343.303 Annotation
A preliminary breath test result is not determinative of probable cause to arrest for driving while intoxicated. A low test result does not void the grounds for arrest. Dane County v. Sharpee,
154 Wis. 2d 515,
453 N.W.2d 508 (Ct. App. 1990).
343.303 Annotation
The bar of preliminary breath tests under this section is limited to proceedings related to arrests for offenses contemplated under this statute including those related to motor vehicles and intoxication. State v. Beaver,
181 Wis. 2d 959,
512 N.W.2d 254 (Ct. App. 1994).
343.303 Annotation
This section bars the evidentiary use of preliminary breath test results in motor vehicle violation cases, but not in other actions. Prosecutors who wish to rely on PBT results are required to present evidence of the device's scientific accuracy as a foundation for admission. State v. Doerr,
229 Wis. 2d 616,
599 N.W.2d 897 (Ct. App. 1999),
98-1047.
343.303 Annotation
"Probable cause to believe" refers to a quantum of evidence greater than reasonable suspicion to make an investigative stop, but less than probable cause to make an arrest. County of Jefferson v. Renz,
231 Wis. 2d 293,
603 N.W.2d 541 (1999),
97-3512.
343.303 Annotation
Blood may be drawn in a search incident to an arrest for a non-drunk-driving offense if the police reasonably suspect that the defendant's blood contains evidence of a crime. This section does not prohibit the consideration of a suspect's refusal to submit to a PBT for purposes of determining whether a warrantless involuntary draw of the suspect's blood was supported by reasonable suspicion. State v. Repenshek,
2004 WI App 229,
277 Wis. 2d 780,
691 N.W.2d 369,
03-3089 343.303 Annotation
A preliminary breath test may be requested when an officer has a basis to justify an investigative stop but has not established probable cause to justify an arrest. Under the facts of this case, the officer would have been justified in asking the defendant to take a preliminary breath test without asking him to perform any field-sobriety tests. That the defendant successfully completed all properly administered field-sobriety tests did not subtract from the common-sense view that the defendant may have had an impermissible blood-alcohol level. State v. Felton,
2012 WI App 114,
344 Wis. 2d 483,
824 N.W.2d 871,
11-2119.
343.303 Annotation
Under
State v. St. George,
2002 WI 50, for a defendant to establish a constitutional right to the admissibility of proffered expert testimony, the defendant must satisfy a two-part inquiry determining whether the evidence is clearly central to the defense and the exclusion of the evidence is arbitrary and disproportionate to the purpose of the rule of exclusion, so that exclusion undermines fundamental elements of the defendant's defense. In an OWI prosecution, even if a defendant establishes a constitutional right to present an expert opinion that is based in part on PBT results, the right to do so is outweighed by the state's compelling interest to exclude that evidence. State v. Fischer,
2010 WI 6,
322 Wis. 2d 265,
778 N.W.2d 629,
07-1898. But see Fischer v. Ozaukee County Circuit Court,
741 F. Supp. 2d 944 (2010).
343.303 Annotation
Probable cause exists to request a preliminary breath test sample when the driver is known to be subject to a .02 prohibited alcohol content standard, the officer knows it would take very little alcohol for the driver to exceed that limit, and the officer smells alcohol on the driver. State v. Goss,
2011 WI 104,
338 Wis. 2d 72,
806 N.W.2d 918,
10-1113.
343.303 Annotation
The Wisconsin Supreme Court's decision in
Fischer affirming the exclusion of the defendant's expert's testimony using PBT results involved an unreasonable application of federal law as determined by the United States Supreme Court. Fischer v. Ozaukee County Circuit Court,
741 F. Supp. 2d 944 (2010).
343.305
343.305
Tests for intoxication; administrative suspension and court-ordered revocation. 343.305(1)(b)
(b) "Drive" means the exercise of physical control over the speed and direction of a motor vehicle while it is in motion.
343.305(1)(c)
(c) "Operate" means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.
