346.63 Annotation
By consenting to the taking of a blood sample, the defendant also consented to the chemical analysis of the sample. Those 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.
346.63 Annotation
Probation is permitted under s. 973.09 (1) (d) for 4th and subsequent OWI violations, as long as the probation requires confinement for at least the mandatory minimum time period under this section. State v. Eckola,
2001 WI App 295,
249 Wis. 2d 276,
638 N.W.2d 903,
01-1044.
346.63 Annotation
A warrantless nonconsensual blood draw from a person arrested with probable cause for drunk driving is constitutional under the exigent circumstances exception to the warrant requirement of the 4th amendment, even if the person offers to submit to a chemical test other than the blood test chosen by law enforcement, provided that the blood draw complies with the factors enumerated in
Bohling. State v. Krajewski,
2002 WI 97,
255 Wis. 2d 98,
648 N.W.2d 385,
99-3165.
346.63 Annotation
The analysis of blood taken in a warrantless nonconsensual draw, constitutional under
Krajewski, is the examination of evidence obtained pursuant to a valid search and not a second search requiring a warrant. State v. Riedel,
2003 WI App 18,
259 Wis. 2d 921,
656 N.W.2d 789,
02-1772.
346.63 Annotation
Evidence from a warrantless nonconsensual blood draw is admissible when: 1) the blood is drawn to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation; 2) there is a clear indication that the blood draw will produce evidence of intoxication; 3) the method used to take the blood sample is reasonable and performed in a reasonable manner; and 4) the arrestee presents no reasonable objection to the blood draw. In the absence of an arrest, probable cause to believe blood currently contains evidence of a drunk-driving-related violation satisfies the first and second prong. State v. Erickson,
2003 WI App 43,
260 Wis. 2d 279,
659 N.W.2d 407,
01-3367.
346.63 Annotation
A DOT certified driving transcript was admissible evidence that established the defendant's repeater status as an element of the PAC offense beyond a reasonable doubt. State v. Van Riper,
2003 WI App 237,
267 Wis. 2d 759,
672 N.W.2d 156,
03-0385.
346.63 Annotation
The rapid dissipation of alcohol in the bloodstream of an individual arrested for drunk driving is an exigency that justifies the warrantless nonconsensual test of the individual's blood, so long as the test satisfies the 4 factors enumerated in
Bohling. A presumptively valid chemical sample of the defendant's breath does not extinguish the exigent circumstances justifying a warrantless blood draw. The nature of the evidence sought, (the rapid dissipation of alcohol from the bloodstream) not the existence of other evidence, determines the exigency. State v. Faust,
2004 WI 99,
274 Wis. 2d 183,
682 N.W.2d 371,
03-0952.
346.63 Annotation
Field sobriety tests are not scientific tests but are observational tools that law enforcement officers commonly use to assist them in discerning various indicia of intoxication, the perception of which is necessarily subjective. The procedures an officer employs in determining probable cause for intoxication go to the weight of the evidence, not its admissibility. City of West Bend v. Wilkens,
2005 WI App 36,
278 Wis. 2d 643,
693 N.W.2d 324,
04-1871.
346.63 Annotation
The per se ban on driving or operating a motor vehicle with a detectable amount of a restricted controlled substance in one's blood under sub. (1) (am) bears a reasonable and rational relationship to the goal of regulating the safety of roadways and is not fundamentally unfair such that there is a due process violation, nor does the statute offend principles of equal protection. State v. Smet,
2005 WI App 263,
288 Wis. 2d 525,
709 N.W.2d 474,
05-0690.
346.63 Annotation
A defendant was not operating a vehicle under this section by merely sitting in the driver's seat of a parked vehicle, although the engine was running, when the uncontested evidence showed that the defendant was not the person who left the engine running, had never physically manipulated or activated the controls necessary to put the vehicle in motion, and there was no circumstantial evidence that the defendant recently operated the vehicle, while another person had operated the vehicle. Village of Cross Plains v. Haanstad,
2006 WI 16,
288 Wis. 2d 573,
709 N.W.2d 447,
04-2232.
346.63 Annotation
Weaving within a single traffic lane does not alone give rise to the reasonable suspicion necessary to conduct an investigative stop of a vehicle. The reasonableness of a stop must be determined based on the totality of the facts and circumstances. State v. Post,
2007 WI 60,
301 Wis. 2d 1,
733 N.W.2d 634,
05-2778.
346.63 Annotation
Circumstantial evidence may be used to prove operation of a motor vehicle. While the motor in this case was not running, the keys were in the ignition and the parking and dash lights were on. Even absent a running motor, the jury was entitled to consider the circumstantial evidence to determine how and when the car arrived where it did and whether it was the defendant who operated it. State v. Mertes,
2008 WI App 179,
315 Wis. 2d 756,
762 N.W.2d 813,
07-2757.
346.63 Annotation
Although evidence of intoxicant usage, such as odors, an admission, or containers, ordinarily exists in drunk driving cases and strengthens the existence of probable cause, such evidence is not required. The totality of the circumstances is the test. State v. Lange,
2009 WI 49,
317 Wis. 2d 383,
766 N.W.2d 551,
08-0882.
