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), 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, or under s. 973.05 (3) (a) if that person's fine resulted from violating s. 346.63 (1) (am) and the motor vehicle that the person was driving or operating was a commercial motor vehicle, 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) (am) 2., 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) (am) 1. to representation by counsel under ch. 977.
346.65(2j) (2j)
346.65(2j)(am)(am) Any person violating s. 346.63 (5):
346.65(2j)(am)1. 1. Shall forfeit not less than $150 nor more than $300 except as provided in subd. 2. or 3. or par. (d).
346.65(2j)(am)2. 2. Except as provided in pars. (bm) and (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)(am)3. 3. Except as provided in pars. (cm), (cr), and (d), shall be fined not less than $600 nor more than $2,000 and imprisoned for not less than 45 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)(bm) (bm) In any county that opts to offer a reduced minimum period of imprisonment for the successful completion of a probation period that includes alcohol and other drug treatment, if the number of convictions under ss. 940.09 (1) and 940.25 in the person's lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1) within a 10-year period, equals 2, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one, the fine shall be the same as under par. (am) 2., but the period of imprisonment shall be not less than 5 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 5 nor more than 7 days. A person may be sentenced under this paragraph or under par. (cm) or (cr) or sub. (2) (bm), (cm), or (dm) or (3r) once in his or her lifetime.
346.65(2j)(cm) (cm) In any county that opts to offer a reduced minimum period of imprisonment for the successful completion of a probation period that includes alcohol and other drug treatment, if the number of convictions under ss. 940.09 (1) and 940.25 in the person's lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1) equals 3, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one, the fine shall be the same as under par. (am) 3., but the period of imprisonment shall be not less than 45 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 14 days. A person may be sentenced under this paragraph or under par. (bm) or (cr) or sub. (2) (bm), (cm), or (dm) or (3r) once in his or her lifetime.
346.65(2j)(cr) (cr) In any county that opts to offer a reduced minimum period of imprisonment for the successful completion of a probation period that includes alcohol and other drug treatment, if the number of convictions under ss. 940.09 (1) and 940.25 in the person's lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1) equals 4, and sub. (2) (am) 4m. does not apply, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one, the fine shall be the same as under par. (am) 3., but the period of imprisonment shall be not less than 60 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 29 days. A person may be sentenced under this paragraph or under par. (bm) or (cm) or sub. (2) (bm), (cm), or (dm) or (3r) once in his or her lifetime.
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. (am) 1., 2., or 3. for the conviction are doubled. An offense under s. 346.63 (5) that subjects a person to a penalty under par. (am) 3. 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) (2m)
346.65(2m)(a)(a) In imposing a sentence under sub. (2) for a violation of s. 346.63 (1) (am) or (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 amount of alcohol in the person's blood or urine or the amount of a restricted controlled substance in the person's blood is known, the court shall consider that amount 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(2m)(b) (b) The court shall consider a report submitted under s. 85.53 (2) (d) when imposing a sentence under sub. (2), (2q) or (3m).
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 person shall be fined $400.
346.65(2r) (2r)
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) (2u)
346.65(2u)(a)(a) Any person violating s. 346.63 (7) shall forfeit $10.
346.65(2u)(b) (b) Upon his or her arrest for a violation of s. 346.63 (7), a person shall be issued an out-of-service order for a 24-hour period by the arresting officer under s. 343.305 (7) (b) or (9) (am).
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. (3p) or (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(3p) (3p) Any person violating s. 346.63 (2) or (6) is guilty of a Class H felony if the person has one or more prior convictions, suspensions, or revocations, as counted under s. 343.307 (1). 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 and the applicable maximum fines or periods of imprisonment for the conviction are doubled.
346.65(3r) (3r) In any county that opts to offer a reduced minimum period of imprisonment for the successful completion of a probation period that includes alcohol and other drug treatment, 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. This subsection does not apply to a person sentenced under sub. (3p).
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) (4r)
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(5) (5) Except as provided in sub. (5m), any person violating s. 346.62 (4) is guilty of a Class I felony.
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(7) (7) A person convicted under sub. (2) (am) 2., 3., 4., 4m., 5., 6., or 7. or (2j) (am) 2. or 3. shall be required to remain in the county jail for not less than a 48-consecutive-hour period.
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 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.
346.65 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 Although the defendant's Michigan and Wisconsin convictions stemmed from one continuous stint of driving, they arose from two separate incidents — one incident in Michigan and one incident in Wisconsin. Because the extraterritorial jurisdiction exceptions in Wisconsin and Michigan were not applicable to the defendant's separate convictions in Wisconsin and Michigan, each state had jurisdiction only over his act of driving while intoxicated within each state's own boundaries. State v. Holder, 2011 WI App 116, 337 Wis. 2d 79, 803 N.W.2d 82, 09-2952.
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 of transportation 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.
346.65 Annotation Wisconsin's New OWI Law. Mishlove & Stuckert. Wis. Law. June 2010.
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), 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 $365 in addition to the fine or forfeiture, plus costs, fees, and other surcharges imposed under ch. 814.
346.655(2) (2)
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 40 percent 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 40 percent 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 60 percent 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 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.
subch. XI of ch. 346 SUBCHAPTER XI
ACCIDENTS AND ACCIDENT REPORTS
346.66 346.66 Applicability of sections relating to accidents and accident reporting.
346.66(1) (1)
346.66(1)(a) (a) 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.
346.66(1)(b) (b) Except as provided in sub. (2), ss. 346.67 to 346.70 do not apply to private parking areas at farms or single-family residences.
346.66(1)(c) (c) Sections 346.67 to 346.70 do not apply to accidents involving only snowmobiles, all-terrain vehicles, utility terrain vehicles, or vehicles propelled by human power or drawn by animals.
346.66(2) (2)
346.66(2)(a)(a) Sections 346.67, 346.68, and 346.69 apply to the operator of a vehicle that, whether by operator intention or lack of control, departs a highway or premises described in sub. (1) (a) immediately prior to an accident if the accident does not occur on real property owned or leased by the operator.
346.66(2)(b) (b) Sections 346.675 and 346.70 apply to an accident described in par. (a).
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
346.67(1)(b) (b) The operator shall, upon request and if available, exhibit his or her operator's license to the person struck or to the operator or occupant of or person attending any vehicle collided with; and
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