343.305(2)
(2) Implied consent. Any person who is on duty time with respect to a commercial motor vehicle or drives or operates a motor vehicle upon the public highways of this state, or in those areas enumerated in
s. 346.61, is deemed to have given consent to one or more tests of his or her breath, blood or urine, for the purpose of determining the presence or quantity in his or her blood or breath, of alcohol, controlled substances, controlled substance analogs or other drugs, or any combination of alcohol, controlled substances, controlled substance analogs and other drugs, when requested to do so by a law enforcement officer under
sub. (3) (a) or
(am) or when required to do so under
sub. (3) (ar) or
(b). Any such tests shall be administered upon the request of a law enforcement officer. The law enforcement agency by which the officer is employed shall be prepared to administer, either at its agency or any other agency or facility, 2 of the 3 tests under
sub. (3) (a),
(am), or
(ar), and may designate which of the tests shall be administered first.
343.305(3)(a)(a) Upon arrest of a person for violation of
s. 346.63 (1),
(2m) or
(5) or a local ordinance in conformity therewith, or for a violation of
s. 346.63 (2) or
(6) or
940.25, or
s. 940.09 where the offense involved the use of a vehicle, or upon arrest subsequent to a refusal under
par. (ar), a law enforcement officer may request the person to provide one or more samples of his or her breath, blood or urine for the purpose specified under
sub. (2). Compliance with a request for one type of sample does not bar a subsequent request for a different type of sample.
343.305(3)(am)
(am) Prior to arrest, a law enforcement officer may request the person to provide one or more samples of his or her breath, blood or urine for the purpose specified under
sub. (2) whenever a law enforcement officer detects any presence of alcohol, a controlled substance, a controlled substance analog or other drug, or a combination thereof, on a person driving or operating or on duty time with respect to a commercial motor vehicle or has reason to believe the person is violating or has violated
s. 346.63 (7). Compliance with a request for one type of sample does not bar a subsequent request for a different type of sample. For the purposes of this paragraph, "law enforcement officer" includes inspectors in the performance of duties under
s. 110.07 (3).
343.305(3)(ar)1.1. If a person is the operator of a vehicle that is involved in an accident that causes substantial bodily harm, as defined in
s. 939.22 (38), to any person, and a law enforcement officer detects any presence of alcohol, a controlled substance, a controlled substance analog or other drug, or a combination thereof, the law enforcement officer may request the operator to provide one or more samples of his or her breath, blood, or urine for the purpose specified under
sub. (2). Compliance with a request for one type of sample does not bar a subsequent request for a different type of sample. A person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent under this subdivision and one or more samples specified in
par. (a) or
(am) may be administered to the person. If a person refuses to take a test under this subdivision, he or she may be arrested under
par. (a).
343.305(3)(ar)2.
2. If a person is the operator of a vehicle that is involved in an accident that causes the death of or great bodily harm to any person and the law enforcement officer has reason to believe that the person violated any state or local traffic law, the officer may request the operator to provide one or more samples of his or her breath, blood, or urine for the purpose specified under
sub. (2). Compliance with a request for one type of sample does not bar a subsequent request for a different type of sample. A person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent under this subdivision and one or more samples specified in
par. (a) or
(am) may be administered to the person. If a person refuses to take a test under this subdivision, he or she may be arrested under
par. (a).
343.305(3)(b)
(b) A person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent under this subsection, and if a law enforcement officer has probable cause to believe that the person has violated
s. 346.63 (1),
(2m) 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, or detects any presence of alcohol, controlled substance, controlled substance analog or other drug, or a combination thereof, on a person driving or operating or on duty time with respect to a commercial motor vehicle or has reason to believe the person has violated
s. 346.63 (7), one or more samples specified in
par. (a) or
(am) may be administered to the person.
343.305(3)(c)
(c) This section does not limit the right of a law enforcement officer to obtain evidence by any other lawful means.
343.305(4)
(4) Information. At the time that a chemical test specimen is requested under
sub. (3) (a),
(am), or
(ar), the law enforcement officer shall read the following to the person from whom the test specimen is requested:
"You have either been arrested for an offense that involves driving or operating a motor vehicle while under the influence of alcohol or drugs, or both, or you are the operator of a vehicle that was involved in an accident that caused the death of, great bodily harm to, or substantial bodily harm to a person, or you are suspected of driving or being on duty time with respect to a commercial motor vehicle after consuming an intoxicating beverage.
