SB66: Bill Text

LRB-1443/1

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2009 - 2010 LEGISLATURE

2009 Senate BILL 66

February 18, 2009 - Introduced by Senators Sullivan, Plale, Lehman, Decker, Hansen, Vinehout, Harsdorf, Risser, Carpenter, A. Lasee, Darling, Erpenbach and Cowles, cosponsored by Representatives Zepnick, Lothian, A. Ott, Bies and Honadel. Referred to Committee on Judiciary, Corrections, Insurance, Campaign Finance Reform, and Housing.

SB66,1,9 An Act to repeal 346.65 (8); to renumber 343.301 (1) (c); to amend 165.755 (1) (b), 302.46 (1) (a), 343.23 (2) (b), 343.30 (1q) (c) 1. (intro.), 343.301 (1) (a) 1., 343.301 (1) (a) 2., 346.65 (2) (am) 3., 346.65 (2) (am) 4., 346.65 (2) (bm), 346.65 (2) (cm), 346.65 (2j) (bm), 346.65 (2j) (cm), 346.65 (2m) (a), 346.65 (3r), 346.655 (1), 757.05 (1) (a), 814.63 (1) (c), 814.63 (2), 814.65 (1), 814.85 (1) (a) and 814.86 (1); and to create 343.301 (1) (a) 3., 343.301 (1) (c) 2., 343.301 (1) (cm), 346.65 (2) (am) 3m., 758.13 (2) (h) and 758.13 (2) (i) of the statutes; relating to: operation of a motor vehicle while under the influence of an intoxicant and providing a penalty.

Analysis by the Legislative Reference Bureau

This bill makes numerous changes to the laws related to the operation of a motor vehicle while under the influence of an intoxicant (OWI), including the following:

1. Current law gives a court discretion to require the installation of an ignition interlock device on a person's motor vehicle if the person committed an OWI offense and has one or more prior convictions, suspensions, or revocations for OWI. Under current law, if the person has two convictions, suspensions, or revocations for OWI within any five-year period, the court is required to order the installation of an ignition interlock device on a person's motor vehicle. This bill requires the court to order the installation of a ignition interlock device on a person's motor vehicle if the person has a third conviction, suspension, or revocation for OWI within any period; or if the person has a second conviction, suspension, or revocation for OWI within any period and had an alcohol concentration of 0.16 or greater at the time of the current offense.

2. The bill requires the court, if it orders the installation of an ignition interlock device, to determine the income of the violator, and if the violator's income is less than the income limit for the Wisconsin Works program to reduce the amount of the fine imposed by the amount necessary to pay for the installation and maintenance of the ignition interlock device.

3. The bill prohibits the company that equips a motor vehicle with an ignition interlock device from removing the device or terminating the contract for the maintenance of the device during the period that the court ordered without first receiving the court's permission.

4. The bill increases the penalties for OWI as follows:

a. The penalty for a third OWI offense is currently a fine of $600 to $2,000 and imprisonment of 30 days to one year in jail. Under the bill if the person has a third OWI-related conviction, suspension, or revocation within a five-year period, the current offense is a Class I felony and creates a minimum fine of $600 and a minimum imprisonment of 60 days.

b. The penalty for a fourth OWI offense is currently a fine of $600 to $2,000 and imprisonment of 60 days to one year in jail. The bill makes the fourth OWI offense a Class I felony and creates a minimum fine of $600 and a minimum imprisonment of 60 days.

5. 2005 Wisconsin Act 389 created a pilot program for sentencing persons in Winnebago County who are convicted of certain second or third offenses involving OWI. Under that act, the period of imprisonment for an OWI offense in Winnebago County may be reduced if the violator successfully completes a period of probation that includes alcohol and other drug treatment. A person may complete a treatment program and receive a reduced period of imprisonment only once. This bill expands the sentencing option to any county that opts to allow a violator to successfully complete a period of probation that includes alcohol and other drug treatment in exchange for a shorter period of imprisonment.

6. Currently, a person who commits his or her first OWI offense and who has a prohibited alcohol concentration between 0.08 and 0.99 at the time of the offense is not liable for penalty surcharges or court 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 OWI offense after ten years; DOT keeps all other records of OWI offenses permanently.

Under this bill, a person who commits his or her first OWI offense and who has a prohibited alcohol concentration between 0.08 and 0.99 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.

The bill requires the Judicial Council to establish advisory sentencing guidelines for OWI offenses and make those guidelines and any revisions available to judges and attorneys at least annually.

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:

SB66, s. 1 Section 1. 165.755 (1) (b) of the statutes is amended to read:

SB66,3,9 165.755 (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).

SB66, s. 2 Section 2. 302.46 (1) (a) of the statutes is amended to read:

SB66,4,7 302.46 (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.

SB66, s. 3 Section 3. 343.23 (2) (b) of the statutes is amended to read:

SB66,5,8 343.23 (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) and (j), 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.

SB66, s. 4 Section 4. 343.30 (1q) (c) 1. (intro.) of the statutes is amended to read:

SB66,5,20 343.30 (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:

SB66, s. 5 Section 5. 343.301 (1) (a) 1. of the statutes is amended to read:

SB66,6,4 343.301 (1) (a) 1. Except as provided in subd. 2. and 3., if a person improperly refuses to take a test under s. 343.305 or violates s. 346.63 (1) or (2), 940.09 (1), or 940.25, and the person has a total of one or more prior convictions, suspensions, or revocations, counting convictions under ss. 940.09 (1) and 940.25 in the person's lifetime and other convictions, suspensions, and revocations counted under s. 343.307 (1), the court may order that the person's operating privilege for the operation of "Class D" vehicles be restricted to operating "Class D" vehicles that are equipped with an ignition interlock device.

