346.595 Annotation
The provision requiring headlamps to be lighted is constitutional. City of Kenosha v. Dosemagen,
54 Wis. 2d 269,
195 N.W.2d 462 (1972).
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)(a)(a) 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 or in a utility work 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(3m)(b)
(b) If an operator of a vehicle violates
s. 346.57 (2) to
(5) when children are present in a zone designated by "school" warning signs as provided in
s. 118.08 (1), 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 or electric personal assistive mobility device who violates
s. 346.57 may be required to forfeit not more than $20.
346.60(5)(b)
(b) Any operator of a bicycle or electric personal assistive mobility device who violates
s. 346.59 may be required to forfeit not more than $10.
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 employees 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
A privately owned parking lot was not included under this section. City of Kenosha v. Phillips,
142 Wis. 2d 549,
419 N.W.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 Wis. 2d 856,
505 N.W.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(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
That the 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)(am)
(am) The person has a detectable amount of a restricted controlled substance in his or her blood.
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 any combination of
par. (a),
(am), or
(b) for acts arising out of the same incident or occurrence. If the person is charged with violating any combination of
par. (a),
(am), or
(b), the offenses shall be joined. If the person is found guilty of any combination of
par. (a),
(am), or
(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),
(am), and
(b) each require proof of a fact for conviction which the others do not require.
346.63(1)(d)
(d) In an action under
par. (am) that is based on the defendant allegedly having a detectable amount of methamphetamine, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol.
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. The person has a detectable amount of a restricted controlled substance in his or her blood.
346.63(2)(am)
(am) A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of any combination of
par. (a) 1.,
2., or
3. for acts arising out of the same incident or occurrence. If the person is charged with violating any combination of
par. (a) 1.,
2., or
3. in the complaint, the crimes shall be joined under
s. 971.12. If the person is found guilty of any combination of
par. (a) 1.,
2., or
3. 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.,
2., and
3. each require proof of a fact for conviction which the others do not require.
346.63(2)(b)1.1. 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, did not have a prohibited alcohol concentration described under
par. (a) 2., or did not have a detectable amount of a restricted controlled substance in his or her blood.
346.63(2)(b)2.
2. In an action under
par. (a) 3. that is based on the defendant allegedly having a detectable amount of methamphetamine, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol.
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 0.08. 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 0.08.
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 0.08.
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 Cross-reference
Cross Reference: See also ch.
Trans 132, Wis. adm. code.
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 as to operating with a prohibited blood alcohol count, see the note to State v. Ludeking,
195 Wis. 2d 132,
536 N.W.2d 392 (Ct. App. 1995),
94-1527.
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 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).
