346.62(2m)
(2m) No person may recklessly endanger the safety of any person by driving a vehicle on or across a railroad crossing in violation of
s. 346.44 (1) or through, around or under any crossing gate or barrier at a railroad crossing in violation of
s. 346.44 (2).
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;
1997 a. 135.
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 racer was not a defense to a charge of reckless driving. State v. Passarelli,
55 Wis. 2d 78,
197 N.W.2d 740.
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)(am)
(am) A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of
par. (a) 1. or
2. or both for acts arising out of the same incident or occurrence. If the person is charged with violating
par. (a) 1. and
2. in the complaint, the crimes shall be joined under
s. 971.12. If the person is found guilty of
par. (a) 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.
Paragraph (a) 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(2m)
(2m) If a person has not attained the legal drinking age, as defined in
s. 125.02 (8m), 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 AnnotationIt is no defense that the defendant is an alcoholic. State v. Koller,
60 Wis. 2d 755 (1973).
346.63 Annotation
Evidence that the defendant, found asleep in parked car, had driven to the parking place 14 minutes earlier, was sufficient to support a conviction for operating a car while intoxicated. Monroe County v. Kruse,
76 Wis. 2d 126,
250 N.W.2d 375 (1977).
346.63 Annotation
Intent to drive or move a motor vehicle is not required to find an accused guilty of operating the vehicle while under influence of intoxicant. Milwaukee County v. Proegler,
95 Wis. 2d 614,
291 N.W.2d 608 (Ct. App. 1980).
346.63 Annotation
The court properly instructed the jury that it could infer from a subsequent breathalyzer reading of .13% that the defendant was intoxicated at the time of the stop. Alcohol absorption is discussed. State v. Vick,
104 Wis. 2d 678,
312 N.W.2d 489 (1981).
346.63 Annotation
A previous conviction for operating while intoxicated is a penalty enhancer, not an element of the crime. State v. McAllister,
107 Wis. 2d 532,
319 N.W.2d 865 (1982). But see the note to State v. Ludeking,
195 Wis. 2d 132,
536 N.W.2d 392 (Ct. App. 1995) as to operating with a prohibited blood alcohol count.
346.63 Annotation
Videotapes of sobriety tests were properly admitted to show the physical manifestation of the defendant driver's intoxication. State v. Haefer,
110 Wis. 2d 381,
328 N.W.2d 894 (Ct. App. 1982).
346.63 Annotation
The trial court abused its discretion by excluding from evidence a blood alcohol chart produced by the department of transportation showing the amount of alcohol burned up over time. State v. Hinz,
121 Wis. 2d 282,
360 N.W.2d 56 (Ct. App. 1984).
346.63 Annotation
The definitions of "under the influence" in this section and in s. 939.22 are equivalent. State v. Waalen,
130 Wis. 2d 18,
386 N.W.2d 47 (1986).
346.63 Annotation
Sub. (1) (b) establishes a per se rule that it is a violation to operate a motor vehicle with a specified breath alcohol content, regardless of the individual's "partition ratio". The provision is constitutional. State v. McManus,
152 Wis. 2d 113,
447 N.W.2d 654 (1989).
346.63 Annotation
First offender OMVWI prosecution is a civil offense, and jeopardy does not attach to prevent a subsequent criminal prosecution. State v. Lawton,
167 Wis. 2d 461,
482 N.W.2d 142 (Ct. App. 1992).
346.63 Annotation
Because there is no privilege under s. 904.05 (4) (f) for chemical tests for intoxication, results of a test taken for diagnostic purposes are admissible in an OMVWI trial without patient approval. City of Muskego v. Godec,
167 Wis. 2d 536,
482 N.W.2d 79 (1992).
346.63 Annotation
Dissipation of alcohol in the bloodstream constitutes a sufficient exigency to justify a warrantless blood draw when when it is drawn incident to a lawful arrest and there is a clear indication that evidence of intoxication will be found. State v. Bohling,