SB66, s. 6 Section 6. 343.301 (1) (a) 2. of the statutes is amended to read:

SB66,6,21 343.301 (1) (a) 2. If Except as provided in subd. 3., if a person improperly refuses to take a test under s. 343.305 or violates s. 346.63 (1) or (2), 940.09 (1), or 940.25, and the person has a total of 2 or more convictions, suspensions, or revocations, counted under s. 343.307 (1) within any 5-year period, the court shall order that the person's operating privilege for the operation of "Class D" vehicles be restricted to operating vehicles that are equipped with an ignition interlock device and shall order that each motor vehicle for which the person's name appears on the vehicle's certificate of title or registration be equipped with an ignition interlock device. If equipping each motor vehicle with an ignition interlock device under this subdivision would cause an undue financial hardship, the court may order that one or more motor vehicles subject to this subdivision not be equipped with an ignition interlock device. This subdivision does not apply if the court enters an order under sub. (2) (a) 2. or, if the person has 2 or more prior convictions, suspensions, or revocations for purposes of this subdivision, to the motor vehicle owned by the person and used in the violation or refusal if the court orders the vehicle to be seized and forfeited under s. 346.65 (6).

SB66, s. 7 Section 7. 343.301 (1) (a) 3. of the statutes is created to read:

SB66,7,14 343.301 (1) (a) 3. If a person improperly refuses to take a test under s. 343.305 or violates s. 346.63 (1) or (2), 940.09 (1), or 940.25, and the person has a total of 2 or more prior convictions, suspensions, or revocations, counted under s. 343.307 (1), or the person has a prior conviction, suspension, or revocation counted under s. 343.307 (1) and has an alcohol concentration of 0.16 or more at the time of the current offense, the court shall order that the person's operating privilege for the operation of "Class D" vehicles be restricted to operating vehicles that are equipped with an ignition interlock device and shall order that each motor vehicle for which the person's name appears on the vehicle's certificate of title or registration be equipped with an ignition interlock device. If equipping each motor vehicle with an ignition interlock device under this subdivision would cause an undue financial hardship, the court may order that one or more motor vehicles subject to this subdivision not be equipped with an ignition interlock device. This subdivision does not apply if the court enters an order under sub. (2) (a) 2. or, if the person has 2 or more prior convictions, suspensions, or revocations for purposes of this subdivision, to the motor vehicle owned by the person and used in the violation or refusal if the court orders the vehicle to be seized and forfeited under s. 346.65 (6).

SB66, s. 8 Section 8. 343.301 (1) (c) of the statutes is renumbered 343.301 (1) (c) 1.

SB66, s. 9 Section 9. 343.301 (1) (c) 2. of the statutes is created to read:

SB66,7,22 343.301 (1) (c) 2. If the court enters an order under par. (a), the court shall determine the amount of the person's income, and, if the person's income is less than the income limitations in s. 49.145 (3) (b), the court shall reduce any fine imposed upon the person as a result of his or her conviction under s. 346.63 (1) or (2), 940.09 (1), or 940.25 by the amount necessary to pay for the installation and maintenance of the ignition interlock device.

SB66, s. 10 Section 10. 343.301 (1) (cm) of the statutes is created to read:

SB66,8,2 343.301 (1) (cm) The company that equips the ignition interlock device on a motor vehicle may not remove the device or terminate the contract for the maintenance of the device during the period that the court ordered under par. (b) without the court's permission.

SB66, s. 11 Section 11. 346.65 (2) (am) 3. of the statutes is amended to read:

SB66,8,10 346.65 (2) (am) 3. Except as provided in subd. 3m. and pars. (cm), (f), and (g), shall be fined not less than $600 nor more than $2,000 and imprisoned for not less than 30 days nor more than one year in the county jail 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 3, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one.

SB66, s. 12 Section 12. 346.65 (2) (am) 3m. of the statutes is created to read:

SB66,8,17 346.65 (2) (am) 3m. Except as provided in pars. (cm), (f), and (g), is guilty of a Class I felony and shall be fined not less than $600 and imprisoned for not less than 60 days if the number of suspensions, revocations, and other convictions counted under s. 343.307 (1) within a 5-year period, equals 3, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one.

SB66, s. 13 Section 13. 346.65 (2) (am) 4. of the statutes is amended to read:

SB66,8,25 346.65 (2) (am) 4. Except as provided in pars. (f) and (g), is guilty of a Class I felony and shall be fined not less than $600 nor more than $2,000 and imprisoned for not less than 60 days nor more than one year in the county jail 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 4, except that suspensions, revocations or convictions arising out of the same incident or occurrence shall be counted as one.

SB66, s. 14 Section 14. 346.65 (2) (bm) of the statutes is amended to read:

SB66,9,13 346.65 (2) (bm) In Winnebago County any county that opts to offer a reduced minimum period of imprisonment for the successful completion of a probation period that includes alcohol and other drug treatment, 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) within a 10-year period, equals 2, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one, the fine shall be the same as under par. (am) 2., but the period of imprisonment shall be not less than 5 days, except that if the person successfully completes a period of probation that includes alcohol and other drug treatment, the period of imprisonment shall be not less than 5 nor more than 7 days. A person may be sentenced under this paragraph or under par. (cm) or sub. (2j) (bm) or (cm) or (3r) once in his or her lifetime.

SB66, s. 15 Section 15. 346.65 (2) (cm) of the statutes is amended to read: