346.595(4)
(4) No passenger shall ride in front of the operator on a motorcycle.
346.595(5)
(5) The headlamps on motorcycles shall be lighted whenever the motorcycle is in operation. Motorcycles may be operated to the nearest repair facility for headlamp repair in the event of mechanical or electrical headlamp failure except during hours of darkness. Mopeds shall observe the requirements for lighted headlamps and tail lamps under
s. 347.06.
346.595(6)
(6) On any road for which the speed limit is more than 25 miles per hour, mopeds shall be operated only when riding single-file in the extreme right-hand lane. No person may operate a moped on any restricted access highway.
346.595 Annotation
The provision requiring headlamps to be lighted is constitutional. Kenosha v. Dosemagen, 54 W (2d) 269, 195 NW (2d) 462.
346.60
346.60
Penalty for violating sections 346.57 to 346.595. 346.60(1)(1) Except as provided in
sub. (5), any person violating
s. 346.59 may be required to forfeit not less than $20 nor more than $40 for the first offense and not less than $50 nor more than $100 for the 2nd or subsequent conviction within a year.
346.60(3)
(3) Except as provided in
sub. (3m) or
(5), any person violating
s. 346.57 (2),
(3) or
(4) (a) to
(c) may be required to forfeit not less than $40 nor more than $300 for the first offense and may be required to forfeit not less than $80 nor more than $600 for the 2nd or subsequent conviction within a year.
346.60(3m)
(3m) If an operator of a vehicle violates
s. 346.57 (2),
(3) ,
(4) (d) to
(h) or
(5) where persons engaged in work in a highway maintenance or construction area are at risk from traffic, any applicable minimum and maximum forfeiture specified in
sub. (2) or
(3) for the violation shall be doubled.
346.60(4)
(4) Any person violating
s. 346.595 may be required to forfeit not less than $30 nor more than $300.
346.60(5)(a)(a) Any operator of a bicycle who violates
s. 346.57 may be required to forfeit not more than $20.
346.60(5)(b)
(b) Any operator of a bicycle who violates
s. 346.59 may be required to forfeit not more than $10.
346.60 Annotation
Sub. (4) is not unconstitutionally irrational. State v. King, 187 W (2d) 547, 523 NW (2d) 159 (Ct. App. 1994).
RECKLESS AND DRUNKEN DRIVING
346.61
346.61
Applicability of sections relating to reckless and drunken driving. In addition to being applicable upon highways,
ss. 346.62 to
346.64 are applicable upon all premises held out to the public for use of their motor vehicles, all premises provided by employers to employes for the use of their motor vehicles and all premises provided to tenants of rental housing in buildings of 4 or more units for the use of their motor vehicles, whether such premises are publicly or privately owned and whether or not a fee is charged for the use thereof.
Sections 346.62 to
346.64 do not apply to private parking areas at farms or single-family residences.
346.61 History
History: 1995 a. 127.
346.61 Annotation
Privately owned parking lot was not included under this section. City of Kenosha v. Phillips, 142 W (2d) 549, 419 NW (2d) 236 (1988).
346.61 Annotation
A parking lot for patrons of a business is held out for the use of the public under this section. City of LaCrosse v. Richling, 178 W (2d) 856, 505 NW (2d) 448 (Ct. App. 1993).
346.62
346.62
Reckless driving. 346.62(2)
(2) No person may endanger the safety of any person or property by the negligent operation of a vehicle.
346.62(3)
(3) No person may cause bodily harm to another by the negligent operation of a vehicle.
346.62(4)
(4) No person may cause great bodily harm to another by the negligent operation of a vehicle.
346.62 History
History: 1987 a. 399.
346.62 Note
Judicial Council Note, 1988: The revisions contained in subs. (2) and (3) are intended as editorial, not substantive, as is the substitution of a cross-reference to s. 939.25 (2) for the prior definition of a high degree of negligence. New sub. (4) carries forward the crime created by
1985 Wisconsin Act 293. [Bill 191-S]
346.62 Annotation
The fact that defendant was an experienced stock car driver is not a defense to a charge of reckless driving. State v. Passarelli, 55 W (2d) 78, 197 NW (2d) 740.
346.62 Annotation
Sub. (4) is not unconstitutionally irrational. State v. King, 187 W (2d) 547, 523 NW (2d) 159 (Ct. App. 1994).
346.63
346.63
Operating under influence of intoxicant or other drug. 346.63(1)(1) No person may drive or operate a motor vehicle while:
346.63(1)(a)
(a) Under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, a controlled substance and a controlled substance analog, under the influence of 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
346.63(1)(b)
(b) The person has a prohibited alcohol concentration.
