CHAPTER 351
HABITUAL TRAFFIC OFFENDERS
351.01 Declaration of intent.
351.027 Hearing on revocations.
351.03 Secretary to certify copy of conviction record.
351.04 District attorney or attorney general to represent secretary.
351.05 Habitual traffic offender or repeat habitual traffic offender determination by the court.
351.07 Occupational license; conviction after issuance.
351.08 Operation of motor vehicle by habitual traffic offender or repeat habitual traffic offender prohibited; penalty; enforcement.
351.09 Recalculation of habitual traffic offender status.
351.11 Application of chapter.
351.01
351.01
Declaration of intent. The legislature intends by enacting this chapter:
351.01(1)
(1) To provide maximum safety for all users of the highways of this state.
351.01(2)
(2) To deny the privilege of operating motor vehicles to persons who by their conduct and record have demonstrated their indifference for the safety and welfare of others and their disrespect for the laws, courts and administrative agencies of this state.
351.01(3)
(3) To discourage repetition of traffic violations by individuals against the peace and dignity of this state and its political subdivisions and to impose increased and added deprivation of the privilege to operate motor vehicles upon habitual traffic offenders who have been convicted repeatedly of traffic law violations.
351.01 History
History: 1979 c. 333.
351.01 Annotation
Ch. 351, 1983 stats., is constitutional. Court is permitted no discretion in administration of this chapter. State v. Strassburg, 120 W (2d) 30, 352 NW (2d) 215 (Ct. App. 1984).
351.01 Annotation
State's failure to warn defendant that pleading guilty to criminal traffic offenses would result in revocation under ch. 351, 1983 stats., did not void conviction. State v. Madison, 120 W (2d) 150, 353 NW (2d) 835 (Ct. App. 1984).
351.02
351.02
Definitions. In this chapter:
351.02(1)
(1) "Habitual traffic offender" means any person, resident or nonresident, whose record, as maintained by the department shows that the person has accumulated the number of convictions for the separate and distinct offenses, regardless of the class or type of motor vehicle being operated, under
par. (a) or
(b) committed within a 5-year period as follows:
351.02(1)(a)
(a) Four or more convictions of the following separate and distinct offenses, including any combination thereof:
351.02(1)(a)6.
6. Any crime punishable as a felony under
chs. 341 to
348 or any felony in the commission of which a motor vehicle is used.
351.02(1)(a)7.
7. Failure of the operator of a motor vehicle involved in an accident to stop at or near the scene of the accident and report his or her identity under
s. 346.67 (1).
351.02(1)(a)10.
10. Any offense under the law of another jurisdiction prohibiting conduct described in sections 6-207, 6-302, 10-102, 10-103, 10-104, 11-901, 11-902, 11-907 or 11-908 of the uniform vehicle code and model traffic ordinance (1987), or prohibiting homicide or manslaughter resulting from the operation of a motor vehicle, use of a motor vehicle in the commission of a felony, reckless or careless driving or driving a motor vehicle with wilful or wanton disregard for the safety of persons or property, driving or operating a motor vehicle while under the influence of alcohol, a controlled substance, a controlled substance analog or any other drug or a combination thereof as prohibited, refusal to submit to chemical testing, operating a motor vehicle while the operating privilege or operator's license is revoked or suspended, perjury or the making false statements or affidavits to a governmental agency in connection with the ownership or operation of a motor vehicle, failing to stop and identify oneself as the driver or operator in the event of a motor vehicle accident with a person or an attended motor vehicle or fleeing from or attempting to elude a police, law enforcement or other peace officer, as those or substantially similar terms are used in that jurisdiction's laws.
351.02(1)(b)
(b) Twelve or more convictions of moving violations, including violations under
par. (a), of traffic regulations or of crimes in the operation of a motor vehicle which are required to be reported under
s. 343.28 or
345.37 (5).
351.02(1)(c)
(c) The offenses under
pars. (a) and
(b) are deemed to include offenses under any valid ordinance enacted by a local authority under
s. 349.06 or any law enacted by a federally recognized American Indian tribe or band in this state which are in strict conformity with the offenses under
pars. (a) and
(b), and any federal law which is in substantial conformity with the offenses under
pars. (a) and
(b).
351.02(1)(d)
(d) If more than one offense under
par. (a) or
(b) arises out of the same occurrence, all of those offenses shall be treated as one offense, on the first such occasion, if the person charged has no record of prior offenses within the preceding 5-year period.
351.02(1)(f)
(f) The department may, by rule, exempt specific moving violations from being counted under
par. (b) if the department determines that the violation is a petty offense, except that the department may not exempt any violation for which the department assigns demerit points under
s. 343.32 (2) or rules promulgated thereunder.
351.02(1m)
(1m) "Repeat habitual traffic offender" means any person, resident or nonresident, whose record as maintained by the department shows that the person has been convicted of 2 offenses under
sub. (1) (b) committed within one year following issuance of an occupational license to the person pursuant to
s. 351.07 or whose record as maintained by the department shows that the person has been convicted of one offense under
sub. (1) (a) or 4 offenses under
sub. (1) (b) committed within 3 years following issuance of an occupational license to the person pursuant to
s. 351.07, regardless of the license under which the person was operating a motor vehicle or the classification of the vehicle being operated.