173 Wis. 2d 529,
494 N.W.2d 399 (1993).
346.63 Annotation
When a municipal court found the 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 Wis. 2d 191,
503 N.W.2d 382 (Ct. App. 1993).
346.63 Annotation
Prior convictions are an element of sub. (1) (b) and evidence of the convictions is required regardless of potential prejudice. State v. Ludeking,
195 Wis. 2d 132,
536 N.W.2d 392 (Ct. App. 1995).
346.63 Annotation
Failure to timely notify a person of the right to an alternative blood alcohol test does not affect the presumption of the validity of a properly given blood test and is not grounds for suppressing the test results. County of Dane v. Granum,
203 Wis. 2d 252,
551 N.W.2d 859 (Ct. App. 1996).
346.63 Annotation
A request to perform field sobriety tests does not convert an otherwise lawful investigatory stop into an arrest requiring probable cause. County of Dane v. Campshure,
204 Wis. 2d 27,
552 N.W.2d 876 (Ct. App. 1996)
346.63 Annotation
Immobility of a vehicle does not preclude a finding that the vehicle was being operated. Movement is not necessary for operation. State v. Modory,
204 Wis. 2d 538,
555 N.W.2d 399 (Ct. App. 1996).
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 double jeopardy. State v. McMaster,
206 Wis. 2d 30,
556 N.W.2d 673 (1996).
346.63 Annotation
Evidence of a refusal that follows an inadequate warning under s. 343.305 (4) violates due process, but admission is subject to harmless error analysis. State v. Schirmang,
210 Wis. 2d 325,
565 N.W.2d 225 (Ct. App. 1997).
346.63 Annotation
A defendant's refusal to submit to a field sobriety test is not protected by the right against self-incrimination and is admissible as evidence. State v. Mallick,
210 Wis. 2d 428,
565 N.W.2d 245 (Ct. App. 1997).
346.63 Annotation
While prior convictions are an element of a violation of sub. (1) (b), admitting evidence of that element may not be proper. Admitting any evidence of prior convictions and submitting the element of the defendant's status as a prior offender to the jury when the defendant admitted to the element was an erroneous exercise of discretion. State v. Alexander,
214 Wis. 2d 627,
571 N.W.2d 662 (1997).
346.63 Annotation
First offense violations of sub. (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).
346.63 Annotation
Offense definition in Wisconsin's impaired driving statutes. Hammer. 69 MLR 165 (1986).
346.63 Annotation
Alcohol and other drugs in Wisconsin drivers: The laboratory perspective. Field. 69 MLR 235 (1986).
346.63 Annotation
Effective use of expert testimony in the defense of drunk driving cases. Olson, WBB December 1981.
346.63 Annotation
The new OMVWI law: Wisconsin changes its approach to the problem of drinking and driving. Hammer, WBB April, May 1982.
346.63 Annotation
Double Jeopardy: A New Tool in the Arsenal of Drunk Driving Defenses. Sines & Ekman. Wis. Law. Dec. 1995.
346.635
346.635
Report arrest or out-of-service order to department. Whenever a law enforcement officer arrests a person for a violation of
s. 346.63 (1),
(5) or
(7), 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, the officer shall notify the department of the arrest and of issuance of an out-of-service order under
s. 343.305 (7) (b) or
(9) (am) as soon as practicable.
346.635 History
History: 1981 c. 20;
1989 a. 105.
346.637
346.637
Driver awareness program. The department shall conduct a campaign to educate drivers in this state concerning:
346.637(1)
(1) The laws relating to operating a motor vehicle and drinking alcohol, using controlled substances or controlled substance analogs, or using any combination of alcohol, controlled substances and controlled substance analogs.
346.637(2)
(2) The effects of alcohol, controlled substances or controlled substance analogs, or the use of them in any combination, on a person's ability to operate a motor vehicle.
346.637 History
History: 1981 c. 20;
1995 a. 448.
346.64
346.64
Employment of drunken operators. 346.64(1)
(1) No person who owns or has direct control of a commercial motor vehicle or any vehicle operated upon a highway for the conveyance of passengers for hire shall employ as an operator of such vehicle and retain in the person's employment any person who is addicted to the excessive use of intoxicating liquor or to the use of a controlled substance or controlled substance analog under
ch. 961. In addition to being subject to fine or imprisonment as prescribed by law, such person shall forfeit $5 for each day such operator is retained in the person's employ.
