Effective date note
NOTE: Par. (e) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(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.
346.65(2)(g)1.1. If a person convicted had an alcohol concentration of 0.17 to 0.199, the applicable minimum and maximum fines under
pars. (c) to
(e) are doubled.
346.65(2)(g)2.
2. If a person convicted had an alcohol concentration of 0.20 to 0.249, the applicable minimum and maximum fines under
pars. (c) to
(e) are tripled.
346.65(2)(g)3.
3. If a person convicted had an alcohol concentration of 0.25 or above, the applicable minimum and maximum fines under
pars. (c) to
(e) are quadrupled.
346.65(2c)
(2c) In
sub. (2) (b) to
(e), the time period shall be measured from the dates of the refusals or violations that resulted in the revocation or convictions. If a person has a suspension, revocation or conviction for any offense under a local ordinance or a state statute of another state that would be counted under
s. 343.307 (1), that suspension, revocation or conviction shall count as a prior suspension, revocation or conviction under
sub. (2) (b) to
(e).
346.65(2e)
(2e) If the court determines that a person does not have the ability to pay the costs and fine or forfeiture imposed under
sub. (2) (a),
(b),
(c),
(d),
(e),
(f) or
(g), the court may reduce the costs, fine and forfeiture imposed and order the person to pay, toward the cost of the assessment and driver safety plan imposed under
s. 343.30 (1q) (c), the difference between the amount of the reduced costs and fine or forfeiture and the amount of costs and fine or forfeiture imposed under
sub. (2) (a),
(b),
(c),
(d),
(e),
(f) or
(g).
346.65(2g)(a)(a) In addition to the authority of the court under
s. 973.05 (3) (a) to provide that a defendant perform community service work for a public agency or a nonprofit charitable organization in lieu of part or all of a fine imposed under
sub. (2) (b) to
(g) and except as provided in
par. (ag), the court may provide that a defendant perform community service work for a public agency or a nonprofit charitable organization in lieu of part or all of a forfeiture under
sub. (2) (a) or may require a person who is subject to
sub. (2) to perform community service work for a public agency or a nonprofit charitable organization in addition to the penalties specified under
sub. (2).
346.65(2g)(ag)
(ag) If the court determines that a person does not have the ability to pay a fine imposed under
sub. (2) (b) to
(g), the court shall require the defendant to perform community service work for a public agency or a nonprofit charitable organization in lieu of paying the fine imposed or, if the amount of the fine was reduced under
sub. (2e), in lieu of paying the remaining amount of the fine. Each hour of community service performed in compliance with an order under this paragraph shall reduce the amount of the fine owed by an amount determined by the court.
346.65(2g)(am)
(am) Notwithstanding
s. 973.05 (3) (b), an order under
par. (a) or
(ag) may only apply if agreed to by the organization or agency. The court shall ensure that the defendant is provided a written statement of the terms of the community service order and that the community service order is monitored. Any organization or agency acting in good faith to which a defendant is assigned pursuant to an order under this subsection has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the defendant. The issuance or possibility of the issuance of a community service order under this subsection does not entitle an indigent defendant who is subject to
sub. (2) (a) to representation by counsel under
ch. 977.
346.65(2g)(b)
(b) The court may require a person ordered to perform community service work under
par. (a) or
(ag), or under
s. 973.05 (3) (a) if that person's fine resulted from violating
s. 346.63 (2),
940.09 (1) or
940.25, to participate in community service work that demonstrates the adverse effects of substance abuse or of operating a vehicle while under the influence of an intoxicant or other drug, including working at an alcoholism treatment facility approved under
s. 51.45, an emergency room of a general hospital or a driver awareness program under
s. 346.637. The court may order the person to pay a reasonable fee, based on the person's ability to pay, to offset the cost of establishing, maintaining and monitoring the community service work ordered under this paragraph. If the opportunities available to perform community service work are fewer in number than the number of defendants eligible under this subsection, the court shall, when making an order under this paragraph, give preference to defendants who were under 21 years of age at the time of the offense. All provisions of
par. (am) apply to any community service work ordered under this paragraph.