351.02(2)
(2) "Traffic regulation" means a provision of
chs. 194 or
341 to
349 for which the penalty for violation is a forfeiture or an ordinance enacted in accordance with
s. 349.06 or a law of a federally recognized American Indian tribe or band in this state which is in conformity with one or more provisions of
chs. 341 to
349.
351.02 Annotation
Judge isn't required to notify defendant that conviction could lead to classification as habitual traffic offender. Lewandowski v. State, 140 W (2d) 405, 411 NW (2d) 146 (Ct. App. 1987).
351.02 Annotation
Five-year requirement in (1) applies to offenses, not resulting convictions. De Bruin v. State, 140 W (2d) 631, 412 NW (2d) 130 (Ct. App. 1987).
351.025(1)(1) The secretary shall revoke a person's operating privilege for a period of 5 years upon receipt of a record of conviction which brings the person within the definition of a habitual traffic offender or repeat habitual traffic offender.
351.025(2)(a)(a) The revocation is effective on the date the department mails the notice of revocation, except as provided in
par. (b).
351.025(2)(b)
(b) If the person's operating privilege is currently suspended or revoked, the revocation under this chapter is effective on the date the person surrendered his or her operator's license for the current suspension or revocation or the date of the conviction in
sub. (1), whichever is later.
351.025 History
History: 1985 a. 71.
351.027
351.027
Hearing on revocations. 351.027(1)
(1) Whenever the secretary under authority of
s. 351.025 revokes a person's operating privilege, the secretary shall immediately notify the person in writing of the revocation and of the person's right to a hearing on the revocation as provided in
sub. (2). The department shall send the notice by 1st class mail to the address most recently provided to the department by the person.
351.027(2)
(2) If the person denies that he or she is a habitual traffic offender or repeat habitual traffic offender, the person may file with the circuit court for the county in which the person resides or, in the case of a nonresident, with the circuit court for Dane county a petition for a hearing and determination by the court that the person is not a habitual traffic offender or repeat habitual traffic offender. The scope of the hearing shall be limited to whether or not the person is the same person named in the record and whether or not the person was convicted of each offense shown by the record. The clerk of the court in which the petition is filed shall forward a copy of the petition to the secretary.
351.027 History
History: 1985 a. 71.
351.03
351.03
Secretary to certify copy of conviction record. Upon receipt of the copy of the petition under
s. 351.027, the secretary shall certify the record of conviction of any person whose record brings him or her within the definition of a habitual traffic offender or repeat habitual traffic offender to the court and to the district attorney of the county in which the person resides or to the attorney general if the person is not a resident of this state. The certified record shall be prima facie evidence that the person named therein was duly convicted by the court wherein the conviction or finding was made, of each offense shown by the record. If the person denies any of the facts as stated in the record, he or she shall have the burden of proving that the fact is false.
351.04
351.04
District attorney or attorney general to represent secretary. The district attorney for the county in which the person resides who receives the certified copy of record from the secretary under
s. 351.03 shall represent the secretary at the hearing under
s. 351.027. In the case of nonresidents, the attorney general shall represent the secretary at the hearing.
351.04 History
History: 1979 c. 333;
1985 a. 71.
351.05
351.05
Habitual traffic offender or repeat habitual traffic offender determination by the court. The court in which the petition under
s. 351.027 is filed shall determine whether the person is a habitual traffic offender or repeat habitual traffic offender. If the person denies he or she was convicted or found in violation of any offense necessary for a holding that he or she is a habitual traffic offender or repeat habitual traffic offender, and if the court is not able to make the determination on the evidence before it, the court may certify the decision of the issue to the court in which the conviction or finding of violation was made. The court to which the certification was made shall conduct a hearing to determine the issue and send a certified copy of its final order determining the issue to the court in which the petition was filed.
351.06
351.06
Order of court. If the court finds that the person before it is not the same person named in the record or that he or she is not a habitual traffic offender or repeat habitual traffic offender, the court shall order the secretary to reinstate the person's Wisconsin operating privilege. If the court finds that the person is the same person named in the record and that he or she is a habitual traffic offender or repeat habitual traffic offender, the court shall deny the person's petition for a determination that the person is not a habitual traffic offender or repeat habitual traffic offender. The clerk of the court shall file a copy of the order or denial of the petition with the department which shall become a part of the records of the department.
351.07
351.07
Occupational license; conviction after issuance. 351.07(1)(1) A person whose operating privilege has been revoked under this chapter as a habitual traffic offender may, after 2 years of the period of revocation have elapsed, petition a judge of the circuit court for the county in which the person resides for an order authorizing the issuance of an occupational license allowing the operation of vehicles other than commercial motor vehicles. The person's petition shall include a compelling reason why the person should be granted an occupational license and additional reasons why the judge should believe that the person's previous conduct as a traffic offender will not be repeated. The judge shall state his or her reasons for granting or denying the petition on the record. If the judge grants the petition, the judge shall issue an order authorizing the issuance of an occupational license, limited to the operation of vehicles other than commercial motor vehicles, to the person under
s. 343.10. The clerk of the court shall file a copy of the order with the department, which shall become a part of the records of the department. Upon receipt of the court order, the petitioner shall be considered an applicant by the department for purposes of
s. 343.10.