This law enforcement agency now wants to test one or more samples of your breath, blood or urine to determine the concentration of alcohol or drugs in your system. If any test shows more alcohol in your system than the law permits while driving, your operating privilege will be suspended. If you refuse to take any test that this agency requests, your operating privilege will be revoked and you will be subject to other penalties. The test results or the fact that you refused testing can be used against you in court.
If you take all the requested tests, you may choose to take further tests. You may take the alternative test that this law enforcement agency provides free of charge. You also may have a test conducted by a qualified person of your choice at your expense. You, however, will have to make your own arrangements for that test.
If you have a commercial driver license or were operating a commercial motor vehicle, other consequences may result from positive test results or from refusing testing, such as being placed out of service or disqualified."
343.305(5)
(5) Administering the test; additional tests. 343.305(5)(a)(a) If the person submits to a test under this section, the officer shall direct the administering of the test. A blood test is subject to
par. (b). The person who submits to the test is permitted, upon his or her request, the alternative test provided by the agency under
sub. (2) or, at his or her own expense, reasonable opportunity to have any qualified person of his or her own choosing administer a chemical test for the purpose specified under
sub. (2). If the person has not been requested to provide a sample for a test under
sub. (3) (a),
(am), or
(ar), the person may request a breath test to be administered by the agency or, at his or her own expense, reasonable opportunity to have any qualified person administer any test specified under
sub. (3) (a),
(am), or
(ar). The failure or inability of a person to obtain a test at his or her own expense does not preclude the admission of evidence of the results of any test administered under
sub. (3) (a),
(am), or
(ar). If a person requests the agency to administer a breath test and if the agency is unable to perform that test, the person may request the agency to perform a test under
sub. (3) (a),
(am), or
(ar) that it is able to perform. The agency shall comply with a request made in accordance with this paragraph.
343.305(5)(b)
(b) Blood may be withdrawn from the person arrested for violation of
s. 346.63 (1),
(2),
(2m),
(5), or
(6) or
940.25, or
s. 940.09 where the offense involved the use of a vehicle, or a local ordinance in conformity with
s. 346.63 (1),
(2m), or
(5), or as provided in
sub. (3) (am) or
(b) to determine the presence or quantity of alcohol, a controlled substance, a controlled substance analog, or any other drug, or any combination of alcohol, controlled substance, controlled substance analog, and any other drug in the blood only by a physician, registered nurse, medical technologist, physician assistant, phlebotomist, or other medical professional who is authorized to draw blood, or person acting under the direction of a physician.
343.305(5)(c)
(c) A person acting under
par. (b), the employer of any such person and any hospital where blood is withdrawn by any such person have immunity from civil or criminal liability under
s. 895.53.
343.305(5)(d)
(d) At the trial of any civil or criminal action or proceeding arising out of the acts committed by a person alleged to have been driving or operating a motor vehicle while under the influence of an intoxicant, a controlled substance, a controlled substance analog or any other drug, or under the influence of any combination of alcohol, a controlled substance, a controlled substance analog and 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 having a prohibited alcohol concentration, or alleged to have been driving or operating or on duty time with respect to a commercial motor vehicle while having an alcohol concentration above 0.0 or possessing an intoxicating beverage, regardless of its alcohol content, or within 4 hours of having consumed or having been under the influence of an intoxicating beverage, regardless of its alcohol content, or of having an alcohol concentration of 0.04 or more, the results of a test administered in accordance with this section are admissible on the issue of whether the person was under the influence of an intoxicant, a controlled substance, a controlled substance analog or any other drug, or under the influence of any combination of alcohol, a controlled substance, a controlled substance analog and 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 any issue relating to the person's alcohol concentration. Test results shall be given the effect required under
s. 885.235.
343.305(5)(e)
(e) At the trial of any civil or criminal action or proceeding arising out of the acts committed by a person alleged to have been driving or operating a motor vehicle while having a detectable amount of a restricted controlled substance in his or her blood, the results of a blood test administered in accordance with this section are admissible on any issue relating to the presence of a detectable amount of a restricted controlled substance in the person's blood. Test results shall be given the effect required under
s. 885.235.
