AB846: Bill Text

March 7, 2014 - Introduced by Representatives Richards, Berceau, Clark, Hulsey, Sargent, Sinicki and Wachs, cosponsored by Senator Carpenter. Referred to Committee on Judiciary.

AB846,1,11 An Act to repeal 343.307 (1) (a); and to amend 66.0114 (1) (b), 85.53 (1) (d), 343.16 (5) (a), 343.30 (1q) (a), 343.30 (1q) (b) (intro.), 343.30 (1q) (b) 4m., 343.30 (1q) (h), 343.303, 343.305 (3) (a), 343.305 (3) (b), 343.305 (5) (b), 343.305 (9) (a) 1., 343.305 (9) (a) 5. a., 343.305 (9) (d), 343.307 (1) (c), 343.307 (2) (a), 343.307 (2) (c), 343.44 (2p) (b), 343.44 (2p) (c), 345.20 (2) (c), 345.24 (1), 345.60 (3), 346.63 (4), 346.635, 346.65 (2) (am) 1., 346.65 (2e), 346.65 (2g) (a), 346.65 (2g) (ag), 346.65 (2g) (am), 346.65 (2i), 346.65 (2m) (a), 346.655 (1), 349.03 (2m), 349.03 (4), 349.06 (1m), 800.035 (2) (a) 3., 800.035 (5) (a), 800.035 (5) (c), 967.055 (2) (a), 967.055 (3) (a), 967.055 (3) (b) and 972.11 (3m) of the statutes; relating to: making the first offense of operating a motor vehicle while under the influence of an intoxicant a crime, making an appropriation, and providing a penalty.

Analysis by the Legislative Reference Bureau

Under current law, a first offense of operating a motor vehicle while under the influence of an intoxicant (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 April 1, 2015, is guilty of a crime and may be fined not less than $150 nor more than $300 and imprisoned for not more than five days, or both.

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:

AB846,1 Section 1. 66.0114 (1) (b) of the statutes is amended to read:

AB846,2,11 66.0114 (1) (b) Local ordinances, except as provided in this paragraph or ss. 345.20 to 345.53, may contain a provision for stipulation of guilt or no contest of any or all violations under those ordinances, may designate the manner in which the stipulation is to be made, and may fix the penalty to be paid. When a person charged with a violation for which stipulation of guilt or no contest is authorized makes a timely stipulation and pays the required penalty, plus costs, fees, and surcharges imposed under ch. 814, to the designated official, the person need not appear in court and no witness fees or other additional costs, fees, or surcharges may be imposed under ch. 814 unless the local ordinance so provides. A court appearance is required for a violation of a local ordinance in conformity with s. 346.63 (1).

AB846,2 Section 2. 85.53 (1) (d) of the statutes is amended to read:

AB846,2,15 85.53 (1) (d) "Operating while intoxicated" means a violation of s. 346.63 (1) or (2m) or a local ordinance in conformity therewith or of s. 346.63 (1), (2), or (6), 940.09 (1) or 940.25.

AB846,3 Section 3. 343.16 (5) (a) of the statutes is amended to read:

AB846,3,23 343.16 (5) (a) The secretary may require any applicant for a license or any licensed operator to submit to a special examination by such persons or agencies as the secretary may direct to determine incompetency, physical or mental disability, disease, or any other condition that might prevent such applicant or licensed person from exercising reasonable and ordinary control over a motor vehicle. If the department requires the applicant to submit to an examination, the applicant shall pay for the examination. If the department receives an application for a renewal or duplicate license after voluntary surrender under s. 343.265 or receives a report from a physician, physician assistant, as defined in s. 448.01 (6), advanced practice nurse prescriber certified under s. 441.16 (2), or optometrist under s. 146.82 (3), or if the department has a report of 2 or more arrests within a one-year period for any combination of violations of s. 346.63 (1) or (5) or a local ordinance in conformity with s. 346.63 (1) or (5) or a law of a federally recognized American Indian tribe or band in this state in conformity with s. 346.63 (1) or (5), or s. 346.63 (1m), 1985 stats., or s. 346.63 (2) or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, the department shall determine, by interview or otherwise, whether the operator should submit to an examination under this section. The examination may consist of an assessment. If the examination indicates that education or treatment for a disability, disease or condition concerning the use of alcohol, a controlled substance or a controlled substance analog is appropriate, the department may order a driver safety plan in accordance with s. 343.30 (1q). If there is noncompliance with assessment or the driver safety plan, the department shall revoke the person's operating privilege in the manner specified in s. 343.30 (1q) (d).

AB846,4 Section 4. 343.30 (1q) (a) of the statutes is amended to read:

AB846,4,6 343.30 (1q) (a) If a person is convicted under s. 346.63 (1) or a local ordinance in conformity therewith, the court shall proceed under this subsection. If a person is convicted under s. 346.63 (2) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, the court shall proceed under pars. (c) and (d). If a person is referred by the department acting under s. 343.16 (5) (a), the department shall proceed under pars. (c) and (d) without the order of the court.

