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 The court shall order that the administrative suspension be either rescinded or sustained and forward its order to the department.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 If any court orders under this subsection that the administrative suspension of the person's operating privilege be rescinded, the person need not pay the fee under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.
343.305(10)(b)4m.
4m. If there was a minor passenger under 16 years of age in the motor vehicle at the time of the incident that gave rise to the improper refusal, the applicable minimum and maximum revocation periods under
subd. 2.,
3. or
4. for the improper refusal are doubled.
343.305(10)(b)5.
5. The 5-year or 10-year period under this paragraph shall be measured from the dates of the refusals or violations which resulted in revocations or convictions.
343.305(10)(c)1.1. Except as provided in
subd. 1. a. or
b., 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 person and the department of transportation of the assessment order. The court shall also notify the person that noncompliance with assessment or the driver safety plan will result in license suspension until the person is in compliance. The assessment order shall:
343.305(10)(c)1.a.
a. If the person is a resident, refer the person to an approved public treatment facility in the county in which the person resides. The facility named in the order may provide for assessment of the person in another approved public treatment facility. The order shall provide that if the person is temporarily residing in another state, the facility named in the order may refer the person to an appropriate treatment facility in that state for assessment and development of a driver safety plan for the person satisfying the requirements of that state.
343.305(10)(c)1.b.
b. If the person is a nonresident, refer the person to an approved public treatment facility in this state. The order shall provide that the facility named in the order may refer the person to an appropriate treatment facility in the state in which the person resides for assessment and development of a driver safety plan for the person satisfying the requirements of that state.
343.305(10)(c)1.c.
c. Require a person who is referred to a treatment facility in another state under
subd. 1. a. or
b. to furnish the department written verification of his or her compliance from the agency which administers the assessment and driver safety plan program. The person shall provide initial verification of compliance within 60 days after the date of his or her conviction. The requirement to furnish verification of compliance may be satisfied by receipt by the department of such verification from the agency which administers the assessment and driver safety plan program.
343.305(10)(c)2.
2. The department of health and family services shall establish standards for assessment procedures and the driver safety plan programs by rule. The department of health and family services shall establish by rule conflict of interest guidelines for providers.
343.305(10)(c)3.
3. Prior to developing a plan which specifies treatment, the facility shall make a finding that treatment is necessary and appropriate services are available. The facility shall submit a report of the assessment and the driver safety plan within 14 days to the county department under
s. 51.42, the plan provider, the department of transportation and the person, except that upon request by the facility and the person, the county department may extend the period for assessment for not more than 20 additional workdays. The county department shall notify the department of transportation regarding any such extension.
343.305(10)(d)
(d) The assessment report shall order compliance with a driver safety plan. The report shall inform the person of the fee provisions under
s. 46.03 (18) (f). The driver safety plan may include a component that makes the person aware of the effect of his or her offense on a victim and a victim's family. The driver safety plan may include treatment for the person's misuse, abuse or dependence on alcohol, controlled substances or controlled substance analogs, attendance at a school under
s. 345.60, or both. If the plan requires inpatient treatment, the treatment shall not exceed 30 days. A driver safety plan under this paragraph shall include a termination date consistent with the plan which shall not extend beyond one year. The county department under
s. 51.42 shall assure notification of the department of transportation and the person of the person's compliance or noncompliance with assessment and treatment. The school under
s. 345.60 shall notify the department, the county department under
s. 51.42 and the person of the person's compliance or noncompliance with the requirements of the school. Nonpayment of the assessment fee or, if the person has the ability to pay, nonpayment of the driver safety plan fee is noncompliance with the court order. If the department is notified of noncompliance, it shall suspend the person's operating privilege until the county department under
s. 51.42 or the school under
s. 345.60 notifies the department that the person is in compliance with assessment or the driver safety plan. The department shall notify the person of the suspension, the reason for the suspension and the person's right to a review. A person may request a review of a suspension based upon failure to comply with a driver safety plan within 10 days of notification. The review shall be handled by the subunit of the department of transportation designated by the secretary. The issues at the review are limited to whether the driver safety plan, if challenged, is appropriate and whether the person is in compliance with the assessment order or the driver safety plan. The review shall be conducted within 10 days after a request is received. If the driver safety plan is determined to be inappropriate, the department shall order a reassessment and if the person is otherwise eligible, the department shall reinstate the person's operating privilege. If the person is determined to be in compliance with the assessment or driver safety plan, and if the person is otherwise eligible, the department shall reinstate the person's operating privilege. If there is no decision within the 10-day period, the department shall issue an order reinstating the person's operating privilege until the review is completed, unless the delay is at the request of the person seeking the review.
343.305(10)(e)
(e) Notwithstanding
par. (c), if the court finds that the person is already covered by an assessment or is participating in a driver safety plan or has had evidence presented to it by a county department under
s. 51.42 that the person has recently completed assessment, a driver safety plan or both, the court is not required to make an order under
par. (c). This paragraph does not prohibit the court from making an order under
par. (c), if it deems such an order advisable.
343.305(10)(em)
(em) One penalty for improperly refusing to submit to a test for intoxication regarding a person arrested for a violation of
s. 346.63 (2m) or
(7) or a local ordinance in conformity therewith is revocation of the person's operating privilege for 6 months. If there was a minor passenger under 16 years of age in the motor vehicle at the time of the incident that gave rise to the improper refusal, the revocation period is 12 months. After the first 15 days of the revocation period, the person is eligible for an occupational license under
s. 343.10. Any such improper refusal or revocation for the refusal does not count as a prior refusal or a prior revocation under this section or
ss. 343.30 (1q),
343.307 and
346.65 (2). The person shall not be required to submit to and comply with any assessment or driver safety plan under
pars. (c) and
(d).
343.305 Note
NOTE: Par. (em) 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(10)(f)
(f) The department may make any order which the court is authorized or required to make under this subsection if the court fails to do so.
343.305(10)(g)
(g) The court or department shall provide that the period of suspension or revocation imposed under this subsection or under
sub. (7) shall be reduced by any period of suspension or revocation previously served under
s. 343.30 (1p) or
(1q) if both suspensions or revocations arose out of the same incident or occurrence. The court or department shall order that the period of suspension or revocation imposed under this subsection or
sub. (7) run concurrently with any time remaining on a suspension or revocation imposed under
s. 343.30 (1p) or
(1q) arising out of the same incident or occurrence.
343.305(10m)
(10m) Refusals; seizure, immobilization or ignition interlock of a motor vehicle. If the person whose operating privilege is revoked under
sub. (10) has 2 or more prior convictions, suspensions or revocations, as counted under
s. 343.307 (1), within a 10-year period, the procedure under
s. 346.65 (6) shall be followed regarding the immobilization or seizure and forfeiture of a motor vehicle owned by the person or the equipping of a motor vehicle owned by the person with an ignition interlock device.
343.305(11)
(11) Rules. The department shall promulgate rules under
ch. 227 necessary to administer this section. The rules shall include provisions relating to the expeditious exchange of information under this section between the department and law enforcement agencies, circuit courts and district attorneys. The rules may not affect any provisions relating to court procedure.
343.305 History
History: 1987 a. 3,
27,
399;
1989 a. 7,
31,
56,
105,
359;
1991 a. 39,
251,
277;
1993 a. 16,
105,
315,
317,
491;
1995 a. 27 ss.
6412cnL,
9126 (19);
1995 a. 113,
269,
425,
426,
436,
448; s. 13.93 (2) (c).
343.305 Annotation
See note to Art. I, sec. 8, citing State v. Driver, 59 W (2d) 35, 207 NW (2d) 850.
343.305 Annotation
The implied consent law must be liberally construed to effectuate its policies, since it was intended to facilitate the taking of tests for intoxication and not to inhibit the ability of the state to remove drunken drivers from the highway. Scales v. State, 64 W (2d) 485, 219 NW (2d) 286.
343.305 Annotation
Miranda warnings are not required when an arrested driver is asked to submit to a test for intoxication under the implied consent statute. State v. Bunders, 68 W (2d) 129, 227 NW (2d) 727.
343.305 Annotation
Neither ss. 885.235 (1) nor 946.75 affords driver right to counsel prior to submitting to intoxication test. Driver is obliged to take test promptly or to refuse it promptly. State v. Neitzel, 95 W (2d) 191, 289 NW (2d) 828 (1980).
343.305 Annotation
State need not prove that notices were sent to state officers under sub. (3) (b), 1985 stats. [now sub. (9) (a)]. State v. Polinski, 96 W (2d) 43, 291 NW (2d) 465 (1980).
343.305 Annotation
Where driver consented to officer's request to test breath, but officer decided to test urine instead, driver's refusal to test urine justified revocation of driver's license. State v. Pawlow, 98 W (2d) 703, 298 NW (2d) 220 (Ct. App. 1980).
343.305 Annotation
State need not affirmatively prove compliance with administrative code procedures as foundation for admission of breathalyzer test. City of New Berlin v. Wertz, 105 W (2d) 670, 314 NW (2d) 911 (Ct. App. 1981).
343.305 Annotation
Where driver pled guilty to underlying OWI charge, charge of refusing test under s. 343.305, 1979 stats., was properly dismissed as unnecessary. State v. Brooks, 113 W (2d) 347, 335 NW (2d) 354 (1983).
343.305 Annotation
Breathalyzer approved in administrative code has prima facie presumption of accuracy. State v. Dwinell, 119 W (2d) 305, 349 NW (2d) 739 (Ct. App. 1984).
343.305 Annotation
See note to s. 345.421, citing State v. Ehlen, 119 W (2d) 451, 351 NW (2d) 503 (1984).
343.305 Annotation
Judge's erroneous exclusion of defendant's explanation for refusal to test blood was not harmless error. State v. Bolstad, 124 W (2d) 576, 370 NW (2d) 257 (1985).
343.305 Annotation
At revocation hearing under sub. (3) (b) 5., 1985 stats. [now sub. (9) (a) 5.], state need not establish to reasonable certainty that defendant was actual driver of vehicle stopped by police. Probable cause standard satisfies due process. State v. Nordness, 128 W (2d) 15, 381 NW (2d) 300 (1986).
343.305 Annotation
Phrase in sub. (2) (c), 1985 stats. [now sub. (3) (b)], "not capable of withdrawing consent," must be construed narrowly and applied infrequently. State v. Disch, 129 W (2d) 225, 385 NW (2d) 140 (1986).
343.305 Annotation
Under facts of case, state's refusal to provide alternative blood alcohol test did not violate due process. State v. McCrossen, 129 W (2d) 277, 385 NW (2d) 161 (1986).
343.305 Annotation
Arresting officer need not inform accused that test refusal could be used against accused at trial. State v. Crandall, 133 W (2d) 251, 394 NW (2d) 905 (1986).
343.305 Annotation
Mental disorder cannot justify test refusal unless severe enough that driver is deemed under sub. (3) (b) not to have refused at all. State v. Hagaman, 133 W (2d) 381, 395 NW (2d) 617 (Ct. App. 1986).
343.305 Annotation
Implied consent law does not prevent state from obtaining chemical test evidence by alternative constitutional means. State v. Zielke, 137 W (2d) 39, 403 NW (2d) 427 (1987).
343.305 Annotation
Under sub. (4) (c) accused must be informed of possible penalties, including possible fine, jail sentence and suspension or revocation of operating privileges. County of Eau Claire v. Resler, 151 W (2d) 645, 446 NW (2d) 72 (Ct. App. 1989).
343.305 Annotation
Sub. (4) (c) does not conflict with sub. (8) (b) 2. d.; sub. (4) requires that accused be informed of ramifications of any test result of 0.1% or more, not of each one. Whether each test results in threshold BAC can only be challenged at administrative hearing. Any result over 0.1% will cause immediate suspension, but department may consider each result in determining whether suspension continues. City of Mequon v. Hess, 158 W (2d) 500, 463 NW (2d) 687 (Ct. App. 1990).
343.305 Annotation
Appeal of oral revocation order under sub. (10) may not be taken under s. 808.03 (1). State v. Borowski, 164 W (2d) 730, 476 NW (2d) 316 (Ct. App. 1991).
343.305 Annotation
Evidence of refusal not admissible where defendant not fully informed of consequences in accordance with sub. (4). State v. Algaier, 165 W (2d) 515, 478 NW (2d) 292 (Ct. App. 1991).
343.305 Annotation
Substantial compliance with requirements of (4) where defendant was actually informed of all rights and penalties relating to him was sufficient. State v. Piskula, 168 W (2d) 135, 483 NW (2d) 250 (Ct. App. 1992). See also Village of Oregon v. Bryant, 188 W (2d) 680, 524 NW (2d) 635 (1994).
343.305 Annotation
Sub. (9) (a) requirement that a notice of intent to revoke shall be prepared and served immediately is directory and not mandatory. State v. Moline, 170 W (2d) 531, 489 NW (2d) 667 (Ct. App. 1992).
343.305 Annotation
An accused's request under sub. (5) (a) for his or her own test only requires the arresting agency to make the accused available to obtain the test, not to take an active part in obtaining the test. State v. Vincent, 171 W (2d) 124, 490 NW (2d) 761 (Ct. App. 1992).
343.305 Annotation
Where officer knows the defendant was licensed as a commercial operator and the ensuing revocation revokes all operating privileges, the commercial operator warnings, under sub. (4), must be given. State v. Geraldson, 176 W (2d) 487, 500 NW (2d) 415 (Ct. App. 1993).
343.305 Annotation
Sub. (9) (a) 1. does not require the issuance of a citation before a request is made that the defendant submit to a chemical test. State v. Sutton, 177 W (2d) 709, 503 NW (2d) 326 (Ct. App. 1993).
343.305 Annotation
Overstatement of the potential penalties for refusal to submit to a chemical test is substantial compliance with sub. (4) and not grounds for reversing a revocation for refusal. State v. Sutton, 177 W (2d) 709, 503 NW (2d) 326 (Ct. App. 1993).
343.305 Annotation
There is no error in informing a driver of all warnings under sub. (4), including those applying to only commercial operators and those applying to only noncommercial operators, regardless of the driver's status. Village of Elm Grove v. Landowski, 181 W (2d) 137, 510 NW (2d) 752 (Ct. App. 1993).
343.305 Annotation
Sub. (5) (b) requires a person drawing blood "under the direction of a physician" to have general authorization from the physician rather than a specific order in each case. State v. Penzkofer, 184 W (2d) 262, 516 NW (2d) 774 (Ct. App. 1994).
343.305 Annotation
The state's burden of persuasion at a suppression hearing is significantly greater than at a refusal hearing; consequently a defendant is not precluded from relitigating the issue of probable cause at a suppression hearing. State v. Wille, 185 W (2d) 673 518 NW (2d) 325 (Ct. App. 1994).
343.305 Annotation
Once a suspect has refused a second alternate blood alcohol test, there is no continuing obligation to accommodate future requests for an alternate test. State v. Stary, 187 W (2d) 266, 522 NW (2d) 32 (Ct. App. 1994).
343.305 Annotation
Refusal to submit to a field sobriety test was properly admitted as evidence to determine probable cause for arrest for intoxicated operation of a motor vehicle. State v. Babbit, 188 W (2d) 349, 525 NW (2d) 102 (Ct. App. 1994).
343.305 Annotation
A suspect must be properly informed under the implied consent law before evidence of a refusal may be admitted at a subsequent trial, but the state is not prevented from using the evidence if a revocation hearing is not held. State v. Donner, 192 W (2d) 305, 531 NW (2d) 369 (Ct. App. 1995).
