346.65(2q)
(2q) Any person violating
s. 346.63 (2m) shall forfeit $200. 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 $400.
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) Except as provided in
sub. (3r), 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(3r)
(3r) In Winnebago County, any person violating
s. 346.63 (2) or
(6) shall be fined the same as under
sub. (3m), but the period of imprisonment shall be not less than 30 days, except that if the person successfully completes a period of probation that includes alcohol and other drug treatment, the period of imprisonment shall be not less than 15 days. 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. A person may be sentenced under this subsection or under
sub. (2) (bm) or
(cm) or
(2j) (bm) or
(cm) once in his or her lifetime.
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 surcharge under
ch. 814 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 surcharge 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 surcharge under this subsection. If the deposit is forfeited, the amount of the railroad crossing improvement surcharge shall be transmitted to the secretary of administration under
par. (d). If the deposit is returned, the amount of the railroad crossing improvement surcharge 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 surcharge as required under
s. 59.40 (2) (m). The county treasurer shall then pay the secretary of administration as provided in
s. 59.25 (3) (f) 2. The secretary of administration shall deposit all amounts received under this paragraph in the transportation fund to be appropriated under
s. 20.395 (2) (gj).
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),
(am), or
(b) or
(2) (a) 1.,
2., or
3.,
940.09 (1) (a),
(am),
(b),
(c),
(cm), or
(d), or
940.25 (1) (a),
(am),
(b),
(c),
(cm), 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),
(am), or
(b) or
(2) (a) 1.,
2., or
3.,
940.09 (1) (a),
(am),
(b),
(c),
(cm), or
(d) or
940.25 (1) (a),
(am),
(b),
(c),
(cm), 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),
(am), or
(b) or
(2) (a) 1.,
2., or
3.,
940.09 (1) (a),
(am),
(b),
(c),
(cm), or
(d) or
940.25 (1) (a),
(am),
(b),
(c),
(cm), 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(8)
(8) There shall be a pilot project in Winnebago County providing for alternative penalties under this section, which penalties shall be as specified in
subs. (2) (bm) and
(cm),
(2j) (bm) and
(cm), and
(3r).
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;
2003 a. 33,
97,
139,
326;
2005 a. 149,
317,
389.
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 the mandatory imprisonment requirement of sub. (2) (c). State v. Meddaugh,
148 Wis. 2d 204,
435 N.W.2d 269 (Ct. App. 1988).
346.65 Annotation
An OWI conviction in another state need not be under a law with the same elements as the Wisconsin statute to be counted as a prior conviction. State v. White,
177 Wis. 2d 121,
501 N.W.2d 463 (Ct. App. 1993).
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 91,
556 N.W.2d 737 (1996),
95-0852.
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 568,
570 N.W.2d 905 (Ct. App. 1997),
97-0499.
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),
96-1261.
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),
98-2484.
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.2d 12,
00-1278.
346.65 Annotation
A defendant convicted of a second or subsequent OWI is subject to the penalty enhancements provided for in both ss. 346.65 (2) and 939.62, if the application of each enhancer is based on a separate and distinct prior conviction or convictions. State v. Delaney, 2003 WI 9,
259 Wis. 2d 77,
658 N.W.2d 416,
01-1051.
346.65 Annotation
The proper time to determine the number of a defendant's prior OWI convictions for sentence enhancement purposes is at sentencing, regardless of whether some convictions may have occurred after a defendant committed the present offense. State v. Matke, 2005 WI App 4,
278 Wis. 2d 403,
692 N.W.2d 265,
03-2278.
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).
346.65 Annotation
New Law's `Get Tough' Provisions Fall Short of the Mark. Pangman & Mutschler. Wis. Law. Feb. 1993.
346.65 Annotation
Targeting the Repeat Offender. Emerson & Maasen. Wis. Law. Feb. 1993.
346.655
346.655
Driver improvement surcharge. 346.655(1)
(1) If a court imposes a fine or a forfeiture for a violation of
s. 346.63 (1) or
(5), except for a first violation of
s. 346.63 (1) (b), if the person who committed the violation had a blood alcohol concentration of 0.08 or more but less than 0.1 at the time of the violation, 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, it shall impose a driver improvement surcharge under
ch. 814 in an amount of $355 in addition to the fine or forfeiture, plus costs, fees, and other surcharges imposed under
ch. 814.
346.655(2)(a)(a) Except as provided in
par. (b), the clerk of court shall collect and transmit the amount under
sub. (1) to the county treasurer as provided in
s. 59.40 (2) (m). The county treasurer shall then make payment of 38.5% of the amount to the secretary of administration as provided in
s. 59.25 (3) (f) 2.
346.655(2)(b)
(b) If the forfeiture is imposed by a municipal court, the court shall transmit the amount to the treasurer of the county, city, town, or village, and that treasurer shall make payment of 38.5% of the amount to the secretary of administration as provided in
s. 66.0114 (1) (bm). The treasurer of the city, town, or village shall transmit the remaining 61.5% of the amount to the treasurer of the county.
346.655(3)
(3) All moneys collected from the driver improvement surcharge that are transmitted to the county treasurer under
sub. (2) (a) or
(b), except the amounts that the county treasurer is required to transmit to the secretary of administration under
sub. (2) (a) or
(b), shall be retained by the county treasurer and disbursed to the county department under
s. 51.42 for services under
s. 51.42 for drivers referred through assessment.
346.655(4)
(4) Any person who fails to pay a driver improvement surcharge imposed under
sub. (1) is subject to
s. 343.30 (1z).
346.655 Annotation
Nothing in sub. (2m) (a) prohibits chief judges from linking the aggravating and mitigating factors with an appropriate sentence within the broader range of sentences allowed under s. 346.65 when adopting guidelines for their districts. A court may refer to the guidelines when sentencing under s. 346.63 (1) (a), but as the guidelines specifically only apply to s. 343.63 (1) (b) and (5), it is inappropriate for a court to apply the guidelines as the sole basis for its sentence in a s. 346.63 (1) (a) case. That the various judicial districts have different guidelines and defendants may receive different sentences based on where the crime was committed does not make guidelines adopted under sub. (2m) (a) unconstitutional. State v. Jorgensen, 2003 WI 105,
264 Wis. 2d 157,
667 N.W.2d 318,
01-2690.
346.655 Annotation
Imprisonment or suspension of a license under s. 345.47 (1) (a) and (b) does not eliminate the liability of a defendant for payment of a surcharge under s. 346.655.
73 Atty. Gen. 24.
ACCIDENTS AND ACCIDENT REPORTS
346.66
346.66
Applicability of sections relating to accidents and accident reporting. In addition to being applicable upon highways,
ss. 346.67 to
346.70 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. These sections do not apply to private parking areas at farms or single-family residences or to accidents involving only snowmobiles, all-terrain vehicles or vehicles propelled by human power or drawn by animals.
346.66 Annotation
The test for whether a premises is held out to the public is whether on any given day, potentially any resident of the community with a driver's license and access to a motor vehicle could use the premises in an authorized manner. State v. Carter,
229 Wis. 2d 200,
598 N.W.2d 619 (Ct. App. 1999),
98-1688.
346.665
346.665
Definition. In
ss. 346.67 to
346.72, notwithstanding
s. 340.01 (42), "owner" means, with respect to a vehicle that is registered, or required to be registered, by a lessee of the vehicle under
ch. 341, the lessee of the vehicle.
346.665 History
History: 1997 a. 27.
346.67
346.67
Duty upon striking person or attended or occupied vehicle. 346.67(1)(1) The operator of any vehicle involved in an accident resulting in injury to or death of any person or in damage to a vehicle which is driven or attended by any person shall immediately stop such vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until the operator has fulfilled the following requirements:
346.67(1)(a)
(a) The operator shall give his or her name, address and the registration number of the vehicle he or she is driving to the person struck or to the operator or occupant of or person attending any vehicle collided with; and