343.305(6)(a)(a) Chemical analyses of blood or urine to be considered valid under this section shall have been performed substantially according to methods approved by the laboratory of hygiene and by an individual possessing a valid permit to perform the analyses issued by the department of health services. The department of health services shall approve laboratories for the purpose of performing chemical analyses of blood or urine for alcohol, controlled substances or controlled substance analogs and shall develop and administer a program for regular monitoring of the laboratories. A list of approved laboratories shall be provided to all law enforcement agencies in the state. Urine specimens are to be collected by methods specified by the laboratory of hygiene. The laboratory of hygiene shall furnish an ample supply of urine and blood specimen containers to permit all law enforcement officers to comply with the requirements of this section.
343.305(6)(b)
(b) The department of transportation shall approve techniques or methods of performing chemical analysis of the breath and shall:
343.305(6)(b)1.
1. Approve training manuals and courses throughout the state for the training of law enforcement officers in the chemical analysis of a person's breath;
343.305(6)(b)2.
2. Certify the qualifications and competence of individuals to conduct the analysis;
343.305(6)(b)3.
3. Have trained technicians, approved by the secretary, test and certify the accuracy of the equipment to be used by law enforcement officers for chemical analysis of a person's breath under
sub. (3) (a),
(am), or
(ar) before regular use of the equipment and periodically thereafter at intervals of not more than 120 days; and
343.305(6)(b)4.
4. Issue permits to individuals according to their qualifications.
343.305 Cross-reference
Cross-reference: See also ch.
Trans 311, Wis. adm. code.
343.305(6)(bm)
(bm) Any relevant instruction, as defined in
s. 101.02 (24) (a) 1., that an applicant for an approval, certification, or permit under
par. (b) has obtained in connection with any military service, as defined in
s. 111.32 (12g), counts toward satisfying any requirement for instruction for an approval, certification, or permit under
par. (b) if the applicant demonstrates to the satisfaction of the department of transportation that the instruction obtained by the applicant is substantially equivalent to the instruction required for the approval, certificate, or permit under
par. (b).
343.305(6)(c)
(c) For purposes of this section, if a breath test is administered using an infrared breath-testing instrument:
343.305(6)(c)1.
1. The test shall consist of analyses in the following sequence: one adequate breath sample analysis, one calibration standard analysis, and a 2nd, adequate breath sample analysis.
343.305(6)(c)2.
2. A sample is adequate if the instrument analyzes the sample and does not indicate the sample is deficient.
343.305(6)(c)3.
3. Failure of a person to provide 2 separate, adequate breath samples in the proper sequence constitutes a refusal.
343.305(6)(d)
(d) The department of transportation may promulgate rules pertaining to the calibration and testing of preliminary breath screening test devices.
343.305(6)(e)1.1. In this paragraph, "licensor" means the department of health services or, with respect to permits issued under
par. (b) 4., the department of transportation.
343.305(6)(e)2.
2. In addition to any other information required by the licensor, an application for a permit or laboratory approval under this subsection shall include the following:
343.305(6)(e)2.a.
a. Except as provided in
subd. 2. am., in the case of an individual, the individual's social security number.
343.305(6)(e)2.am.
am. In the case of an individual who does not have a social security number, a statement made or subscribed under oath or affirmation that the applicant does not have a social security number. The form of the statement shall be prescribed by the department of children and families. A permit or approval that is issued or renewed under this section in reliance on a statement submitted under this
subd. 2. am. is invalid if the statement is false.
343.305(6)(e)2.b.
b. In the case of a person who is not an individual, the person's federal employer identification number.
343.305(6)(e)3.a.a. The licensor shall deny an application for the issuance or, if applicable, renewal of a permit or laboratory approval if the information required under
subd. 2. a.,
am. or
b. is not included in the application.
