with assessment or the driver safety plan will result in revocation of the person's operating privilege until the person is in compliance. The assessment order shall:

AB547, s. 19 Section 19. 345.20 (2) (c) of the statutes is amended to read:

AB547,10,23 345.20 (2) (c) Sections 967.055 and 972.11 (3m) apply to traffic forfeiture actions for violations of s. 346.63 (1) or (5) or a local ordinance in conformity therewith.

AB547, s. 20 Section 20. 346.65 (2) (am) 1. of the statutes is amended to read:

AB547,11,2 346.65 (2) (am) 1. Shall forfeit not less than $150 nor more than $300, except Except as provided in subds. 2. to 5. 7. and par. (f), is guilty of a Class C misdemeanor.

AB547, s. 21 Section 21. 346.65 (2) (f) of the statutes is amended to read:

AB547,11,10 346.65 (2) (f) If there was a minor passenger under 16 years of age in the motor vehicle at the time of the violation that gave rise to the conviction under s. 346.63 (1), the applicable minimum and maximum forfeitures, fines , or imprisonment under par. (am) for the conviction are doubled. An offense under s. 346.63 (1) that subjects a person to a penalty under par. (am) 3., 4., 5., 6., or 7. when there is a minor passenger under 16 years of age in the motor vehicle is a felony and the place of imprisonment shall be determined under s. 973.02.

AB547, s. 22 Section 22. 346.65 (2) (h) of the statutes is created to read:

AB547,11,18 346.65 (2) (h) Notwithstanding s. 973.03 (4) (a), a person sentenced under this subsection is not eligible for home detention under s. 302.425, good time under s. 302.43, release from jail for employment under s. 303.08 (1) (b), transfer to a county work camp under s. 303.10, release to perform community service unless s. 973.07 applies, probation under s. 973.09, or diminution of the sentence under s. 303.19 (3) until the person has been confined in a prison or jail for the minimum term of imprisonment for the offense.

AB547, s. 23 Section 23. 346.65 (2c) of the statutes is amended to read:

AB547,11,25 346.65 (2c) In sub. (2) (am) 2., 3., 4., 5., 6., and 7., the time period shall be measured from the dates of the refusals or violations that resulted in the revocation or convictions. If a person has a suspension, revocation, or conviction for any offense under a local ordinance or a state statute of another state that would be counted under s. 343.307 (1), that suspension, revocation, or conviction shall count as a prior suspension, revocation, or conviction under sub. (2) (am) 2., 3., 4., 5., 6., and 7.

AB547, s. 24 Section 24. 346.65 (2e) of the statutes is amended to read:

AB547,12,7 346.65 (2e) If the court determines that a person does not have the ability to pay the costs and fine or forfeiture imposed under sub. (2) (am), (f), or (g), the court may reduce the costs, or fine, and forfeiture imposed and order the person to pay, toward the cost of the assessment and driver safety plan imposed under s. 343.30 (1q) (c), the difference between the amount of the reduced costs and fine or forfeiture and the amount of costs and fine or forfeiture imposed under sub. (2) (am), (f), or (g).

AB547, s. 25 Section 25. 346.65 (2g) (a) of the statutes is amended to read:

AB547,12,17 346.65 (2g) (a) In addition to the authority of the court under s. 973.05 (3) (a) to provide that a defendant perform community service work for a public agency or a nonprofit charitable organization in lieu of part or all of a fine imposed under sub. (2) (am) 2., 3., 4., and 5., (f), and (g) and except as provided in par. (ag), the court may provide that a defendant perform community service work for a public agency or a nonprofit charitable organization in lieu of part or all of a forfeiture under sub. (2) (am) 1. or may require a person who is subject to sub. (2) to perform community service work for a public agency or a nonprofit charitable organization in addition to the penalties specified under sub. (2).

AB547, s. 26 Section 26. 346.65 (2g) (ag) of the statutes is amended to read:

AB547,13,2 346.65 (2g) (ag) If the court determines that a person does not have the ability to pay a fine imposed under sub. (2) (am) 1., 2., 3., 4., or 5., (f), or (g), the court shall require the defendant to perform community service work for a public agency or a nonprofit charitable organization in lieu of paying the fine imposed or, if the amount of the fine was reduced under sub. (2e), in lieu of paying the remaining amount of the fine. Each hour of community service performed in compliance with an order under this paragraph shall reduce the amount of the fine owed by an amount determined by the court.

AB547, s. 27 Section 27. 346.65 (2g) (am) of the statutes is amended to read:

AB547,13,13 346.65 (2g) (am) Notwithstanding s. 973.05 (3) (b), an order under par. (a) or (ag) may apply only if agreed to by the organization or agency. The court shall ensure that the defendant is provided a written statement of the terms of the community service order and that the community service order is monitored. 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 a community service order under this subsection does not entitle an indigent defendant who is subject to sub. (2) (am) 1. to representation by counsel under ch. 977.

AB547, s. 28 Section 28. 346.65 (2g) (d) of the statutes is repealed.