343.305 Annotation
That a person agreed to a breath test but not a blood test, did not render police insistence on a blood test unreasonable. State v. Wodenjak,
247 Wis. 2d 554,
634 N.W.2d 867.
343.305 Annotation
By consenting to the taking of a blood sample, the defendant also consented to the chemical analysis of the sample. These are not separate events for warrant requirement purposes. State v. VanLaarhoven, 2001 WI App 275,
248 Wis. 2d 881,
637 N.W.2d 411,
01-0222.
343.305 Annotation
A warrantless blood draw by a physician in a jail setting may be unreasonable if it invites an unjustified element of personal risk of pain and infection. Absent evidence of those risks, a blood draw under those circumstances was reasonable. State v. Daggett, 2002 WI App 32,
250 Wis. 2d 112,
640 N.W.2d 546,
01-1417.
343.305 Annotation
The circuits court's improper denial of a hearing requested under sub. (8) as the result of its miscalculation of time that resulted in a suspension without a hearing was not a fundamental error entitling the defendant to dismissal of the conviction against him when the court, on realizing the error, conducted a hearing and found that the defendant's refusal was improper and a license suspension was in order. State v. Carlson, 2002 WI App 44,
250 Wis. 2d 562,
641 N.W.2d 451,
01-1088.
343.305 Annotation
Sub. (9) (a) does not provide the exclusive option when faced with an arrestee who refuses to submit to s chemical test. An officer may acknowledge the refusal, complete the sub. (9) (a) intent to revoke form, and then proceed with an involuntary blood test, using reasonable force to withdraw blood from a noncompliant suspect. The officer may necessarily inform a suspect that such a procedure is a possibility upon his or her refusal. State v. Marshall, 2002 WI App 73,
251 Wis. 2d 408,
642 N.W.2d 571,
01-1403.
343.305 Annotation
When the arresting officer makes no specific threats beyond what arises under this section, the threat of lost driving privileges does not constitute a coercive measure that invalidates a defendant's consent for 4th amendment purposes. An arresting officer, by reading the informing the accused form, simply states the truth: refusal to submit to a chemical test will result in driving privileges being revoked. Officers are entitled to make true statements. Village of Little Chute v. Walitalo, 2002 WI App 211,
256 Wis. 2d 1032,
650 N.W.2d 891,
01-3060. See also, State v. Wintlend, 2002 WI App 314,
258 Wis. 2d 875,
655 N.W.2d 745,
02-0965.
343.305 Annotation
Repeated requests for an attorney can amount to a refusal as long as the officer informs the driver that there is no right to an attorney at that point. State v. Baratka, 2002 WI App 288,
258 Wis. 2d 342,
654 N.W.2d 875,
02-0770.
343.305 Annotation
If an officer explicitly assures or implicitly suggests that a custodial defendant has a right to consult counsel before deciding whether to submit to the test, the defendant relied on the offering, and the officer nonetheless marked a refusal despite the defendant's reliance, then the refusal was reasonably made. State v. Verkler, 2003 WI App 37,
260 Wis. 2d 391,
659 N.W.2d 137,
02-1545.
343.305 Annotation
This section does not require that test results must be suppressed when there is a failure to reasonably convey the implied consent warnings to an apprehended driver. Under the circumstances of this case on remand the defendant was entitled to pursue an order prohibiting the automatic admissibility of the blood test result pursuant to s. 885.235, which if granted would require the state to establish the admissibility of the blood test, including establishing a foundation. State v. Begicevic, 2004 WI App 57,
270 Wis. 2d 675,
678 N.W.2d 293,
03-1223.
343.305 Annotation
The approval of an instrument under sub. (6) (b) without promulgation of an administrative rule under ch. 227 did not constitute creation of an invalid administrative rule. County of Dane v. Winsand, 2004 WI App 86,
271 Wis. 2d 786,
679 N.W.2d 885,
03-2004.
343.305 Annotation
Sub. (5) (a) does not impose a requirement that the request for an additional blood test be made after the first test is completed. State v. Schmidt, 2004 WI App 235,
277 Wis. 2d 561,
691 N.W.2d 379,
04-0904.
343.305 Annotation
When police have informed a suspect of his or her right to an alternative test at agency expense, the suspect has ample opportunity to make a request, the suspect makes no request, and the suspect is released from custody and leaves the presence of custodial police, a subsequent request for an alternative test at agency expense is not a request within the meaning of sub. (5) (a). State v. Fahey, 2005 WI App 171,
285 Wis. 2d 679,
702 N.W.2d 400,
04-0102.
343.305 Annotation
There is no right to counsel at the refusal hearing because such a hearing is civil, not criminal, in nature and therefore there is no constitutional right to effective assistance of counsel. State v. Krause, 2006 WI App 43,
289 Wis. 2d 573,
712 N.W.2d 67,
05-0472.
343.305 Annotation
Giving Miranda warnings prior to reading Informing the Accused warnings under this section does not lead to a conclusion that the officer explicitly assured or implicitly suggested that a defendant has a right to consult counsel or to stand silent in the face of the implied consent warnings. Such a conclusion requires that the accused must be told he or she has the right to consult with counsel before deciding to submit to chemical testing and that the accused relied on the assurance or suggestion when responding to the request for a chemical test. State v. Kliss, 2007 WI App 13,
298 Wis. 2d 275,
728 N.W.2d 9,
06-0113.
343.305 Annotation
There cannot be substantial compliance with sub. (4) when the law enforcement officer fails to give the defendant the statutorily required information about penalties. If the circuit court determines that the officer failed to inform the accused in compliance with the statute, the court shall order that no action be taken on the operating privilege on account of the person's refusal to take the test in question. This does not apply misstatements of information beyond the required information, which are governed by Ludwigson. Washburn County v. Smith, 2008 WI 23,
308 Wis. 2d 65,
746 N.W.2d 243,
06-3163.
343.305 Annotation
When a law enforcement officer has reasonable grounds to believe that an unconscious person is guilty of driving while intoxicated, a blood sample may be taken, and the test results are admissible in evidence and may not be excluded by the trial court. 59 Atty. Gen. 183.
343.305 Annotation
Implied consent is discussed. 62 Atty. Gen. 174.
343.305 Annotation
The method by which a law enforcement agency may provide 2 tests for blood alcohol content under sub. (1), 1985 stats. [now sub. (2)] is discussed. The agency is not required to actually own or physically possess the testing devices. 63 Atty. Gen. 119.
343.305 Annotation
Under s. 343.305 (1) and (4), 1985 stats., hospital personnel must administer tests and report results at the request of officers, subject to penalty under 946.40. 68 Atty. Gen. 209.
343.305 Annotation
Federal law requiring confidentiality of patient records has no application to the taking of a blood sample under this section.
73 Atty. Gen. 45.
343.305 Annotation
A law enforcement officer may use physical restraint, subject to constitutional limitations, in order to draw a legally justified blood sample. Refusal by a health professional to comply with a law enforcement officer's authorized request to take a blood sample from a person whom the officer has legally restrained by force constitutes refusal to aid an officer under s. 946.40.
74 Atty. Gen. 123.
343.305 AnnotationRefusal hearings under this section are discussed.
77 Atty. Gen. 4.
343.305 Annotation
A Massachusetts implied consent law that mandates suspension of a license for refusal to take a breath-analysis test did not violate the due process clause. Mackey v. Montrym,
443 U.S. 1 (1979).
343.305 Annotation
The admission into evidence of a defendant's refusal to submit to a blood-alcohol test did not deny the right against self-incrimination. South Dakota v. Neville,
459 U.S. 553 (1983).
343.305 Annotation
Wisconsin's new administrative suspension statute. 72 MLR 120 (1988).
343.305 Annotation
The new OMVWI law: Wisconsin changes its approach to the problem of drinking and driving. Hammer, WBB April, May 1982.
343.305 Annotation
Technical problems corrected: Operating while intoxicated. Hancock and Maassen. WBB Apr. 1987.
343.305 Annotation
Wisconsin's breath testing program. Booker. WBB Oct. 1988.
343.305 Annotation
Rethinking Refusal: Wisconsin's Implied Consent Law. Lotke. Wis. Law. July 1993.
343.307
343.307
Prior convictions, suspensions or revocations to be counted as offenses. 343.307(1)(a)
(a) Convictions for violations under
s. 346.63 (1), or a local ordinance in conformity with that section.