AB846,5 Section 5. 343.30 (1q) (b) (intro.) of the statutes is amended to read:

AB846,4,9 343.30 (1q) (b) (intro.) For persons convicted under s. 346.63 (1) or a local ordinance in conformity therewith:

AB846,6 Section 6. 343.30 (1q) (b) 4m. of the statutes is amended to read:

AB846,4,15 343.30 (1q) (b) 4m. 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) or a local ordinance in conformity with s. 346.63 (1), the applicable minimum and maximum revocation periods under subd. 2., 3. or 4. for the conviction are doubled.

AB846,7 Section 7. 343.30 (1q) (h) of the statutes is amended to read:

AB846,5,2 343.30 (1q) (h) The court or department shall provide that the period of suspension or revocation imposed under this subsection shall be reduced by any period of suspension or revocation previously served under s. 343.305 if the suspension or revocation under s. 343.305 and the conviction for violation of s. 346.63 (1) or (2m), or a local ordinance in conformity therewith with s. 346.63 (2m), arise out of the same incident or occurrence. The court or department shall order that the period of suspension or revocation imposed under this subsection run concurrently with any period of time remaining on a suspension or revocation imposed under s. 343.305 arising out of the same incident or occurrence. The court may modify an occupational license authorized under s. 343.305 (8) (d) in accordance with this subsection.

AB846,8 Section 8. 343.303 of the statutes is amended to read:

AB846,5,25 343.303 Preliminary breath screening test. If a law enforcement officer has probable cause to believe that the person is violating or has violated s. 346.63 (1) or (2m) or a local ordinance in conformity therewith, or s. 346.63 (1), (2), or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, or if the officer detects any presence of alcohol, a controlled substance, controlled substance analog or other drug, or a combination thereof, on a person driving or operating or on duty time with respect to a commercial motor vehicle or has reason to believe that the person is violating or has violated s. 346.63 (7) or a local ordinance in conformity therewith, the officer, prior to an arrest, may request the person to provide a sample of his or her breath for a preliminary breath screening test using a device approved by the department for this purpose. The result of this preliminary breath screening test may be used by the law enforcement officer for the purpose of deciding whether or not the person shall be arrested for a violation of s. 346.63 (1), (2m), (5), or (7) or a local ordinance in conformity therewith, or s. 346.63 (1), (2), or (6), 940.09 (1), or 940.25 and whether or not to require or request chemical tests as authorized under s. 343.305 (3). The result of the preliminary breath screening test shall not be admissible in any action or proceeding except to show probable cause for an arrest, if the arrest is challenged, or to prove that a chemical test was properly required or requested of a person under s. 343.305 (3). Following the screening test, additional tests may be required or requested of the driver under s. 343.305 (3). The general penalty provision under s. 939.61 (1) does not apply to a refusal to take a preliminary breath screening test.

AB846,9 Section 9. 343.305 (3) (a) of the statutes is amended to read:

AB846,6,8 343.305 (3) (a) Upon arrest of a person for violation of s. 346.63 (1), (2m) or (5) or a local ordinance in conformity therewith, or for a violation of s. 346.63 (1), (2), or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, or upon arrest subsequent to a refusal under par. (ar), a law enforcement officer may request the person to provide one or more samples of his or her breath, blood or urine for the purpose specified under sub. (2). Compliance with a request for one type of sample does not bar a subsequent request for a different type of sample.

AB846,10 Section 10. 343.305 (3) (b) of the statutes is amended to read:

AB846,6,19 343.305 (3) (b) A person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent under this subsection, and if a law enforcement officer has probable cause to believe that the person has violated s. 346.63 (1), (2m) or (5) or a local ordinance in conformity therewith, or s. 346.63 (1), (2), or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, or detects any presence of alcohol, controlled substance, controlled substance analog or other drug, or a combination thereof, on a person driving or operating or on duty time with respect to a commercial motor vehicle or has reason to believe the person has violated s. 346.63 (7), one or more samples specified in par. (a) or (am) may be administered to the person.

AB846,11 Section 11. 343.305 (5) (b) of the statutes is amended to read:

AB846,7,3 343.305 (5) (b) Blood may be withdrawn from the person arrested for violation of s. 346.63 (1), (2), (2m), (5) or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, or a local ordinance in conformity with s. 346.63 (1), (2m) or (5), or as provided in sub. (3) (am) or (b) to determine the presence or quantity of alcohol, a controlled substance, a controlled substance analog or any other drug, or any combination of alcohol, controlled substance, controlled substance analog and any other drug in the blood only by a physician, registered nurse, medical technologist, physician assistant or person acting under the direction of a physician.

