AB128: Bill Text

Analysis by the Legislative Reference Bureau

This bill is explained in the Notes provided by the Joint Legislative Council in the bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

Joint Legislative Council prefatory note: This bill was prepared for the Joint Legislative Council's Study Committee on the Review of Criminal Penalties.

Background

Crime is conduct that is prohibited by law and punishable by a fine or a term of imprisonment or both. Each criminal offense is either a felony or a misdemeanor. A crime punishable by imprisonment for more than one year is a felony. A crime that is punishable by imprisonment for less than one year is a misdemeanor. If a statute specifies a maximum term of imprisonment of one year, the crime is a misdemeanor if the statute specifies that a one-year sentence should be served in a county jail; otherwise, the crime is a felony. Conduct punishable only by a forfeiture is not a crime.

Classification of Unclassified Misdemeanors

Classified criminal offenses are offenses for which the penalty is established by reference to a particular "class" that corresponds to a set penalty range. Under current law, misdemeanors in chs. 939 to 951 of the statutes (the Criminal Code) are classified as follows:

• Class A Misdemeanor, which is punishable by a fine not to exceed $10,000, imprisonment not to exceed 9 months, or both.

• Class B Misdemeanor, which is punishable by a fine not to exceed $1,000, imprisonment not to exceed 90 days, or both.

• Class C Misdemeanor, which is punishable by a fine not to exceed $500, imprisonment not to exceed 30 days, or both.

Currently, misdemeanors in portions of the Wisconsin Statutes other than the Criminal Code are not classified. Instead, the penalties for these "unclassified" misdemeanors are established separately for each offense.

This bill classifies the majority of unclassified misdemeanors by placing each misdemeanor to be classified within one of the three classes of misdemeanors described above. The class into which this bill places each unclassified misdemeanor is generally determined by the following principles:

• If the current penalty for an unclassified misdemeanor is exactly the same as the penalty prescribed for a particular misdemeanor class, the misdemeanor is placed into that class.

• If the current penalty for an unclassified misdemeanor is not exactly the same as the penalty prescribed for a particular misdemeanor class, the misdemeanor is classified as follows:

○ For offenses in which the maximum term of imprisonment corresponds exactly to the term of imprisonment prescribed for an existing class, the offense is placed within that class.

○ For offenses that are currently penalized with a maximum term of imprisonment that lies between two existing classes or is greater than nine months, the offense is placed in the lower class or in Class A, respectively.

• If the current penalty for an offense does not include a term of imprisonment, the misdemeanor is not classified.

Certain misdemeanors classified by this bill are not placed in classes according to the principles described above because after initially applying these principles to each unclassified misdemeanor, the Study Committee reviewed the preliminary class assignments and adjusted them as it deemed necessary. This bill does not change the penalties for, or classify, crimes concerning operating while intoxicated, drug offenses, crimes related to elections and public officials, crimes related to public assistance under ch. 49, Stats., and various other misdemeanor offenses the Study Committee directed not be treated.

Misdemeanors Changed to Civil Forfeitures

This bill changes the penalty for certain misdemeanor offenses to a civil forfeiture. Most of the misdemeanor offenses changed, under the bill, to civil forfeitures are misdemeanors that currently carry a penalty of a fine only, not a term of imprisonment.

Obsolete Misdemeanors Repealed

This bill repeals certain offenses, determined by the Study Committee to be obsolete or no longer relevant, relating to occupational iron ore taxes, milk contractors, weather modification, the regulation of trading stamps, unlawful presence in school buildings, telegraphs and telegrams, taxes on controlled substances, operation of corn shredders and threshing machines, using or displaying standard time by a business, physical endurance contests, and the Citizens Utility Board.

Civil Forfeiture Procedures

Under current law, a law enforcement officer may issue a citation for a forfeiture violation if a statute specifically provides that a citation may be issued for violations of that offense. A citation is generally sufficient to serve as the initial pleading for the action and gives a court jurisdiction over the person. When authority for a law enforcement officer to issue a citation for a forfeiture offense violation is not provided by statute, the offense may be prosecuted by a district attorney and initiated through the filing of a complaint. Also under current law, specific discovery rules apply to certain types of civil forfeiture offenses, such as traffic offenses. Absent discovery rules specific to the offense, discovery in civil forfeiture proceedings is governed by the civil procedure rules of discovery.

This bill expands the number of forfeiture violations for which a law enforcement officer may issue a citation by applying the citation procedure that currently may only be used for certain limited violations to any civil forfeiture for which a different procedure is not specifically prescribed. This bill also provides that the criminal procedure rules of discovery apply to civil forfeiture actions initiated by this citation procedure.