351.07(1g)
(1g) No person may file a petition for an occupational license under
sub. (1) unless he or she first pays a fee of $40 to the clerk of the circuit court. The clerk of the circuit court shall give the person a receipt and forward the fee to the county treasurer. That treasurer shall pay 50% of the fee to the state treasurer under
s. 59.25 (3) (m) and retain the balance for the use of the county.
351.07(1m)
(1m) Any person whose petition for issuance of an occupational license under
sub. (1) is granted may apply to the department for authorization to operate commercial motor vehicles. The applicant shall proceed as provided in
s. 343.10.
351.07(2)(a)(a) Upon conviction of a person who is issued an occupational license as provided by
sub. (1) or
(1m) of 2 offenses under
s. 351.02 (1) (b) committed within one year following issuance of the occupational license or of one offense under
s. 351.02 (1) (a) or 4 offenses under
s. 351.02 (1) (b) committed within 3 years following issuance of the occupational license, the secretary shall proceed under
s. 351.025.
351.07(2)(b)
(b) In lieu of the otherwise applicable penalties for the commission of the offenses enumerated in
s. 351.02 (1) (a) and
(b), a person who is issued an occupational license as provided by
sub. (1) or
(1m) and who is convicted of an offense under
s. 351.02 (1) (a) or
(b) as provided in
par. (a) may be required to pay not more than 200% of the maximum forfeiture or fine applicable to the offense or may be imprisoned for not more than 2 times the maximum period of imprisonment applicable to the offense or both.
351.08
351.08
Operation of motor vehicle by habitual traffic offender or repeat habitual traffic offender prohibited; penalty; enforcement. Any person who is convicted of operating a motor vehicle in this state while the revocation under this chapter is in effect shall, in addition to any penalty imposed under
s. 343.44, be fined not to exceed $5,000 and imprisoned not to exceed 180 days. No portion of the sentence may be suspended, except in a case where operating was made necessary by a situation of emergency, as determined by the court. Any person imprisoned under this section, on his or her request, may be allowed Huber law work privileges under
s. 303.08 or may be allowed to work under
s. 303.10 (3). For the purpose of enforcing this section, in any case in which the accused is charged with driving a motor vehicle while his or her license, permit or privilege to drive is suspended or revoked or is charged with driving without a license, the court before hearing the charge shall determine whether the person is a habitual traffic offender or repeat habitual traffic offender and therefore barred from operating a motor vehicle on the highways of this state.
351.08 Annotation
This section authorizes enhancements to penalties under 343.44; it does not create separate substantive offense.
75 Atty. Gen. 106.
351.09
351.09
Recalculation of habitual traffic offender status. Any person whose operating privilege is revoked as a habitual traffic offender or as a repeat habitual traffic offender and whose classification as a habitual traffic offender or repeat habitual traffic offender resulted from one or more convictions for violations of
s. 343.44 (1), or a local ordinance in conformity therewith, or the law of another jurisdiction that prohibits the operation of a motor vehicle with a suspended or revoked operator's license, may apply to the department for recalculation of that person's status as a habitual traffic offender or repeat habitual traffic offender. Upon receiving an application under this section, the department shall recalculate whether the person's record of convictions brings the person within the definition of a habitual traffic offender or repeat habitual traffic offender. If the recalculation demonstrates that the person is not a habitual traffic offender or repeat habitual traffic offender, the department shall rescind the order declaring the applicant a habitual traffic offender or repeat habitual traffic offender. Upon the completion of the recalculation under this section, the department shall provide written notice to the person of the result of the recalculation, of the order of rescission, if any, under this section and, if appropriate, of the process for reinstating the person's operating privilege. This section does not apply on or after January 1, 2003.
Effective date note
NOTE: This section is created eff. 5-1-2000 or the date stated in the notice published by the secretary of transportation in the Wisconsin Administrative Register under s. 85.515, whichever is earlier, by
1997 Wis. Act 84, section
151. The secretary published a notice in the Wisconsin Administrative Register, No. 510, dated June 30, 1998, declaring that sections
58 and
151 of
1997 Wis. Act 84 shall be effective on August 1, 1998.
351.09 History
History: 1997 a. 84.
351.10
351.10
Appeals. An appeal to the court of appeals may be taken from any final action or order of a court entered under this chapter in the same manner and form as an appeal in a criminal case.
351.10 History
History: 1979 c. 333;
1983 a. 535; Sup. Ct. Order, 146 W (2d) xiii, (1988).
351.11
351.11
Application of chapter. This chapter is in addition to and not in substitution for any provision of
ch. 343 requiring the revocation of an operating privilege. An operating privilege may be revoked in accordance with
ch. 343 notwithstanding the fact that the revocation is not mandated by this chapter. The penalty imposed under
s. 351.08 is in addition to the penalty imposed under any other law or ordinance for an offense specified in
s. 351.02.
351.11 History
History: 1979 c. 333;
1997 a. 84.