343.307(1)(b)
(b) Convictions for violations of a law of a federally recognized American Indian tribe or band in this state in conformity with
s. 346.63 (1).
343.307(1)(d)
(d) Convictions under the law of another jurisdiction that prohibits a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction's laws.
343.307(1)(e)
(e) Operating privilege suspensions or revocations under the law of another jurisdiction arising out of a refusal to submit to chemical testing.
343.307(2)
(2) The court shall count the following to determine the length of a revocation under
s. 343.305 (10) and to determine the penalty under
s. 346.65 (2j) and to determine the prohibited alcohol concentration under
s. 340.01 (46m):
343.307(2)(b)
(b) Convictions for violations of a law of a federally recognized American Indian tribe or band in this state in conformity with
s. 346.63 (1) or
(5).
343.307(2)(d)
(d) Convictions under the law of another jurisdiction that is in substantial conformity with
49 CFR 383.51 (b) Table 1, items (1) to (4).
343.307(2)(e)
(e) Convictions under the law of another jurisdiction that prohibits a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction's laws.
343.307(2)(f)
(f) Operating privilege suspensions or revocations under the law of another jurisdiction arising out of a refusal to submit to chemical testing.
343.307(3)
(3) If the same elements of the offense must be proven under a local ordinance or under a law of a federally recognized American Indian tribe or band in this state as under
s. 346.63 (1) (a),
(am), or
(b), any combination of
s. 346.63 (1) (a),
(am), or
(b), or
s. 346.63 (5), the local ordinance or the law of a federally recognized American Indian tribe or band in this state shall be considered to be in conformity with
s. 346.63 (1) (a),
(am), or
(b), any combination of
s. 346.63 (1) (a),
(am), or
(b), or
s. 346.63 (5), for purposes of
ss. 343.30 (1q) (b) 1.,
343.305 (10) (b) 1. and
346.65 (2) and
(2j).
343.307 Annotation
An Illinois court's placement of an OWI offender under court supervision is a conviction that is counted as a prior offense under sub. (1) (d) when charging an OWI suspect in Wisconsin. Placement under court supervision as a result of a determination that the defendant violated or failed to comply with the law in a court of original jurisdiction meets the definition of conviction under s. 340.01 (9r). State v. List, 2004 WI App 230,
277 Wis. 2d 836,
691 N.W.2d 366,
03-3149.
343.307 Annotation
This section controls over the definition of conviction in s. 340.01 (9r), a more general statute. Sub. (1) (d) lists the type of convictions under the law of another jurisdiction that are to be counted when determining the penalty to be imposed under s. 346.65 (2) and counts a conviction that prohibits a person from refusing chemical testing. Sub. (1) (e) separately and specifically provides only one type of revocation and only one type of suspension under the law of another jurisdiction that is to be counted when determining the penalty to be imposed pursuant to s. 346.65 (2): a revocation or suspension arising out of a refusal to submit to chemical testing. State v. Machgan, 2007 WI App 263,
306 Wis. 2d 752,
743 N.W.2d 832,
06-2836.
343.307 Annotation
An Illinois "zero tolerance" summary suspension, which may be imposed if a driver under age 21 has been arrested for any traffic violation, provided there is probable cause to believe the driver consumed some amount of alcohol and refuses testing or submits and the test reveals a blood-alcohol concentration greater than zero, does not count as a prior conviction under this section. State v. Carter, 2009 WI App 156,
321 Wis. 2d 719,
775 N.W.2d 297,
08-3144.
343.307 Annotation
The final phrase of sub. (1) (d), "as those or substantially similar terms are used in that jurisdiction's laws," indicates the broad scope of that provision. When determining a penalty, Wisconsin counts prior offenses committed in states with OWI statutes that differ significantly from Wisconsin's. "Substantially similar" simply emphasizes that the out-of-state statute need only prohibit conduct similar to the list of prohibited conduct in sub. (1) (d). State v. Puchacz, 2010 WI App 30,
323 Wis. 2d 741,
780 N.W.2d 536,
09-0840.