AB128,1 Section 1. 16.009 (5) (b) of the statutes is amended to read:

AB128,7,4 16.009 (5) (b) Any person who violates par. (a) may be fined not more than $1,000 or imprisoned for not more than 6 months or both is guilty of a Class B misdemeanor.

AB128,2 Section 2. 16.845 (1) of the statutes is amended to read:

AB128,8,9 16.845 (1) Rule; penalty. Except as elsewhere expressly prohibited, the managing authority of any facility owned by the state or by the University of Wisconsin Hospitals and Clinics Authority or leased from the state by the Fox River Navigational System Authority may permit its use for free discussion of public questions, or for civic, social, recreational or athletic activities. No such use shall be permitted if it would unduly burden the managing authority or interfere with the prime use of such facility. The applicant for use shall be liable to the state, to the Fox River Navigational System Authority, or to the University of Wisconsin Hospitals and Clinics Authority for any injury done to its property, for any expense arising out of any such use and for such sum as the managing authority may charge for such use. All such sums payable to the state shall be paid into the general fund and credited to the appropriation account for the operation of the facility used. The managing authority may permit such use notwithstanding the fact that a reasonable admission fee may be charged to the public. Whoever does or attempts to do an act for which a permit is required under this section without first obtaining the permit may be fined not more than $100 or imprisoned not more than 30 days or both is guilty of a Class C misdemeanor. This subsection applies only to those facilities for which a procedure for obtaining a permit has been established by the managing authority.

AB128,3 Section 3. 16.846 (1) (a) of the statutes is amended to read:

AB128,8,16 16.846 (1) (a) The department shall promulgate under ch. 227, and shall enforce or have enforced, rules of conduct for property leased or managed by the department. Unless the rule specifies a penalty as provided under par. (b), a person found guilty of violating a rule promulgated under this subsection shall be fined not more than $100 or imprisoned for not more than 30 days or both who violates a rule promulgated under this subsection is guilty of a Class C misdemeanor.

AB128,4 Section 4. 19.24 of the statutes is amended to read:

AB128,8,25 19.24 Refusal to deliver money, etc., to successor. Any public officer whatever, in this state, who shall, at the expiration of the officer's term of office, refuse or willfully neglect to deliver, on demand, to the officer's successor in office, after such successor shall have been duly qualified and be entitled to said office according to law, all moneys, records, books, papers or other property belonging to the office and in the officer's hands or under the officer's control by virtue thereof, shall be imprisoned not more than 6 months or fined not more than $100 is guilty of a Class B misdemeanor.

AB128,5 Section 5. 23.095 (3) (d) 2. of the statutes is amended to read:

AB128,9,6 23.095 (3) (d) 2. Except as provided in subd. 3., if a person violates sub. (1m) or (2m) and the violation involves intentionally damaging or intentionally attempting to damage an archaeological feature, the person shall be fined not more than $10,000 or imprisoned for not more than 9 months or both is guilty of a Class A misdemeanor.

AB128,6 Section 6. 23.22 (8) (b) of the statutes is amended to read:

AB128,9,11 23.22 (8) (b) Any person who intentionally violates any rule promulgated under sub. (2) (b) 6. or any permit issued under those rules shall be fined not less than $1,000 nor more than $5,000, or shall be imprisoned for not less than 6 months nor more than 9 months or both is guilty of a Class A misdemeanor.

AB128,7 Section 7. 23.22 (8) (c) of the statutes is amended to read:

AB128,9,18 23.22 (8) (c) A person who violates a rule promulgated under sub. (2) (b) 6. or any permit issued under those rules and who, within 5 years before the arrest of the current conviction, was previously convicted of a violation of a rule promulgated under sub. (2) (b) 6. or any permit issued under those rules shall be fined not less than $700 nor more than $2,000 or shall be imprisoned for not less than 6 months nor more than 9 months or both is guilty of a Class A misdemeanor.

AB128,8 Section 8. 23.24 (6) (b) of the statutes is amended to read:

AB128,9,24 23.24 (6) (b) A person who violates sub. (3) and who, within 5 years before the arrest of the current conviction, was previously convicted of a violation of sub. (3) shall be fined not less than $700 nor more than $2,000 or shall be imprisoned for not less than 6 months nor more than 9 months or both is guilty of a Class A misdemeanor.