346.65(2g)(c)
(c) If there was a minor passenger under 16 years of age in the motor vehicle or commercial motor vehicle at the time of the violation that gave rise to the conviction, the court may require a person ordered to perform community service work under
par. (a) or
(ag), or under
s. 973.05 (3) (a) if that person's fine resulted from violating
s. 346.63 (2),
(5) (a) or
(6) (a),
940.09 (1) or
940.25, to participate in community service work that benefits children or that demonstrates the adverse effects on children of substance abuse or of operating a vehicle while under the influence of an intoxicant or other drug. The court may order the person to pay a reasonable fee, based on the person's ability to pay, to offset the cost of establishing, maintaining and monitoring the community service work ordered under this paragraph.
346.65(2g)(d)
(d) With respect to imprisonment under
sub. (2) (b), the court shall ensure that the person is imprisoned for not less than 5 days or ordered to perform not less than 30 days of community service work under
s. 973.03 (3) (a).
346.65(2i)
(2i) In addition to the authority of the court under
sub. (2g) and
s. 973.05 (3) (a), the court may order a defendant subject to
sub. (2), or a defendant subject to
s. 973.05 (3) (a) who violated
s. 346.63 (2),
940.09 (1) or
940.25, to visit a site that demonstrates the adverse effects of substance abuse or of operating a vehicle while under the influence of an intoxicant or other drug, including an alcoholism treatment facility approved under
s. 51.45 or an emergency room of a general hospital in lieu of part or all of any forfeiture imposed or in addition to any penalty imposed. The court may order the defendant to pay a reasonable fee, based on the person's ability to pay, to offset the costs of establishing, maintaining and monitoring the visits ordered under this subsection. The court may order a visit to the site only if agreed to by the person responsible for the site. If the opportunities available to visit sites under this subsection are fewer than the number of defendants eligible for a visit, the court shall, when making an order under this subsection, give preference to defendants who were under 21 years of age at the time of the offense. The court shall ensure that the visit is monitored. A visit to a site may be ordered for a specific time and a specific day to allow the defendant to observe victims of vehicle accidents involving intoxicated drivers. If it appears to the court that the defendant has not complied with the court order to visit a site or to pay a reasonable fee, the court may order the defendant to show cause why he or she should not be held in contempt of court. Any organization or agency acting in good faith to which a defendant is assigned pursuant to an order under this subsection has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the defendant. The issuance or possibility of the issuance of an order under this subsection does not entitle an indigent defendant who is subject to
sub. (2) (a) to representation by counsel under
ch. 977.
346.65(2j)(a)
(a) Shall forfeit not less than $150 nor more than $300 except as provided in
par. (b),
(c) or
(d).
346.65(2j)(b)
(b) Except as provided in
par. (d), shall be fined not less than $300 nor more than $1,000 and imprisoned for not less than 5 days nor more than 6 months if the number of prior convictions under
ss. 940.09 (1) and
940.25 in the person's lifetime, plus the total number of other convictions, suspension and revocations counted under
s. 343.307 (2) within a 10-year period, equals 2.
346.65(2j)(c)
(c) Except as provided in
par. (d), 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 other convictions, suspensions and revocations counted under
s. 343.307 (2), equals 3 or more.
346.65(2j)(d)
(d) If there was a minor passenger under 16 years of age in the commercial motor vehicle at the time of the violation that gave rise to the conviction under
s. 346.63 (5), the applicable minimum and maximum forfeitures, fines or imprisonment under
par. (a),
(b) or
(c) for the conviction are doubled. An offense under
s. 346.63 (5) that subjects a person to a penalty under
par. (c) when there is a minor passenger under 16 years of age in the commercial motor vehicle is a felony and the place of imprisonment shall be determined under
s. 973.02.
346.65(2m)(a)(a) In imposing a sentence under
sub. (2) for a violation of
s. 346.63 (1) (b) or
(5) or a local ordinance in conformity therewith, the court shall review the record and consider the aggravating and mitigating factors in the matter. If the level of the person's blood alcohol level is known, the court shall consider that level as a factor in sentencing. The chief judge of each judicial administrative district shall adopt guidelines, under the chief judge's authority to adopt local rules under
SCR 70.34, for the consideration of aggravating and mitigating factors.
346.65(2q)
(2q) Any person violating
s. 346.63 (2m) shall forfeit $10. 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 346.63 (2m), the forfeiture is $20.
346.65(2r)(a)(a) In addition to the other penalties provided for violation of
s. 346.63, a judge may order a defendant to pay restitution under
s. 973.20.
346.65(2r)(b)
(b) This subsection is applicable in actions concerning violations of local ordinances in conformity with
s. 346.63.
346.65(2u)(c)
(c) If a person arrested for a violation of
s. 346.63 (7) 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).
346.65(2w)
(2w) In determining the number of prior convictions for purposes of
sub. (2j), the court shall count convictions under
ss. 940.09 (1) and
940.25 in the person's lifetime, plus other suspensions, revocations and convictions counted under
s. 343.307 (2). Revocations, suspensions and convictions arising out of the same incident or occurrence shall be counted as one. The time period shall be measured from the dates of the refusals or violations which resulted in the revocation, suspension or convictions. If a person has a conviction under
s. 940.09 (1) or
940.25 in the person's lifetime, or another suspension, revocation or conviction for any offense that is counted under
s. 343.307 (2), that suspension, revocation or conviction shall count as a prior suspension, revocation or conviction under this section.
346.65(3)
(3) Except as provided in
sub. (5m), any person violating
s. 346.62 (3) shall be fined not less than $300 nor more than $2,000 and may be imprisoned for not less than 30 days nor more than one year in the county jail.
346.65(3m)
(3m) Any person violating
s. 346.63 (2) or
(6) shall be fined not less than $300 nor more than $2,000 and may be imprisoned for not less than 30 days nor more than one year in the county jail. 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 (2) or
(6), the offense is a felony, the applicable minimum and maximum fines or periods of imprisonment for the conviction are doubled and the place of imprisonment shall be determined under
s. 973.02.
346.65(4)
(4) Any person violating
s. 346.64 may be fined not less than $50 nor more than $500 or imprisoned not more than 6 months or both.
346.65(4m)
(4m) Except as provided in
sub. (5m), any person violating
s. 346.62 (2m) shall forfeit not less than $300 nor more than $1,000.
346.65(4r)(a)(a) If a court imposes a forfeiture under
sub. (4m) for a violation of
s. 346.62 (2m), the court shall also impose a railroad crossing improvement assessment equal to 50% of the amount of the forfeiture.
346.65(4r)(b)
(b) If a forfeiture is suspended in whole or in part, the railroad crossing improvement assessment shall be reduced in proportion to the suspension.
346.65(4r)(c)
(c) If any deposit is made for an offense to which this subsection applies, the person making the deposit shall also deposit a sufficient amount to include the railroad crossing improvement assessment under this subsection. If the deposit is forfeited, the amount of the railroad crossing improvement assessment shall be transmitted to the state treasurer under
par. (d). If the deposit is returned, the amount of the railroad crossing improvement assessment shall also be returned.
346.65(4r)(d)
(d) The clerk of the circuit court shall collect and transmit to the county treasurer the railroad crossing improvement assessment as required under
s. 59.40 (2) (m). The county treasurer shall then pay the state treasurer as provided in
s. 59.25 (3) (f) 2. The state treasurer shall deposit all amounts received under this paragraph in the transportation fund to be appropriated under
s. 20.395 (2) (gj).
Effective date note
NOTE: Sub. (5) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(5) Except as provided in sub. (5m), any person violating s. 346.62 (4) shall be fined not less than $600 nor more than $2,000 and may be imprisoned for not less than 90 days nor more than 2 years and 3 months.
346.65(5m)
(5m) If an operator of a vehicle violates
s. 346.62 (2) to
(4) where persons engaged in work in a highway maintenance or construction area or in a utility work area are at risk from traffic, any applicable minimum and maximum forfeiture or fine specified in
sub. (1),
(3),
(4m) or
(5) for the violation shall be doubled.
346.65(6)(a)1.1. The court may order a law enforcement officer to seize the motor vehicle used in the violation or improper refusal and owned by the person whose operating privilege is revoked under
s. 343.305 (10) or who committed a violation of
s. 346.63 (1) (a) or
(b) or
(2) (a) 1. or
2.,
940.09 (1) (a),
(b),
(c), or
(d), or
940.25 (1) (a),
(b),
(c), or
(d) if the person whose operating privilege is revoked under
s. 343.305 (10) or who is convicted of the violation has 2 or more prior suspensions, revocations, or convictions, counting convictions under
ss. 940.09 (1) and
940.25 in the person's lifetime, plus other convictions, suspensions, or revocations counted under
s. 343.307 (1). The court may not order a motor vehicle seized if the court enters an order under
s. 343.301 to immobilize the motor vehicle or equip the motor vehicle with an ignition interlock device or if seizure would result in undue hardship or extreme inconvenience or would endanger the health and safety of a person.