346.64(2)
(2) Upon conviction of an operator of a commercial motor vehicle or any vehicle operated for the conveyance of passengers for hire, for driving or operating such vehicle while under the influence of an intoxicant, the owner or person having direct control of such vehicle shall discharge such operator from such employment. No person shall employ or retain in employment as an operator of a commercial motor vehicle or a vehicle operated upon a highway for the conveyance of passengers for hire any person who has been so convicted within the preceding 6-month period or any person during a period of disqualification under
s. 343.315, unless
s. 343.055 (2) applies. In addition to being subject to fine or imprisonment as prescribed by law, such person shall forfeit $5 for each day such operator is retained in the person's employ contrary to the provisions of this subsection.
346.65
346.65
Penalty for violating sections 346.62 to 346.64. 346.65(1)(a)
(a) May be required to forfeit not less than $25 nor more than $200, except as provided in
par. (b).
346.65(1)(b)
(b) May be fined not less than $50 nor more than $500 or imprisoned for not more than one year in the county jail or both if the total of convictions under
s. 346.62 (2) or a local ordinance in conformity therewith or a law of a federally recognized American Indian tribe or band in this state in conformity with
s. 346.62 (2) equals 2 or more in a 4-year period. The 4-year period shall be measured from the dates of the violations which resulted in the convictions.
346.65(2)(a)
(a) Shall forfeit not less than $150 nor more than $300, except as provided in
pars. (b) to
(f).
346.65(2)(b)
(b) Except as provided in
par. (f), shall be fined not less than $350 nor more than $1,100 and imprisoned for not less than 5 days nor more than 6 months if the number of convictions under
ss. 940.09 (1) and
940.25 in the person's lifetime, plus the total number of suspensions, revocations and other convictions counted under
s. 343.307 (1) within a 10-year period, equals 2, except that suspensions, revocations or convictions arising out of the same incident or occurrence shall be counted as one.
346.65(2)(c)
(c) Except as provided in
pars. (f) and
(g), shall be fined not less than $600 nor more than $2,000 and imprisoned for not less than 30 days nor more than one year in the county jail if the number of convictions under
ss. 940.09 (1) and
940.25 in the person's lifetime, plus the total number of suspensions, revocations and other convictions counted under
s. 343.307 (1), equals 3, except that suspensions, revocations or convictions arising out of the same incident or occurrence shall be counted as one.
346.65(2)(d)
(d) Except as provided in
pars. (f) and
(g), shall be fined not less than $600 nor more than $2,000 and imprisoned for not less than 60 days nor more than one year in the county jail if the number of convictions under
ss. 940.09 (1) and
940.25 in the person's lifetime, plus the total number of suspensions, revocations and other convictions counted under
s. 343.307 (1), equals 4, except that suspensions, revocations or convictions arising out of the same incident or occurrence shall be counted as one.
346.65(2)(e)
(e) Except as provided in
pars. (f) and
(g), shall be fined not less than $600 nor more than $2,000 and imprisoned for not less than 6 months nor more than 5 years if the number of convictions under
ss. 940.09 (1) and
940.25 in the person's lifetime, plus the total number of suspensions, revocations and other convictions counted under
s. 343.307 (1), equals 5 or more, except that suspensions, revocations or convictions arising out of the same incident or occurrence shall be counted as one.
346.65(2)(f)
(f) If there was a minor passenger under 16 years of age in the motor vehicle at the time of the violation that gave rise to the conviction under
s. 346.63 (1), the applicable minimum and maximum forfeitures, fines or imprisonment under
par. (a),
(b),
(c),
(d) or
(e) for the conviction are doubled. An offense under
s. 346.63 (1) that subjects a person to a penalty under
par. (c),
(d) or
(e) when there is a minor passenger under 16 years of age in the motor vehicle is a felony and the place of imprisonment shall be determined under
s. 973.02.