AB128,9 Section 9. 26.14 (5) of the statutes is amended to read:

AB128,10,5 26.14 (5) Any person who sets a fire or assists in the setting of a fire, including a back fire, on any lands in this state and fails to totally extinguish such fire before leaving it shall forfeit not more than $100 for the first offense and shall be fined not more than $500 or imprisoned for not more than 30 days or both for each subsequent offense is guilty of a Class C misdemeanor for a 2nd or subsequent offense.

AB128,10 Section 10. 26.14 (6) of the statutes is amended to read:

AB128,10,10 26.14 (6) Any person who sets a fire or assists in setting a fire, including a back fire, on any lands in this state and allows the fire to escape and become a forest fire shall be fined not more than $1,000 or imprisoned not more than 90 days or both is guilty of a Class B misdemeanor.

AB128,11 Section 11. 26.14 (7) of the statutes is amended to read:

AB128,10,16 26.14 (7) Any person who sets or assists in setting a fire upon marsh or other land in the state for the purpose of driving out game birds or animals shall be fined not more than $1,000 or imprisoned not more than 90 days or both is guilty of a Class B misdemeanor. The possession of firearms upon any marsh while it is on fire shall be prima facie evidence of such violation.

AB128,12 Section 12. 26.19 (1) of the statutes is amended to read:

AB128,10,20 26.19 (1) Any person who destroys, defaces, removes or molests any forest protection equipment or property shall be fined not more than $10,000 or imprisoned not more than 9 months or both is guilty of a Class A misdemeanor.

AB128,13 Section 13. 26.20 (9) (b) of the statutes is amended to read:

AB128,10,23 26.20 (9) (b) Any corporation, by its officers, agents or employees, willfully violating this section shall be fined forfeit not more than $1,000 $10,000.

AB128,14 Section 14. 26.985 (2) of the statutes is amended to read:

AB128,11,6 26.985 (2) Except as provided in subs. (3) and (4), if a person is convicted of a violation and has one or more convictions, within the 5 years prior to the current conviction, for one or more violations, the person shall be fined not more than $100 or imprisoned for not more than 6 months or both is guilty of a Class B misdemeanor. The prosecution shall allege and prove the prior convictions in the manner specified in s. 29.974.

AB128,15 Section 15. 26.985 (3) of the statutes is amended to read:

AB128,11,13 26.985 (3) Except as provided in sub. (4), if a person is convicted of a violation and has 3 or more convictions, within the 3 years prior to the current conviction, for one or more violations, the person shall be fined not more than $2,000 or imprisoned for not more than 9 months or both is guilty of a Class A misdemeanor. The prosecution shall allege and prove the prior convictions in the manner specified in s. 29.974.

AB128,16 Section 16. 29.088 (2) of the statutes is amended to read:

AB128,11,21 29.088 (2) Except as provided in sub. (3), no person may take, capture or kill or attempt to take, capture or kill any wild animal with the aid of any explosive or poison gas, or set any explosive near or on any beaver or muskrat houses. Possession or control of an explosive or a poison gas in places described in sub. (1) is prima facie evidence of intent to violate this subsection. Any person who violates this subsection shall be fined not more than $300 or imprisoned for not more than 30 days or both is guilty of a Class C misdemeanor.

AB128,17 Section 17. 29.331 (5) (b) of the statutes is amended to read:

AB128,12,2 29.331 (5) (b) A person who violates this subsection shall be fined not less than $300 nor more than $1,000 or imprisoned not more than 90 days or both is guilty of a Class B misdemeanor. In addition, if a person violates this subsection, the court shall revoke all licenses issued to the person under this chapter for 5 years.

AB128,18 Section 18. 29.341 (2) of the statutes is amended to read:

AB128,12,8 29.341 (2) Any person intentionally failing to comply with sub. (1) shall be fined not more than $5,000, or imprisoned in the county jail not more than one year, or both. Any person who neglects to comply with sub. (1) shall be fined not more than $5,000 or imprisoned not more than 9 months or both who fails to comply with sub. (1) is guilty of a Class A misdemeanor.

AB128,19 Section 19. 29.501 (10) of the statutes is amended to read:

AB128,12,12 29.501 (10) Any person who violates this section shall be fined not more than $1,000, or imprisoned not more than 9 months, or both is guilty of a Class A misdemeanor. Any person violating sub. (6m) shall forfeit not more than $100.

AB128,20 Section 20. 29.601 (1) (b) of the statutes is amended to read:

AB128,12,16 29.601 (1) (b) Whoever violates this subsection shall be fined not more than $500 or imprisoned for not more than 90 days or both is guilty of a Class B misdemeanor.