343.31
343.31
Revocation or suspension of licenses after certain convictions or declarations. 343.31(1)
(1) The department shall revoke a person's operating privilege upon receiving a record of conviction showing that the person has been convicted of any of the following offenses under a state law or under a local ordinance which is in conformity therewith or under a law of a federally recognized American Indian tribe or band in this state which is in conformity with state law:
343.31(1)(am)
(am) Injury by the operation of a vehicle while under the influence of an intoxicant, a controlled substance or 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 while the person has a detectable amount of a restricted controlled substance in his or her blood or has a prohibited alcohol concentration and which is criminal under
s. 346.63 (2).
343.31(1)(ar)
(ar) Injury 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 and which is criminal under
s. 346.63 (6).
343.31(1)(b)
(b) Upon conviction for operation of a motor vehicle while under the influence of an intoxicant, controlled substance, 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, in accordance with the order of the court.
343.31(1)(c)
(c) Any felony in the commission of which a motor vehicle is used.
343.31(1)(d)
(d) Failure to stop and render aid as required under the laws of this state in the event of a motor vehicle accident resulting in death of or personal injury to another or in serious property damage.
343.31(1)(g)
(g) Operating a motor vehicle without having furnished proof of financial responsibility when proof of financial responsibility is required.
343.31(2)
(2) The department shall revoke the operating privilege of any resident upon receiving notice of the conviction of such person in another jurisdiction for an offense therein which, if committed in this state, would have been cause for revocation under this section or for revocation under
s. 343.30 (1q). Such offenses shall include violation of any law of another jurisdiction that prohibits a person from using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction's laws. Upon receiving similar notice with respect to a nonresident, the department shall revoke the privilege of the nonresident to operate a motor vehicle in this state. Such revocation shall not apply to the operation of a commercial motor vehicle by a nonresident who holds a valid commercial driver license issued by another state.
343.31(2m)
(2m) The department may suspend or revoke, respectively, the operating privilege of any resident upon receiving notice of the conviction of that person under a law of another jurisdiction or a federally recognized American Indian tribe or band in this state for an offense which, if the person had committed the offense in this state and been convicted of the offense under the laws of this state, would have permitted suspension or revocation of the person's operating privilege under
s. 343.30 (1g). Upon receiving similar notice with respect to a nonresident, the department may suspend or revoke the privilege of the nonresident to operate a motor vehicle in this state. The suspension or revocation shall not apply to the operation of a commercial motor vehicle by a nonresident who holds a valid commercial driver license issued by another state. A suspension or revocation under this subsection shall be for any period not exceeding 6 months.
343.31(2r)
(2r) The department shall suspend a person's operating privilege upon receiving a record of conviction showing that the person has been convicted of perjury or the making of a false affidavit or the making of a false statement or certification to the department under this chapter or any other law relating to the ownership or operation of motor vehicles.
343.31(2s)
(2s) The department may suspend a person's operating privilege for 2 years upon receiving a record of conviction under
s. 973.137. If the department receives a record of conviction under
s. 973.137 or a notice of suspension under
s. 938.34 (14q) for a person whose license or operating privilege is currently suspended or revoked or for a person who does not currently possess a valid operator's license, the suspension is first effective on the date on which the person is first eligible for issuance, renewal, or reinstatement of an operator's license.
343.31(2u)
(2u) The department shall suspend the operating privilege of a person who has been issued an occupational license upon receiving a record of conviction showing that the person has been convicted of any of the following offenses.
343.31(2u)(b)
(b) Exceeding by 20 or more miles per hour any lawful or posted maximum speed limit.
343.31(2u)(c)
(c) Participating in any race or speed or endurance contest.
343.31(2x)
(2x) The department shall suspend a person's operating privilege upon receiving a record of a declaration under
s. 54.25 (2) (c) 1. d. that the person is incompetent to apply for an operator's license. The department may reinstate the person's operator's license upon receiving a record of a declaration that the person is no longer incompetent to apply for an operator's license under
s. 54.25 (2) (c) 1. d., if the person is otherwise qualified under this chapter to obtain an operator's license.
343.31(3)(a)(a) Except as otherwise provided in this subsection or
sub. (2m),
(2s), or
(2x), all revocations or suspensions under this section shall be for a period of one year.