AB846,12 Section 12. 343.305 (9) (a) 1. of the statutes is amended to read:

AB846,7,8 343.305 (9) (a) 1. That prior to a request under sub. (3) (a), the officer had placed the person under arrest for a violation of s. 346.63 (1), (2m) or (5) or a local ordinance in conformity therewith or s. 346.63 (1), (2), or (6), 940.09 (1), or 940.25 or had requested the person to take a test under sub. (3) (ar).

AB846,13 Section 13. 343.305 (9) (a) 5. a. of the statutes is amended to read:

AB846,7,21 343.305 (9) (a) 5. a. Whether the officer had probable cause to believe the person was driving or operating a motor vehicle while under the influence of alcohol, a controlled substance or a controlled substance analog or any combination of alcohol, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders the person incapable of safely driving, or under the combined influence of alcohol and any other drug to a degree which renders the person incapable of safely driving, having a restricted controlled substance in his or her blood, or having a prohibited alcohol concentration or, if the person was driving or operating a commercial motor vehicle, an alcohol concentration of 0.04 or more and whether the person was lawfully placed under arrest for violation of s. 346.63 (1), (2m) or (5) or a local ordinance in conformity therewith or s. 346.63 (1), (2), or (6), 940.09 (1), or 940.25.

AB846,14 Section 14. 343.305 (9) (d) of the statutes is amended to read:

AB846,8,5 343.305 (9) (d) At the close of the hearing, or within 5 days thereafter, the court shall determine the issues under par. (a) 5. or (am) 5. If all issues are determined adversely to the person, the court shall proceed under sub. (10). If one or more of the issues is determined favorably to the person, the court shall order that no action be taken on the operating privilege on account of the person's refusal to take the test in question. This section does not preclude the prosecution of the person for violation of s. 346.63 (1), (2m), (5), or (7) or a local ordinance in conformity therewith, or s. 346.63 (1), (2), or (6), 940.09 (1), or 940.25.

AB846,15 Section 15. 343.307 (1) (a) of the statutes is repealed.

AB846,16 Section 16. 343.307 (1) (c) of the statutes is amended to read:

AB846,8,9 343.307 (1) (c) Convictions for violations under s. 346.63 (1) or (2) or 940.25, or s. 940.09 where the offense involved the use of a vehicle.

AB846,17 Section 17. 343.307 (2) (a) of the statutes is amended to read:

AB846,8,12 343.307 (2) (a) Convictions for violations under s. 346.63 (1) or (5), or a local ordinance in conformity with either section s. 346.63 (5).

AB846,18 Section 18. 343.307 (2) (c) of the statutes is amended to read:

AB846,8,14 343.307 (2) (c) Convictions for violations under s. 346.63 (1), (2), or (6).

AB846,19 Section 19. 343.44 (2p) (b) of the statutes is amended to read:

AB846,8,17 343.44 (2p) (b) Violating s. 346.63 (1) or (5) or a local ordinance in conformity therewith.

AB846,20 Section 20. 343.44 (2p) (c) of the statutes is amended to read:

AB846,8,19 343.44 (2p) (c) Violating s. 346.63 (1), (2), or (6), 940.09 (1), or 940.25.

AB846,21 Section 21. 345.20 (2) (c) of the statutes is amended to read:

AB846,8,23 345.20 (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.

AB846,22 Section 22. 345.24 (1) of the statutes is amended to read:

AB846,9,7 345.24 (1) A person arrested under s. 346.63 (1) or (5) or an a local ordinance in conformity therewith or s. 346.63 (1), (2), or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, may not be released until 12 hours have elapsed from the time of his or her arrest or unless a chemical test administered under s. 343.305 shows that the person has an alcohol concentration of less than 0.04, but the person may be released to his or her attorney, spouse, relative, or other responsible adult at any time after arrest.

AB846,23 Section 23. 345.60 (3) of the statutes is amended to read:

AB846,9,13 345.60 (3) In addition to other penalties provided by law for violation of s. 346.63 (1) or a local ordinance in conformity therewith, or s. 346.63 or (2) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, the convicted person may be required under s. 343.30 (1q) to attend, for a certain number of school days, a school under sub. (1).

AB846,24 Section 24. 346.63 (4) of the statutes is amended to read:

AB846,9,16 346.63 (4) If a person is convicted under sub. (1) or a local ordinance in conformity therewith, or sub. (2), the court shall proceed under s. 343.30 (1q).

AB846,25 Section 25. 346.635 of the statutes is amended to read:

AB846,9,23 346.635 Report arrest or out-of-service order to department. Whenever a law enforcement officer arrests a person for a violation of s. 346.63 (1), (5) or (7), or a local ordinance in conformity therewith, or s. 346.63 (1), (2), or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, the officer shall notify the department of the arrest and of issuance of an out-of-service order under s. 343.305 (7) (b) or (9) (am) as soon as practicable.