343.305(6)(e)3.b.
b. The licensor may not disclose any information received under
subd. 2. a. or
b. except to the department of children and families for purposes of administering
s. 49.22, the department of revenue for the sole purpose of requesting certifications under
s. 73.0301, and the department of workforce development for the sole purpose of requesting certifications under
s. 108.227.
343.305(6)(e)4.
4. A permit under this subsection shall be denied, restricted, limited or suspended if the applicant or licensee is an individual who is delinquent in making court-ordered payments of child or family support, maintenance, birth expenses, medical expenses or other expenses related to the support of a child or former spouse, as provided in a memorandum of understanding entered into under
s. 49.857.
343.305(6)(e)5.
5. If the licensor is the department of health services, the department of health services shall deny an application for the issuance or renewal of a permit or laboratory approval, or revoke a permit or laboratory approval already issued, if the department of revenue certifies under
s. 73.0301 that the applicant or holder of the permit or laboratory approval is liable for delinquent taxes. An applicant for whom a permit or laboratory approval is not issued or renewed, or an individual or laboratory whose permit or laboratory approval is revoked, under this subdivision for delinquent taxes is entitled to a notice under
s. 73.0301 (2) (b) 1. b. and a hearing under
s. 73.0301 (5) (a) but is not entitled to any other notice or hearing under this subsection.
343.305(6)(e)6.
6. If the licensor is the department of health services, the department of health services shall deny an application for the issuance or renewal of a permit or laboratory approval, or revoke a permit or laboratory approval already issued, if the department of workforce development certifies under
s. 108.227 that the applicant or holder of the permit or laboratory approval is liable for delinquent unemployment insurance contributions. An applicant for whom a permit or laboratory approval is not issued or renewed, or an individual or laboratory whose permit or laboratory approval is revoked, under this subdivision for delinquent unemployment insurance contributions is entitled to a notice under
s. 108.227 (2) (b) 1. b. and a hearing under
s. 108.227 (5) (a) but is not entitled to any other notice or hearing under this subsection.
343.305(7)
(7) Chemical test; administrative suspension. 343.305(7)(a)(a) If a person submits to chemical testing administered in accordance with this section and any test results indicate the presence of a detectable amount of a restricted controlled substance in the person's blood or a prohibited alcohol concentration, the law enforcement officer shall report the results to the department. The person's operating privilege is administratively suspended for 6 months.
343.305(7)(b)
(b) If a person who was driving or operating or on duty time with respect to a commercial motor vehicle submits to chemical testing administered in accordance with this section and any test results indicate an alcohol concentration above 0.0, the law enforcement officer shall issue a citation for violation of
s. 346.63 (7) (a) 1., issue citations for such other violations as may apply and issue an out-of-service order to the person for the 24 hours after the testing, and report both the out-of-service order and the test results to the department in the manner prescribed by the department. If the person is a nonresident, the department shall report issuance of the out-of-service order to the driver licensing agency in the person's home jurisdiction.
343.305(8)
(8) Chemical test; administrative suspension; administrative and judicial review. 343.305(8)(a)(a) The law enforcement officer shall notify the person of the administrative suspension under
sub. (7) (a). The notice shall advise the person that his or her operating privilege will be administratively suspended and that he or she has the right to obtain administrative and judicial review under this subsection. This notice of administrative suspension serves as a 30-day temporary license. An administrative suspension under
sub. (7) (a) becomes effective at the time the 30-day temporary license expires. The officer shall submit or mail a copy of the notice to the department.
343.305(8)(am)
(am) The law enforcement officer shall provide the person with a separate form for the person to use to request the administrative review under this subsection. The form shall clearly indicate how to request an administrative review and shall clearly notify the person that this form must be submitted within 10 days from the notice date indicated on the form or the person's hearing rights will be deemed waived. The form shall, in no less than 16-point boldface type, be titled: IMPORTANT NOTICE — RESPOND WITHIN TEN (10) DAYS.