346.63(1)(c)
(c) A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of
par. (a) or
(b) or both for acts arising out of the same incident or occurrence. If the person is charged with violating both
pars. (a) and
(b), the offenses shall be joined. If the person is found guilty of both
pars. (a) and
(b) for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under
ss. 343.30 (1q) and
343.305.
Paragraphs (a) and
(b) each require proof of a fact for conviction which the other does not require.
346.63(2)(a)(a) It is unlawful for any person to cause injury to another person by the operation of a vehicle while:
346.63(2)(a)1.
1. Under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, a controlled substance and a controlled substance analog, under the influence of 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
346.63(2)(a)3.
3. A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of
subd. 1. or
2. or both for acts arising out of the same incident or occurrence. If the person is charged with violating both
subds. 1. and
2. in the complaint, the crimes shall be joined under
s. 971.12. If the person is found guilty of both
subds. 1. and
2. for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under
ss. 343.30 (1q) and
343.305.
Subdivisions 1. and
2. each require proof of a fact for conviction which the other does not require.
346.63(2)(b)
(b) In an action under this subsection, the defendant has a defense if he or she proves by a preponderance of the evidence that the injury would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant, a controlled substance, a controlled substance analog or a combination thereof, under the influence of 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 did not have a prohibited alcohol concentration described under
par. (a) 2.
346.63 Note
NOTE: Par. (b) is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
346.63(2m)
(2m) If a person has not attained the age of 19, the person may not drive or operate a motor vehicle while he or she has an alcohol concentration of more than 0.0 but not more than 0.1. One penalty for violation of this subsection is suspension of a person's operating privilege under
s. 343.30 (1p). The person is eligible for an occupational license under
s. 343.10 at any time. If a person arrested for a violation of this subsection refuses to take a test under
s. 343.305, the refusal is a separate violation and the person is subject to revocation of the person's operating privilege under
s. 343.305 (10) (em).
346.63(3)(a)
(a) "Drive" means the exercise of physical control over the speed and direction of a motor vehicle while it is in motion.
346.63(3)(b)
(b) "Operate" means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.
346.63(4)
(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).
346.63(5)(a)(a) No person may drive or operate a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.1.
346.63(5)(b)
(b) A person may be charged with and a prosecutor may proceed upon a complaint based on a violation of
par. (a) or
sub. (1) (a) or both for acts arising out of the same incident or occurrence. If the person is charged with violating both
par. (a) and
sub. (1) (a), the offenses shall be joined.
Paragraph (a) and
sub. (1) (a) each require proof of a fact for conviction which the other does not require. If the person is found guilty of violating both
par. (a) and
sub. (1) (a) for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions. Each conviction shall be reported to the department and counted separately for purposes of suspension or revocation of the operator's license and disqualification.
346.63(6)(a)(a) No person may cause injury to another person by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.1.
346.63(6)(b)
(b) A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of
par. (a) or
sub. (2) (a) 1. or both for acts arising out of the same incident or occurrence. If the person is charged with violating both
par. (a) and
sub. (2) (a) 1. in the complaint, the crimes shall be joined under
s. 971.12. If the person is found guilty of violating both
par. (a) and
sub. (2) (a) 1. for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions.
Paragraph (a) and
sub. (2) (a) 1. each require proof of a fact for conviction which the other does not require.
346.63(6)(c)
(c) Under
par. (a), the person charged has a defense if it appears by a preponderance of the evidence that the injury would have occurred even if he or she had not been under the influence of an intoxicant, a controlled substance, a controlled substance analog or a combination thereof, under the influence of 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 did not have an alcohol concentration described under
par. (a).
346.63(7)(a)(a) No person may drive or operate or be on duty time with respect to a commercial motor vehicle under any of the following circumstances:
346.63(7)(a)2.
2. Within 4 hours of having consumed or having been under the influence of an intoxicating beverage, regardless of its alcohol content.
346.63(7)(a)3.
3. While possessing an intoxicating beverage, regardless of its alcohol content. This subdivision does not apply to possession of an intoxicating beverage if the beverage is unopened and is manifested and transported as part of a shipment.
346.63(7)(b)
(b) A person may be charged with and a prosecutor may proceed upon complaints based on a violation of this subsection and
sub. (1) (a) or
(b) or both, or
sub. (1) (a) or
(5) (a), or both, for acts arising out of the same incident or occurrence. If the person is charged with violating this subsection and
sub. (1) or
(5), the proceedings shall be joined. If the person is found guilty of violating both this subsection and
sub. (1) or
(5) for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions. This subsection and
subs. (1) and
(5) each require proof of a fact for conviction which the others do not require. Each conviction shall be reported to the department and counted separately for purposes of suspension or revocation of the operator's license and disqualification.
346.63 Annotation
It is no defense that defendant is an alcoholic. State v. Koller, 60 W (2d) 755.
346.63 Annotation
Evidence that defendant, found asleep in parked car at 12:53 a.m., had driven to the parking place 14 minutes earlier, was sufficient to support conviction for operating a car while intoxicated "at or about 12:53 a.m." Monroe County v. Kruse, 76 W (2d) 126, 250 NW (2d) 375.
346.63 Annotation
Intent to drive or move motor vehicle is not required to find accused guilty of operating vehicle while under influence of intoxicant. Milwaukee County v. Proegler, 95 W (2d) 614, 291 NW (2d) 608 (Ct. App. 1980).
346.63 Annotation
Section 346.63 (4), 1979 stats., does not prevent state from introducing corroborating evidence. State v. Burkman, 96 W (2d) 630, 292 NW (2d) 641 (1980).
346.63 Annotation
First violation of ss. 346.63 (1), 1979 stats., is not a criminal offense. State v. Schulz, 100 W (2d) 329, 302 NW (2d) 59 (Ct. App. 1981).
346.63 Annotation
Court properly instructed jury that it could infer from a breathalyzer reading of .13% that defendant was intoxicated. Alcohol absorption rate discussed. State v. Vick, 104 W (2d) 678, 312 NW (2d) 489 (1981).
346.63 Annotation
Previous conviction for drunk driving is penalty enhancer, not element of crime. State v. McAllister, 107 W (2d) 532, 319 NW (2d) 865 (1982).
346.63 Annotation
See note to Art. I, sec. 8, citing State v. Haefer, 110 W (2d) 381, 328 NW (2d) 894 (Ct. App. 1982).
346.63 Annotation
Sub. (1) (b) is not unconstitutionally vague. State v. Muehlenberg, 118 W (2d) 502, 347 NW (2d) 914 (Ct. App. 1984).
346.63 Annotation
See note to 904.03, citing State v. Hinz, 121 W (2d) 282, 360 NW (2d) 56 (Ct. App. 1984).
346.63 Annotation
See note to 939.22, citing State v. Waalen, 130 W (2d) 18, 386 NW (2d) 47 (1986).
346.63 Annotation
Sub. (1) (b) establishes per se rule that it is violation to operate motor vehicle with specified breath alcohol content, regardless of individual's "partition ratio"; provision is constitutional. State v. McManus, 152 W (2d) 113, 447 NW (2d) 654 (1989).
346.63 Annotation
First offender OMVWI prosecution is civil, and jeopardy does not attach to prevent subsequent criminal prosecution. State v. Lawton, 167 W (2d) 461, 482 NW (2d) 142 (Ct. App. 1992).
346.63 Annotation
Because there is no privilege under 904.05 (4) (f) for chemical tests for intoxication, results of test taken for diagnostic purposes are admissible in OMVWI trial without patient approval. City of Muskego v. Godec, 167 W (2d) 536, 482 NW (2d) 79 (1992).
346.63 Annotation
See note to Art. I, sec. 11 citing State v. Krause, 168 W (2d) 578, 484 NW (2d) 347 (Ct. App. 1992).
346.63 Annotation
Dissipation of alcohol in the bloodstream constitutes a sufficient exigency to justify a warrantless blood draw when made at an officer's direction following an arrest for OWI. State v. Bohling, 173 W (2d) 529, 494 NW (2d) 399 (1993).
346.63 Annotation
Where municipal court found defendant guilty of OWI and dismissed a blood alcohol count charge without finding guilt, the defendant's appeal of the OWI conviction under s. 800.14 (1) did not give the circuit court jurisdiction to here the BAC charge absent an appeal of the dismissal. Town of Menasha v. Bastian, 178 W (2d) 191, 503 NW (2d) 382 (Ct. App. 1993).
346.63 Annotation
Two or more prior convictions are an element of sub. (1) (b), and evidence must be presented to prove the same regardless of the potential prejudice arising from evidence of prior convictions. State v. Ludeking, 195 W (2d) 132, 536 NW (2d) 392 (Ct. App. 1995).
346.63 Annotation
Criminal prosecution for operating a motor vehicle with a prohibited blood alcohol content subsequent to administrative suspension of a driver's operating privileges does not constitute multiple punishment and therefore does not constitute double jeopardy. State v. McMaster, 198 W (2d) 542, 543 NW (2d) 499 (Ct. App. 1995).
346.63 Annotation
Upon conviction for drunk driving, probation may be granted only pursuant to 972.13 (2) and 973.09. 60 Atty. Gen. 271.
346.63 Annotation
First offense violations of (1) (a) are assimilated under federal Assimilative Crimes Act when committed on federal enclave. U.S. v. Manning, 700 F Supp. 1001 (W.D. Wis. 1988).