AB846,26 Section 26. 346.65 (2) (am) 1. of the statutes is amended to read:

AB846,10,3 346.65 (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), shall be fined not less than $150 nor more than $300 and imprisoned for not more than 5 days, or both.

AB846,27 Section 27. 346.65 (2e) of the statutes is amended to read:

AB846,10,10 346.65 (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).

AB846,28 Section 28. 346.65 (2g) (a) of the statutes is amended to read:

AB846,10,20 346.65 (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., 4m., 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).

AB846,29 Section 29. 346.65 (2g) (ag) of the statutes is amended to read:

AB846,11,4 346.65 (2g) (ag) If the court determines that a person does not have the ability to pay a fine imposed under sub. (2) (am) 2., 3., 4., 4m., 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.

AB846,30 Section 30. 346.65 (2g) (am) of the statutes is amended to read:

AB846,11,15 346.65 (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.

AB846,31 Section 31. 346.65 (2i) of the statutes is amended to read:

AB846,12,16 346.65 (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 (1) or (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) (am) 1. to representation by counsel under ch. 977.

AB846,32 Section 32. 346.65 (2m) (a) of the statutes is amended to read:

AB846,13,2 346.65 (2m) (a) In imposing a sentence under sub. (2) for a violation of s. 346.63 (1) (am) or (b) or (5) or a local ordinance in conformity therewith with s. 346.63 (5), the court shall review the record and consider the aggravating and mitigating factors in the matter. If the amount of alcohol in the person's blood or urine or the amount of a restricted controlled substance in the person's blood is known, the court shall consider that amount as a factor in sentencing. The chief judge of each judicial administrative district shall adopt guidelines, under the chief judge's authority to adopt local rules under SCR 70.34, for the consideration of aggravating and mitigating factors.

AB846,33 Section 33. 346.655 (1) of the statutes, as affected by 2013 Wisconsin Act 20, is amended to read:

AB846,13,9 346.655 (1) If a court imposes a fine or a forfeiture for a violation of s. 346.63 (1) or (5), or a local ordinance in conformity therewith, or s. 346.63 (1), (2), or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, it shall impose a driver improvement surcharge under ch. 814 in an amount of $435 in addition to the fine or forfeiture, plus costs, fees, and other surcharges imposed under ch. 814.

AB846,34 Section 34. 349.03 (2m) of the statutes is amended to read:

AB846,13,12 349.03 (2m) Notwithstanding sub. (2), a municipal court may suspend a license for a violation of a local ordinance in conformity with s. 346.63 (1) or (2m).

AB846,35 Section 35. 349.03 (4) of the statutes is amended to read:

AB846,13,16 349.03 (4) If a violation under s. 343.305 or 346.63 or a local ordinance in conformity with s. 346.63 (1), (5) or (7) occurs within a law enforcement officer's jurisdiction, he or she may enforce the violation anywhere in the state.

AB846,36 Section 36. 349.06 (1m) of the statutes is amended to read:

AB846,13,19 349.06 (1m) Notwithstanding sub. (1), a municipal court may suspend a license for a violation of a local ordinance in conformity with s. 346.63 (1) or (2m).

AB846,37 Section 37. 800.035 (2) (a) 3. of the statutes is amended to read:

AB846,13,22 800.035 (2) (a) 3. Inform the defendant of the right to a jury trial on charges filed under an a local ordinance in conformity with s. 346.63 (1) or (5).

AB846,38 Section 38. 800.035 (5) (a) of the statutes is amended to read:

AB846,14,3 800.035 (5) (a) If a defendant is charged with a violation of an a local ordinance in conformity with s. 346.63 (1) or (5), the municipality may, by ordinance, require the defendant to appear in person before the court.

AB846,39 Section 39. 800.035 (5) (c) of the statutes is amended to read:

AB846,14,16 800.035 (5) (c) If a defendant charged with a violation of an a local ordinance that is in conformity with s. 346.63 (1) or (5) pleads not guilty and within 10 days after entry of the plea requests a jury trial and pays the required fees, the municipal judge shall promptly transmit all papers and fees in the cause to the clerk of the circuit court of the county where the violation occurred for a jury trial under s. 345.43. The plea of not guilty and request for jury trial may be made in writing. If the person refused to take a test under s. 343.305 (3) and requested a hearing under s. 343.305 (9) to determine if the person's refusal was proper, the papers and fees involved in that action shall be transferred to the same circuit court, which shall conduct the refusal hearing. Upon receipt of the request, the circuit court shall set a time for trial. Any deposit made personally or in writing is forfeited upon nonappearance at the time set for trial. The required fee for a jury is prescribed in s. 814.61 (4).

AB846,40 Section 40. 967.055 (2) (a) of the statutes is amended to read: