343.305(3)(a)(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 (2) or
(6) or
940.25, or
s. 940.09 where the offense involved the use of a vehicle, 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.
343.305(3)(am)
(am) Prior to arrest, 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) whenever a law enforcement officer detects any presence of alcohol, a controlled substance, a 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 is violating or has violated
s. 346.63 (7). Compliance with a request for one type of sample does not bar a subsequent request for a different type of sample. For the purposes of this paragraph, "law enforcement officer" includes inspectors in the performance of duties under
s. 110.07 (3).
343.305(3)(b)
(b) A person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent under this subsection, and if a law enforcement officer has probable cause to believe that the person has violated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 (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.
343.305(3)(c)
(c) This section does not limit the right of a law enforcement officer to obtain evidence by any other lawful means.
343.305(4)
(4) Information. At the time a chemical test specimen is requested under
sub. (3) (a) or
(am), the person shall be orally informed by the law enforcement officer that:
343.305(4)(a)
(a) He or she is deemed to have consented to tests under
sub. (2);
343.305(4)(b)
(b) If testing is refused, a motor vehicle owned by the person may be immobilized, seized and forfeited or equipped with an ignition interlock device if the person has 2 or more prior suspensions, revocations or convictions within a 10-year period that would be counted under
s. 343.307 (1) and the person's operating privilege will be revoked under this section;
343.305(4)(c)
(c) If one or more tests are taken and the results of any test indicate that the person has a prohibited alcohol concentration and was driving or operating a motor vehicle, the person will be subject to penalties, the person's operating privilege will be suspended under this section and a motor vehicle owned by the person may be immobilized, seized and forfeited or equipped with an ignition interlock device if the person has 2 or more prior convictions, suspensions or revocations within a 10-year period that would be counted under
s. 343.307 (1); and
343.305(4)(d)
(d) After submitting to testing, the person tested has the right to have an additional test made by a person of his or her own choosing.
343.305(4m)
(4m) Information related to commercial motor vehicles. If the person has possession of a commercial motor vehicle license or if the incident giving rise to the request for a sample under
sub. (3) (a) or
(am) is related to the driving, operating or being on duty time with respect to a commercial motor vehicle, at the time when a sample is requested under
sub. (3) (a) or
(am), the law enforcement officer shall orally inform the person of all of the following, in addition to the information provided under
sub. (4):
343.305(4m)(a)
(a) That, if one or more tests are taken and the results of any test indicate that the person has an alcohol concentration of 0.04 or more and was driving or operating a commercial motor vehicle, the person will, upon conviction of such offense, be subject to penalties and disqualified from operating a commercial motor vehicle.
343.305(4m)(b)
(b) That, if one or more tests are taken and the results of any test indicate that the person has an alcohol concentration above 0.0 and was driving or operating or on duty time with respect to a commercial motor vehicle, the person will be subject to penalties and issuance of an out-of-service order for the 24 hours following the test.
343.305(4m)(c)
(c) That, if testing is refused and the person was driving or operating or on duty time with respect to a commercial motor vehicle, the person will be issued an out-of-service order for the 24 hours following the refusal.
343.305(5)
(5) Administering the test; additional tests. 343.305(5)(a)(a) If the person submits to a test under this section, the officer shall direct the administering of the test. A blood test is subject to
par. (b). The person who submits to the test is permitted, upon his or her request, the alternative test provided by the agency under
sub. (2) or, at his or her own expense, reasonable opportunity to have any qualified person of his or her own choosing administer a chemical test for the purpose specified under
sub. (2). If the person has not been requested to provide a sample for a test under
sub. (3) (a) or
(am), the person may request a breath test to be administered by the agency or, at his or her own expense, reasonable opportunity to have any qualified person administer any test specified under
sub. (3) (a) or
(am). The failure or inability of a person to obtain a test at his or her own expense does not preclude the admission of evidence of the results of any test administered under
sub. (3) (a) or
(am). If a person requests the agency to administer a breath test and if the agency is unable to perform that test, the person may request the agency to perform a test under
sub. (3) (a) or
(am) that it is able to perform. The agency shall comply with a request made in accordance with this paragraph.
343.305(5)(b)
(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.
343.305(5)(c)
(c) A person acting under
par. (b), the employer of any such person and any hospital where blood is withdrawn by any such person have immunity from civil or criminal liability under
s. 895.53.
343.305(5)(d)
(d) At the trial of any civil or criminal action or proceeding arising out of the acts committed by a person alleged to have been driving or operating a motor vehicle while under the influence of an intoxicant, a controlled substance, a controlled substance analog or any other drug, or under the influence of any combination of alcohol, a controlled substance, a controlled substance analog and any other drug, to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving, or having a prohibited alcohol concentration, or alleged to have been driving or operating or on duty time with respect to a commercial motor vehicle while having an alcohol concentration above 0.0 or possessing an intoxicating beverage, regardless of its alcohol content, or within 4 hours of having consumed or having been under the influence of an intoxicating beverage, regardless of its alcohol content, or of having an alcohol concentration of 0.04 or more, the results of a test administered in accordance with this section are admissible on the issue of whether the person was under the influence of an intoxicant, a controlled substance, a controlled substance analog or any other drug, or under the influence of any combination of alcohol, a controlled substance, a controlled substance analog and any other drug, to a degree which renders him or her incapable of safely driving or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving or any issue relating to the person's alcohol concentration. Test results shall be given the effect required under
s. 885.235.
343.305 Note
NOTE: Par. (d) is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
343.305(6)(a)(a) Chemical analyses of blood or urine to be considered valid under this section shall have been performed substantially according to methods approved by the laboratory of hygiene and by an individual possessing a valid permit to perform the analyses issued by the department of health and family services. The department of health and family services shall approve laboratories for the purpose of performing chemical analyses of blood or urine for alcohol, controlled substances or controlled substance analogs and shall develop and administer a program for regular monitoring of the laboratories. A list of approved laboratories shall be provided to all law enforcement agencies in the state. Urine specimens are to be collected by methods specified by the laboratory of hygiene. The laboratory of hygiene shall furnish an ample supply of urine and blood specimen containers to permit all law enforcement officers to comply with the requirements of this section.
343.305(6)(b)
(b) The department of transportation shall approve techniques or methods of performing chemical analysis of the breath and shall:
343.305(6)(b)1.
1. Approve training manuals and courses throughout the state for the training of law enforcement officers in the chemical analysis of a person's breath;
343.305(6)(b)2.
2. Certify the qualifications and competence of individuals to conduct the analysis;
343.305(6)(b)3.
3. Have trained technicians, approved by the secretary, test and certify the accuracy of the equipment to be used by law enforcement officers for chemical analysis of a person's breath under
sub. (3) (a) or
(am) before regular use of the equipment and periodically thereafter at intervals of not more than 120 days; and
343.305(6)(b)4.
4. Issue permits to individuals according to their qualifications.
343.305(6)(c)
(c) For purposes of this section, if a breath test is administered using an infrared breath-testing instrument:
343.305(6)(c)1.
1. The test shall consist of analyses in the following sequence: one adequate breath sample analysis, one calibration standard analysis, and a 2nd, adequate breath sample analysis.
343.305(6)(c)2.
2. A sample is adequate if the instrument analyzes the sample and does not indicate the sample is deficient.
343.305(6)(c)3.
3. Failure of a person to provide 2 separate, adequate breath samples in the proper sequence constitutes a refusal.
343.305(6)(d)
(d) The department of transportation may promulgate rules pertaining to the calibration and testing of preliminary breath screening test devices.
343.305(7)
(7) Chemical test; administrative suspension. 343.305(7)(a)(a) If a person submits to chemical testing administered in accordance with this section and any test results indicate a prohibited alcohol concentration, the law enforcement officer shall report the results to the department and take possession of the person's license and forward it to the department. The person's operating privilege is administratively suspended for 6 months.
343.305(7)(b)
(b) If a person who was driving or operating or on duty time with respect to a commercial motor vehicle submits to chemical testing administered in accordance with this section and any test results indicate an alcohol concentration above 0.0, the law enforcement officer may take possession of the person's license and retain the license for 24 hours. The person may reclaim a seized license in person or request return of the license by mail. The law enforcement officer shall issue a citation for violation of
s. 346.63 (7) (a) 1., issue citations for such other violations as may apply and issue an out-of-service order to the person for the 24 hours after the testing, and report both the out-of-service order and the test results to the department in the manner prescribed by the department. If the person is a nonresident, the department shall report issuance of the out-of-service order to the driver licensing agency in the person's home jurisdiction.
343.305(8)
(8) Chemical test; administrative suspension; administrative and judicial review. 343.305(8)(a)(a) The law enforcement officer shall notify the person of the administrative suspension under
sub. (7) (a). The notice shall advise the person that his or her operating privilege will be administratively suspended and that he or she has the right to obtain administrative and judicial review under this subsection. This notice of administrative suspension serves as a 30-day temporary license. An administrative suspension under
sub. (7) (a) becomes effective at the time the 30-day temporary license expires. The officer shall submit or mail a copy of the notice to the department.
343.305(8)(am)
(am) The law enforcement officer shall provide the person with a separate form for the person to use to request the administrative review under this subsection. The form shall clearly indicate how to request an administrative review and shall clearly notify the person that this form must be submitted within 10 days from the notice date indicated on the form or the person's hearing rights will be deemed waived. The form shall, in no less than 16-point boldface type, be titled: IMPORTANT NOTICE — RESPOND WITHIN TEN (10) DAYS.
343.305(8)(b)1.1. Within 10 days after the notification under
par. (a), or, if the notification is by mail, within 13 days, excluding Saturdays, Sundays and holidays, after the date of the mailing, the person may request, in writing, that the department review the administrative suspension. The review procedure is not subject to
ch. 227. The department shall hold the hearing on the matter in the county in which the offense allegedly occurred or at the nearest office of the department if the offense allegedly occurred in a county in which the department does not maintain an office. The department shall hold a hearing regarding the administrative suspension within 30 days after the date of notification under
par. (a). The person may present evidence and may be represented by counsel. The arresting officer need not appear at the administrative hearing unless subpoenaed under
s. 805.07, but he or she must submit a copy of his or her report and the results of the chemical test to the hearing examiner.
343.305(8)(b)2.
2. The administrative hearing under this paragraph is limited to the following issues:
343.305(8)(b)2.b.
b. Whether the person was informed of the options regarding tests under this section as required under
sub. (4) or under
subs. (4) and
(4m).
343.305(8)(b)2.bm.
bm. Whether the person had a prohibited alcohol concentration at the time the offense allegedly occurred.
343.305(8)(b)2.c.
c. Whether one or more tests were administered in accordance with this section.
343.305(8)(b)2.d.
d. If one or more tests were administered in accordance with this section, whether each of the test results for those tests indicate the person had a prohibited alcohol concentration.
343.305(8)(b)2.f.
f. Whether the person was driving or operating a commercial motor vehicle when the offense allegedly occurred.
343.305(8)(b)3.
3. The hearing examiner shall conduct the administrative hearing in an informal manner. No testimony given by any witness may be used in any subsequent action or proceeding. The hearing examiner may permit testimony by telephone if the site of the administrative hearing is equipped with telephone facilities to allow multiple party conversations.
343.305(8)(b)4.
4. The hearing examiner shall consider and determine the reliability of all of the evidence presented at the administrative hearing. Statements and reports of law enforcement officers are subject to the same standards of credibility applied to all other evidence presented.
343.305(8)(b)5.