343.31(3)(b)
(b) If the revocation results from a first conviction of operation of a motor vehicle while under the influence of an intoxicant, controlled substance, 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 and the conviction occurs in another jurisdiction, the period of revocation shall be 6 months.
343.31(3)(bm)
(bm) For any person convicted under a law of a federally recognized American Indian tribe or band in this state in conformity with
s. 346.63 (1):
343.31(3)(bm)1.
1. Except as provided in
subds. 3. and
4., the department shall revoke the person's operating privilege under this paragraph according to the number of previous suspensions, revocations or convictions that would be counted under
s. 343.307 (1). Suspensions, revocations and convictions arising out of the same incident shall be counted as one. If a person has a conviction, suspension or revocation for any offense that is counted under
s. 343.307 (1), that conviction, suspension or revocation shall count as a prior conviction, suspension or revocation under this subdivision.
343.31(3)(bm)2.
2. Except as provided in
subd. 3.,
4. or
4m., for the first conviction, the department shall revoke the person's operating privilege for not less than 6 months nor more than 9 months. If an Indian tribal court in this state revokes the person's privilege to operate a motor vehicle on tribal lands for not less than 6 months nor more than 9 months for the conviction specified in
par. (bm) (intro.), the department shall impose the same period of revocation. The person is eligible for an occupational license under
s. 343.10 at any time.
343.31(3)(bm)3.
3. Except as provided in
subd. 4m., 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, the department shall revoke the person's operating privilege for not less than one year nor more than 18 months. If an Indian tribal court in this state revokes the person's privilege to operate a motor vehicle on tribal lands for not less than one year nor more than 18 months for the conviction specified in
par. (bm) (intro.), the department shall impose the same period of revocation. After the first 60 days of the revocation period or, if the total number of convictions, suspensions, and revocations counted under this subdivision within any 5-year period equals 2 or more, after one year of the revocation period has elapsed, the person is eligible for an occupational license under
s. 343.10.
343.31(3)(bm)4.
4. Except as provided in
subd. 4m., if the number of convictions under
ss. 940.09 (1) and
940.25 in the person's lifetime, plus the total number of other suspensions, revocations and convictions counted under
s. 343.307 (1), equals 3 or more, the department shall revoke the person's operating privilege for not less than 2 years nor more than 3 years. If an Indian tribal court in this state revokes the person's privilege to operate a motor vehicle on tribal lands for not less than 2 years nor more than 3 years for the conviction specified in
par. (bm) (intro.), the department shall impose the same period of revocation. After one year of the revocation period has elapsed, the person is eligible for an occupational license under
s. 343.10.
343.31(3)(bm)4m.
4m. If the Indian tribal court that convicted the person determined that there was a minor passenger under 16 years of age in the motor vehicle at the time of the incident that gave rise to the conviction, the applicable minimum and maximum revocation periods under
subd. 2.,
3. or
4. for the conviction are doubled.
343.31(3)(bm)5.
5. The time period under this paragraph shall be measured from the dates of the refusals or violations which resulted in the suspensions, revocations or convictions.
343.31(3)(c)
(c) Any person convicted under
s. 940.09 of causing the death of another or of an unborn child by the operation or handling of a motor vehicle shall have his or her operating privilege revoked for 5 years. If there was a minor passenger under 16 years of age or an unborn child, as defined in
s. 939.75 (1), in the motor vehicle at the time of the violation that gave rise to the conviction under
s. 940.09, the revocation period is 10 years.
343.31(3)(d)
(d) Any person convicted of knowingly fleeing or attempting to elude a traffic officer under
s. 346.04 (3) shall have his or her operating privilege revoked as follows:
343.31(3)(d)1.
1. If the offense did not result in bodily harm to another or damage to the property of another, for 6 months.
343.31(3)(d)2.
2. If the offense results in bodily harm to another or causes damage to the property of another, as provided in
par. (a).
343.31(3)(d)3.
3. If the offense results in great bodily harm to another, for 2 years.
343.31(3)(d)4.
4. If the offense results in the death of another, for 5 years.
343.31(3)(e)
(e) Any person convicted under
s. 346.63 (2) shall have his or her operating privilege revoked for not less than one year nor more than 2 years. 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), the minimum and maximum revocation periods are doubled.