343.305(8)(b)1.1. Within 10 days after the notification under
par. (a), or, if the notification is by mail, within 13 days, excluding Saturdays, Sundays and holidays, after the date of the mailing, the person may request, in writing, that the department review the administrative suspension. The review procedure is not subject to
ch. 227. Unless the hearing is by remote communication mechanism or record review, the department shall hold the hearing on the matter in the county in which the offense allegedly occurred or at the nearest office of the department if the offense allegedly occurred in a county in which the department does not maintain an office. The department, upon request of the person, may conduct a hearing under this paragraph by telephone, video conference, or other remote communication mechanism or by review of only the record submitted by the arresting officer and written arguments. The department shall hold a hearing regarding the administrative suspension within 30 days after the date of notification under
par. (a). The person may present evidence and may be represented by counsel. The arresting officer need not appear at the administrative hearing unless subpoenaed under
s. 805.07 and need not appear in person at a hearing conducted by remote communication mechanism or record review, but he or she must submit a copy of his or her report and the results of the chemical test to the hearing examiner.
343.305(8)(b)2.
2. The administrative hearing under this paragraph is limited to the following issues:
343.305(8)(b)2.b.
b. Whether the person was informed of the options regarding tests under this section as required under
sub. (4).
343.305(8)(b)2.bm.
bm. Whether the person had a prohibited alcohol concentration or a detectable amount of a restricted controlled substance in his or her blood at the time the offense allegedly occurred.
343.305(8)(b)2.c.
c. Whether one or more tests were administered in accordance with this section.
343.305(8)(b)2.d.
d. If one or more tests were administered in accordance with this section, whether each of the test results for those tests indicate the person had a prohibited alcohol concentration or a detectable amount of a restricted controlled substance in his or her blood.
343.305(8)(b)2.f.
f. Whether the person was driving or operating a commercial motor vehicle when the offense allegedly occurred.
343.305(8)(b)2.g.
g. Whether the person had a valid prescription for methamphetamine or one of its metabolic precursors or gamma-hydroxybutyric acid or delta-9-tetrahydrocannabinol in a case in which
subd. 4m. a. and
b. apply.
343.305(8)(b)3.
3. The hearing examiner shall conduct the administrative hearing in an informal manner. No testimony given by any witness may be used in any subsequent action or proceeding. The hearing examiner may permit testimony by telephone if the site of the administrative hearing is equipped with telephone facilities to allow multiple party conversations.
343.305(8)(b)4.
4. The hearing examiner shall consider and determine the reliability of all of the evidence presented at the administrative hearing. Statements and reports of law enforcement officers are subject to the same standards of credibility applied to all other evidence presented.
343.305(8)(b)4m.
4m. If, at the time the offense allegedly occurred, all of the following apply, the hearing officer shall determine whether the person had a valid prescription for methamphetamine or one of its metabolic precursors, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol:
343.305(8)(b)4m.a.
a. A blood test administered in accordance with this section indicated that the person had a detectable amount of methamphetamine, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol but did not have a detectable amount of any other restricted controlled substance in his or her blood.
343.305(8)(b)4m.b.
b. No test administered in accordance with this section indicated that the person had a prohibited alcohol concentration.
343.305(8)(b)5.
5. If the hearing examiner finds that any of the following applies, the examiner shall order that the administrative suspension of the person's operating privilege be rescinded without payment of any fee under
s. 343.21 (1) (j),
(jr), or
(n):
343.305(8)(b)5.a.
a. The criteria for administrative suspension have not been satisfied.
343.305(8)(b)5.b.
b. The person did not have a prohibited alcohol concentration or a detectable amount of a restricted controlled substance in his or her blood at the time the offense allegedly occurred.
343.305(8)(b)5.c.
c. In a case in which
subd. 4m. a. and
b. apply, the person had a valid prescription for methamphetamine or one of its metabolic precursors, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol.
343.305(8)(b)6.
6. If the hearing examiner finds that all of the following apply, the administrative suspension shall continue regardless of the type of vehicle driven or operated at the time of the violation:
343.305(8)(b)6.b.
b. The person had a prohibited alcohol concentration or a detectable amount of a restricted controlled substance in his or her blood at the time the offense allegedly occurred.
343.305(8)(b)6.c.
c. In a case in which
subd. 4m. a. and
b. apply, the person did not have a valid prescription for methamphetamine or one of its metabolic precursors, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol.