5. If the hearing examiner finds that the criteria for administrative suspension have not been satisfied or that the person did not have a prohibited alcohol concentration at the time the offense allegedly occurred, the examiner shall order that the administrative suspension of the person's operating privilege be rescinded without payment of the fee under
s. 343.21 (1) (j). If the hearing examiner finds that the criteria for administrative suspension have been satisfied and that the person had a prohibited alcohol concentration at the time the offense allegedly occurred, the administrative suspension shall continue regardless of the type of vehicle driven or operated at the time of the violation. The hearing examiner shall notify the person in writing of the hearing decision, of the right to judicial review and of the court's authority to issue a stay of the suspension under
par. (c). The administrative suspension is vacated and the person's operating privilege shall be automatically reinstated under
s. 343.39 if the hearing examiner fails to mail this notice to the person within 30 days after the date of the notification under
par. (a).
343.305(8)(c)1.1. An individual aggrieved by the determination of the hearing examiner may have the determination reviewed by the court hearing the action relating to the applicable violation listed under
sub. (3) (a) or
(am). If the individual seeks judicial review, he or she must file the request for judicial review with the court within 20 days of the issuance of the hearing examiner's decision. The court shall send a copy of that request to the department. The judicial review shall be conducted at the time of the trial of the underlying offense under
s. 346.63. The prosecutor of the underlying offense shall represent the interests of the department.
343.305(8)(c)2.
2. The court shall order that the administrative suspension be either rescinded or sustained and forward its order to the department. The department shall vacate the administrative suspension under
sub. (7) unless, within 60 days of the date of the request for judicial review of the administrative hearing decision, the department has been notified of the result of the judicial review or of an order of the court entering a stay of the hearing examiner's order continuing the suspension.
343.305(8)(c)3.
3. Any party aggrieved by the order of a circuit court under
subd. 2. may appeal to the court of appeals. Any party aggrieved by the order of a municipal court under subd. 2 may appeal to the circuit court for the county where the offense allegedly occurred.
343.305(8)(c)4.
4. A request for judicial review under this subsection does not stay any administrative suspension order.
343.305(8)(c)5.
5. If any court orders under this subsection that the administrative suspension of the person's operating privilege be rescinded, the person need not pay the fee under
s. 343.21 (1) (j).
343.305(8)(d)
(d) A person who has his or her operating privilege administratively suspended under this subsection is eligible for an occupational license under
s. 343.10 at any time.
343.305(9)
(9) Refusals; notice and court hearing. 343.305(9)(a)(a) If a person refuses to take a test under
sub. (3) (a), the law enforcement officer shall immediately take possession of the person's license and prepare a notice of intent to revoke, by court order under
sub. (10), the person's operating privilege. If the person was driving or operating a commercial motor vehicle, the officer shall issue an out-of-service order to the person for the 24 hours after the refusal and notify the department in the manner prescribed by the department. The officer shall issue a copy of the notice of intent to revoke the privilege to the person and submit or mail a copy with the person's license to the circuit court for the county in which the refusal is made. The officer shall also mail a copy of the notice of intent to revoke to the district attorney for that county and the department. The notice of intent to revoke the person's operating privilege shall contain substantially all of the following information:
343.305(9)(a)4.
4. That the person may request a hearing on the revocation within 10 days by mailing or delivering a written request to the court whose address is specified in the notice. If no request for a hearing is received within the 10-day period, the revocation period commences 30 days after the notice is issued.
343.305(9)(a)5.a.
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 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 (2) or
(6),
940.09 (1) or
940.25.
343.305(9)(a)5.c.
c. Whether the person refused to permit the test. The person shall not be considered to have refused the test if it is shown by a preponderance of evidence that the refusal was due to a physical inability to submit to the test due to a physical disability or disease unrelated to the use of alcohol, controlled substances, controlled substance analogs or other drugs.
343.305(9)(a)6.
6. That, if it is determined that the person refused the test, there will be an order for the person to comply with assessment and a driver safety plan.