346.65(6)(a)2m.
2m. A person who owns a motor vehicle subject to seizure under this paragraph shall surrender to the clerk of circuit court the certificate of title issued under
ch. 342 for the motor vehicle that is subject to seizure. The person shall comply with this subdivision within 5 working days after receiving notification of this requirement from the district attorney. When a district attorney receives a copy of a notice of intent to revoke the operating privilege under
s. 343.305 (9) (a) of a person who has 2 or more prior convictions, suspensions or revocations, counting convictions under
ss. 940.09 (1) and
940.25 in the person's lifetime, plus other convictions, suspensions or revocations counted under
s. 343.307 (1), or when a district attorney notifies the department of the filing of a criminal complaint against a person under
s. 342.12 (4) (a), the district attorney shall notify the person of the requirement to surrender the certificate of title to the clerk of circuit court. The notification shall include the time limits for that surrender, the penalty for failure to comply with the requirement and the address of the clerk of circuit court. The clerk of circuit court shall promptly return the certificate of title surrendered to the clerk of circuit court under this subdivision after stamping the certificate of title with the notation "Per section 346.65 (6) of the Wisconsin statutes, ownership of this motor vehicle may not be transferred without prior court approval". Any person failing to surrender a certificate of title as required under this subdivision shall forfeit not more than $500.
346.65(6)(a)3.
3. The court shall notify the department, in a form and manner prescribed by the department, that an order to seize a motor vehicle has been entered. The registration records of the department shall reflect that the order has been entered against the vehicle and remains unexecuted. Any law enforcement officer may execute that order and shall transfer any motor vehicle ordered seized to the law enforcement agency that was originally ordered to seize the vehicle based on the information provided by the department. The law enforcement agency shall notify the department when an order has been executed under this subdivision and the department shall amend its vehicle registration records to reflect that notification.
346.65(6)(a)4.
4. The following motor vehicles are not subject to seizure and forfeiture under this subsection:
346.65(6)(a)4.a.
a. A motor vehicle used by any person as a common carrier in the transaction of business as a common carrier unless the owner or other person in charge of the motor vehicle had knowledge of or consented to the commission of the violation or refusal.
346.65(6)(a)4.b.
b. A commercial motor vehicle used by any person unless the owner or other person in charge of the commercial motor vehicle had knowledge of or consented to the commission of the violation or refusal.
346.65(6)(a)4.c.
c. A rented or leased motor vehicle used by a person other than the owner of the motor vehicle unless the violation or refusal was committed with the knowledge or consent of the owner of the motor vehicle.
346.65(6)(b)
(b) Within 10 days after seizing a motor vehicle under
par. (a), the law enforcement agency that seized the vehicle shall provide notice of the seizure by certified mail to the owner of the motor vehicle and to all lienholders of record. The notice shall set forth the year, make, model and serial number of the motor vehicle, where the motor vehicle is located, the reason for the seizure, and the forfeiture procedure if the vehicle was seized. When a motor vehicle is seized under this section, the law enforcement agency that seized the vehicle shall place the motor vehicle in a secure place subject to the order of the court.
346.65(6)(c)
(c) The district attorney of the county where the motor vehicle was seized, or where the owner improperly refused to take the test under
s. 343.305 or violated
s. 346.63 (1) (a) or
(b) or
(2) (a) 1. or
2.,
940.09 (1) (a),
(b),
(c) or
(d) or
940.25 (1) (a),
(b),
(c) or
(d), shall commence an action to forfeit the motor vehicle within 30 days after the motor vehicle is seized. The action shall name the owner of the motor vehicle and all lienholders of record as parties. The forfeiture action shall be commenced by filing a summons, complaint and affidavit of the law enforcement agency with the clerk of circuit court. Upon service of an answer, the action shall be set for hearing within 60 days after the service of the answer. If no answer is served or no issue of law or fact joined and the time for that service or joining of issues has expired, the court may render a default judgment as provided in
s. 806.02.