AB128,21 Section 21. 29.601 (3) (c) 2. of the statutes is amended to read:

AB128,12,20 29.601 (3) (c) 2. Any person who intentionally violates this subsection shall be fined not more than $200 or imprisoned not more than 90 days or both is guilty of a Class B misdemeanor.

AB128,22 Section 22. 29.604 (5) (a) 1. of the statutes is amended to read:

AB128,13,5 29.604 (5) (a) 1. Whoever violates sub. (4) (a) shall forfeit not less than $500 nor more than $2,000. In addition, the court shall order the revocation of all hunting approvals issued to the person under this chapter and shall prohibit the issuance of any new hunting approvals under this chapter for one year. Whoever intentionally violates sub. (4) (a) shall be fined not less than $2,000 nor more than $5,000 or imprisoned for not more than 9 months or both is guilty of a Class A misdemeanor. In addition, the court shall order the revocation of all hunting approvals issued to the person under this chapter and shall prohibit the issuance of any new hunting approvals under this chapter for 3 years.

AB128,23 Section 23. 29.604 (5) (a) 2. of the statutes is amended to read:

AB128,13,10 29.604 (5) (a) 2. Whoever violates sub. (4) (b) or (c) shall forfeit not more than $1,000. Whoever intentionally violates sub. (4) (b) or (c) shall be fined not more than $1,000 or imprisoned for not more than 9 months or both is guilty of a Class A misdemeanor.

AB128,24 Section 24. 29.957 of the statutes is amended to read:

AB128,13,18 29.957 Breaking seals of department. Any person who breaks, removes or interferes with any seal or tag attached to any animal, carcass or object by the department, or who interferes with any animal, carcass or object with a seal or tag attached, or who counterfeits a seal or tag, attached or unattached, shall be fined not more than $500 or imprisoned for not more than 90 days or both is guilty of a Class B misdemeanor. This section applies to seals and tags required by the department under this chapter or ch. 169.

AB128,25 Section 25. 29.964 (1) of the statutes is amended to read:

AB128,13,21 29.964 (1) Shall be fined not more than $200 or imprisoned not more than 90 days or both Is guilty of a Class B misdemeanor; and

AB128,26 Section 26. 29.967 (1) (b) of the statutes is amended to read:

AB128,13,24 29.967 (1) (b) If the number of convictions in a 5-year period equals 2 or more, the person shall be fined forfeit not less than $500 nor more than $1,000.

AB128,27 Section 27. 29.967 (3) of the statutes is amended to read:

AB128,14,4 29.967 (3) Any person who obtains any approval under this chapter during the period of time when that approval is revoked by any court shall be fined not more than $200 or imprisoned not more than 90 days or both is guilty of a Class B misdemeanor.

AB128,28 Section 28. 29.971 (1) (b) of the statutes is amended to read:

AB128,14,11 29.971 (1) (b) For taking, transporting, acquiring, selling, purchasing, or possessing, or attempting to take, acquire, transport, sell, purchase, or possess, any fish, or failing to comply with any record-keeping requirement for fish, in violation of this chapter that has a value under par. (d) exceeding $300 but not exceeding $1,000, by a fine of not less than $1,000 nor more than $5,000 or imprisonment for not more than 30 days or both as a Class A misdemeanant.

AB128,29 Section 29. 29.971 (1m) (b) of the statutes is amended to read:

AB128,14,16 29.971 (1m) (b) For possessing clams in violation of s. 29.537, if the value of the clams under par. (d) exceeds $300 but does not exceed $1,000, by a fine of not more than $5,000 or imprisonment for not more than 30 days or both as a Class A misdemeanant.

AB128,30 Section 30. 29.971 (5) of the statutes is amended to read:

AB128,14,23 29.971 (5) For violation of s. 29.539, except s. 29.539 (3m), by a fine of not less than $1,000 nor more than $2,000 or imprisonment for not more than 6 months or both as a Class B misdemeanant. In addition, the court shall order the revocation of all hunting and sport fishing approvals issued to the person under this chapter and shall prohibit the issuance of any new hunting or sport fishing approvals under this chapter to the person for 5 years.

AB128,31 Section 31. 29.971 (5g) of the statutes is amended to read:

AB128,15,6 29.971 (5g) For violation of s. 29.541, by a fine of not more than $500 or imprisonment for not more than 90 days or both as a Class C misdemeanant. In addition, the court shall order the revocation of all hunting and sport fishing approvals issued to the person under this chapter and shall prohibit the issuance of any new hunting or sport fishing approvals under this chapter to the person for 3 years.