343.305(9)(am)
(am) If a person driving or operating or on duty time with respect to a commercial motor vehicle refuses a test under
sub. (3) (am), the law enforcement officer shall immediately take possession of the person's license, issue an out-of-service order to the person for the 24 hours after the refusal and notify the department in the manner prescribed by the department, and prepare a notice of intent to revoke, by court order under
sub. (10), the person's operating privilege. The officer shall issue a copy of the notice of intent to revoke the privilege to the person and submit or mail a copy with the person's license to the circuit court for the county in which the refusal is made. The officer shall also mail a copy of the notice of intent to revoke to the district attorney for that county and the department. The notice of intent to revoke the person's operating privilege shall contain substantially all of the following information:
343.305(9)(am)1.
1. That the officer has issued an out-of-service order to the person for the 24 hours after the refusal, specifying the date and time of issuance.
343.305(9)(am)4.
4. That the person may request a hearing on the revocation within 10 days by mailing or delivering a written request to the court whose address is specified in the notice. If no request for a hearing is received within the 10-day period, the revocation period commences 30 days after the notice is issued.
343.305(9)(am)5.a.
a. Whether the officer detected any presence of alcohol, controlled substance, controlled substance analog or other drug, or a combination thereof, on the person or had reason to believe that the person was violating or had violated
s. 346.63 (7).
343.305(9)(am)5.c.
c. Whether the person refused to permit the test. The person shall not be considered to have refused the test if it is shown by a preponderance of evidence that the refusal was due to a physical inability to submit to the test due to a physical disability or disease unrelated to the use of alcohol, controlled substances, controlled substance analogs or other drugs.
343.305(9)(am)6.
6. That if it is determined that the person refused the test there will be an order for the person to comply with assessment and a driver safety plan.
343.305(9)(b)
(b) The use of the notice under
par. (a) or
(am) by a law enforcement officer in connection with the enforcement of this section is adequate process to give the appropriate court jurisdiction over the person.
343.305(9)(c)
(c) If a law enforcement officer informs the circuit court that a person has refused to submit to a test under
sub. (3) (a) or
(am), the court shall be prepared to hold any requested hearing to determine if the refusal was proper. The scope of the hearing shall be limited to the issues outlined in
par. (a) 5. or
(am) 5. Section 967.055 applies to any hearing under this subsection.
343.305(9)(d)
(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,
s. 346.63 (2) or
(6),
940.09 (1) or
940.25.
343.305(10)(a)(a) If the court determines under
sub. (9) (d) that a person improperly refused to take a test or if the person does not request a hearing within 10 days after the person has been served with the notice of intent to revoke the person's operating privilege, the court shall proceed under this subsection. If no hearing was requested, the revocation period shall begin 30 days after the date of the refusal. If a hearing was requested, the revocation period shall commence 30 days after the date of refusal or immediately upon a final determination that the refusal was improper, whichever is later.
343.305(10)(b)1.1. The court shall revoke the person's operating privilege under this paragraph according to the number of previous suspensions, revocations or convictions that would be counted under
s. 343.307 (2). Suspensions, revocations and convictions arising out of the same incident shall be counted as one. If a person has a conviction, suspension or revocation for any offense that is counted under
s. 343.307 (2), that conviction, suspension or revocation shall count as a prior conviction, suspension or revocation under this subdivision.
343.305(10)(b)2.
2. Except as provided in
subd. 3.,
4. or
4m., for the first improper refusal, the court shall revoke the person's operating privilege for one year. After the first 30 days of the revocation period, the person is eligible for an occupational license under
s. 343.10.
343.305(10)(b)3.
3. Except as provided in
subd. 4m., if the number of convictions, suspensions and revocations in a 5-year period equals 2, the court shall revoke the person's operating privilege for 2 years. After the first 90 days of the revocation period, the person is eligible for an occupational license under
s. 343.10 if he or she has completed the assessment and is complying with the driver safety plan.
343.305(10)(b)4.
4. Except as provided in
subd. 4m., if the number of convictions, suspensions and revocations in a 10-year period equals 3 or more, the court shall revoke the person's operating privilege for 3 years. After the first 120 days of the revocation period, the person is eligible for an occupational license under
s. 343.10 if he or she has completed the assessment and is complying with the driver safety plan.