346.65(6)(d)
(d) At the hearing set under
par. (c), the state has the burden of proving to a reasonable certainty by the greater weight of the credible evidence that the motor vehicle seized under
par. (a) 1. is a motor vehicle used in the violation or the improper refusal and owned by a person who committed a violation of
s. 346.63 (1) (a) or
(b) or
(2) (a) 1. or
2.,
940.09 (1) (a),
(b),
(c) or
(d) or
940.25 (1) (a),
(b),
(c) or
(d) and that the person had 2 or more prior convictions, suspensions or revocations, counting convictions under
ss. 940.09 (1) and
940.25 in the person's lifetime, plus other convictions, suspensions or revocations counted under
s. 343.307 (1). If the state fails to meet the burden of proof required under this paragraph, the motor vehicle shall be returned to the owner upon the payment of storage costs.
346.65(6)(e)
(e) If, upon default or after a hearing, the court determines that the motor vehicle is forfeited to the state, the law enforcement agency that seized the motor vehicle shall dispose of the motor vehicle by sealed bid or auction sale following the procedure under
s. 342.40 (3) (c), except as provided in
par. (em). The law enforcement agency that seized the motor vehicle shall distribute 50% of the proceeds of the sale in the following order:
346.65(6)(e)1.
1. To pay the costs of the sale and of the seizure and storage of the motor vehicle.
346.65(6)(e)2.
2. To pay the law enforcement agency that arrested the violator for the costs of the arrest, investigation and prosecution.
346.65(6)(e)3.
3. To pay the district attorney's costs of prosecution.
346.65(6)(em)
(em) If there is a perfected security interest in the motor vehicle, the law enforcement officer shall transfer the motor vehicle to the lienholder having the primary perfected security interest for sale following the procedure under
s. 342.40 (3) (c). The lienholder shall distribute the proceeds of the sale in the following order:
346.65(6)(em)1.
1. To pay the primary lienholder for the amount of the lien, plus costs incurred in selling the vehicle.
346.65(6)(em)2.
2. To pay any other lienholder of record for the amount of the lien.
346.65(6)(em)3.
3. To pay any balance remaining to the law enforcement officer for distribution under
pars. (e),
(f) and
(g).
346.65(6)(f)
(f) If a motor vehicle forfeited and sold under this subsection is owned in part by a person other than the person who committed the violation or refusal under
par. (a), any moneys remaining from the sale, after making any payment to the lienholders under
par. (em) and as provided in
par. (e) 1. to
4., shall be paid to that person to the extent of the person's interest in the motor vehicle.
346.65(6)(g)
(g) Any balance remaining from the proceeds of the sale of the motor vehicle after the distribution under
par. (f) shall be deposited in the school fund.
346.65(6)(h)
(h) After a determination is made that a motor vehicle seized is not subject to forfeiture, the agency having custody of the motor vehicle shall take reasonable steps to notify the owner or other person in charge of the motor vehicle of the location of the motor vehicle and of his or her right to take possession of the motor vehicle.
346.65(6)(k)
(k) Except as provided in
par. (km), no person may transfer ownership of any motor vehicle that is subject to seizure under this subsection or make application for a new certificate of title under
s. 342.18 for the motor vehicle unless the court determines that the transfer is in good faith and not for the purpose of or with the effect of defeating the purposes of this subsection. The department may cancel a title or refuse to issue a new certificate of title in the name of the transferee as owner to any person who violates this paragraph.
346.65(6)(km)
(km) If a person purchases a motor vehicle in good faith and without knowledge that the motor vehicle was subject to immobilization or seizure or to equipping with an ignition interlock device under this subsection and the department has no valid reason for not issuing a certificate of title other than the prohibition under
par. (k), the department shall issue a new certificate of title in the name of the person requesting the new certificate of title if at the time of the purchase of the motor vehicle the certificate of title did not contain the notation stamped on the certificate of title by the clerk of circuit court under
par. (a) 2m. and if the person submits the affidavit required under
s. 342.12 (4) (c) 1. c.
346.65(7)
(7) A person convicted under
sub. (2) (b),
(c),
(d) or
(e) or
(2j) (b) or
(c) shall be required to remain in the county jail for not less than a 48-consecutive-hour period.
346.65 History
History: 1971 c. 278;
1973 c. 218;
1977 c. 193;
1979 c. 221;
1981 c. 20;
1985 a. 80,
337;
1987 a. 3,
27,
398,
399;
1989 a. 105,
176,
271;
1991 a. 39,
251,
277,
315;
1993 a. 198,
317,
475;
1995 a. 44,
338,
359,
425;
1997 a. 27,
135,
199,
237,
277,
283,
295;
1999 a. 32,
109;
2001 a. 16 ss.
3443k,
4060gm,
4060hw,
4060hy;
2001 a. 109.
346.65 Cross-reference
Cross-reference: For suspension or revocation of operating privileges upon convictions for OWI see s.
343.30.
346.65 Annotation
Penalty provisions of sub. (2) are mandatory and apply to subsequent violations committed prior to a conviction for the 1st offense. State v. Banks,
105 Wis. 2d 32,
313 N.W.2d 67 (1981).
346.65 Annotation
When the accused was represented by counsel in proceedings leading to the 2nd conviction, but not the first, there was no violation of the right to counsel precluding incarceration for the 2nd conviction since the first offense was a civil forfeiture case. State v. Novak,
107 Wis. 2d 31,
318 N.W.2d 364 (1982).
346.65 Annotation
The state has exclusive jurisdiction over 2nd offense for drunk driving. It is criminal and may not be prosecuted as an ordinance violation. County of Walworth v. Rohner,
108 Wis. 2d 713,
324 N.W.2d 682 (1982).
346.65 Annotation
Under sub. (3), a fine is mandatory but a jail sentence is discretionary. State v. McKenzie,
139 Wis. 2d 171,
407 N.W.2d 274 (Ct. App. 1987).
346.65 Annotation
Probation with a condition of 30-days' confinement in the county jail is inadequate to meet mandatory the imprisonment requirement of sub. (2) (c). State v. Meddaugh,
148 Wis. 2d 204,
435 N.W.2d 269 (Ct. App. 1988).
346.65 Annotation
A judgment entered in municipal court against a defendant for what is actually a second or subsequent offense is void. The state may proceed against the defendant criminally regardless of whether the judgment in municipal court is vacated. City of Kenosha v. Jensen,
184 Wis. 2d 91,
516 N.W.2d 4 (Ct. App. 1994).
346.65 Annotation
The general requirements for establishing prior criminal offenses in s. 973.12 are not applicable to the penalty enhancement provisions for drunk driving offenses under sub. (2). There is no presumption of innocence accruing to the defendant as to prior convictions, but the accused must have an opportunity to challenge the existence of the prior offense. State v. Wideman,
206 Wis. 2d 90,
556 N.W.2d 737 (1996).
346.65 Annotation
Sub. (2) is primarily a penalty enhancement statute. When a prior conviction is determined to be constitutionally defective, that conviction cannot be relied on for either charging or sentencing a present offense. State v. Foust,
214 Wis. 2d 567,
570 N.W.2d 905 (Ct. App. 1997).
346.65 Annotation
Seizure and forfeiture under sub. (6) of a vehicle used in the commission of the crime is an in rem civil forfeiture to which the constitution's double jeopardy clause is inapplicable. State v. Konrath,
218 Wis. 2d 290,
577 N.W.2d 601 (1998).
346.65 Annotation
The requirement under sub. (6) (k) that a court find a transfer to have been in good faith does not apply to security interests, but the creation of a security interest in a vehicle must be done in good faith in accordance with the Uniform Commercial Code. State v. Frankwick,
229 Wis. 2d 406,
599 N.W.2d 893 (Ct. App. 1999).
346.65 Annotation
A trial court cannot accept guilty pleas to both a second and a third offense OWI, and then apply the increased penalties of third offense OWI to the second offense conviction at sentencing. There must be a conviction before the graduated penalties can be used. State v. Skibinski, 2001 WI App 109,
244 Wis. 2d 229, 629 N.W. 12.
346.65 Annotation
When a person is charged under s. 346.63 (1) with a 2nd offense, the charge may not be reduced to a first offense and the court may not sentence under s. 346.65 (2) (a) 1. The department must treat this as a 2nd offense for purposes of revocation. 69 Atty. Gen. 47.
346.65 Annotation
An uncounseled civil forfeiture conviction may provide the basis for criminal penalties for a subsequent offense. Schindler v. Clerk of Circuit Court,
715 F.2d 341 (1983).