346.63 Annotation
The legislature meant to make the crime of operating a motor vehicle with a prohibited alcohol concentration (PAC) one that requires a person to have the PAC at the time he or she drove or operated the motor vehicle. A defendant who has two countable OWI convictions at the time of arrest has a BAC limit of 0.08 percent. Accordingly, the state could not properly charge him with a PAC based on a blood alcohol content (BAC) of 0.048 percent. The circuit court properly dismissed the charge of fourth offense PAC although a 3rd OWI conviction was entered subsequent to the arrest. State v. Sowatzke,
2010 WI App 81,
326 Wis. 2d 227,
784 N.W.2d 700,
09-1990.
346.63 Annotation
Sub. (1) (am) does not violate substantive due process because it creates a strict liability criminal statute. In
Smet, the court concluded that sub. (1) (am) does not violate substantive due process. While
Smet addressed the absence of an impairment requirement, the rationale is equally applicable to the lack of a scienter requirement. Sub. (1) (am) is a reasonable and rational means for the legislature to address a serious societal harm. The legislature could rationally conclude that a strict liability, zero-tolerance approach is the best way to attack the problem of drugged driving. State v. Luedtke,
2014 WI App 79, ___ Wis. 2d ___, ___ N.W.2d ___,
13-1737.
346.63 Annotation
A "motor bicycle" as defined in s. 340.01 (30) is a "motor vehicle" as defined in s. 340.01 (35) and used in sub. (1), at least when the motor bicycle being operated is self-propelled, rather than pedaled. State v. Koeppen,
2014 WI App 94,
356 Wis. 2d 812,
854 N.W.2d 849,
13-2539.
346.63 Annotation
First offense violations of sub. (1) (a) are assimilated under federal Assimilative Crimes Act when committed on federal enclave. U.S. v. Manning,
700 F. Supp. 1001 (W.D. Wis. 1988).
346.63 Annotation
Offense definition in Wisconsin's impaired driving statutes. Hammer. 69 MLR 165 (1986).
346.63 Annotation
Alcohol and other drugs in Wisconsin drivers: The laboratory perspective. Field. 69 MLR 235 (1986).
346.63 Annotation
Effective use of expert testimony in the defense of drunk driving cases. Olson, WBB December 1981.
346.63 Annotation
The new OMVWI law: Wisconsin changes its approach to the problem of drinking and driving. Hammer, WBB April, May 1982.
346.63 Annotation
Double Jeopardy: A New Tool in the Arsenal of Drunk Driving Defenses. Sines & Ekman. Wis. Law. Dec. 1995.
346.63 Annotation
Wisconsin's New OWI Law. Mishlove & Stuckert. Wis. Law. June 2010.
346.635
346.635
Report arrest or out-of-service order to department. Whenever a law enforcement officer arrests a person for a violation of
s. 346.63 (1),
(5) or
(7), 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, the officer shall notify the department of the arrest and of issuance of an out-of-service order under
s. 343.305 (7) (b) or
(9) (am) as soon as practicable.
346.635 History
History: 1981 c. 20;
1989 a. 105.
346.637
346.637
Driver awareness program. The department shall conduct a campaign to educate drivers in this state concerning:
346.637(1)
(1) The laws relating to operating a motor vehicle and drinking alcohol, using controlled substances or controlled substance analogs, or using any combination of alcohol, controlled substances and controlled substance analogs.
346.637(2)
(2) The effects of alcohol, controlled substances or controlled substance analogs, or the use of them in any combination, on a person's ability to operate a motor vehicle.
346.637 History
History: 1981 c. 20;
1995 a. 448.
346.64
346.64
Employment of drunken operators. 346.64(1)
(1) No person who owns or has direct control of a commercial motor vehicle or any vehicle operated upon a highway for the conveyance of passengers for hire shall employ as an operator of such vehicle and retain in the person's employment any person who is addicted to the excessive use of intoxicating liquor or to the use of a controlled substance or controlled substance analog under
ch. 961. In addition to being subject to fine or imprisonment as prescribed by law, such person shall forfeit $5 for each day such operator is retained in the person's employ.
346.64(2)
(2) Upon conviction of an operator of a commercial motor vehicle or any vehicle operated for the conveyance of passengers for hire, for driving or operating such vehicle while under the influence of an intoxicant, the owner or person having direct control of such vehicle shall discharge such operator from such employment. No person shall employ or retain in employment as an operator of a commercial motor vehicle or a vehicle operated upon a highway for the conveyance of passengers for hire any person who has been so convicted within the preceding 6-month period or any person during a period of disqualification under
s. 343.315, unless
s. 343.055 (2) applies. In addition to being subject to fine or imprisonment as prescribed by law, such person shall forfeit $5 for each day such operator is retained in the person's employ contrary to the provisions of this subsection.
346.65
346.65
Penalty for violating sections 346.62 to 346.64. 346.65(1)(a)
(a) May be required to forfeit not less than $25 nor more than $200, except as provided in
par. (b).
346.65(1)(b)
(b) May be fined not less than $50 nor more than $500 or imprisoned for not more than one year in the county jail or both if the total of convictions under
s. 346.62 (2) or a local ordinance in conformity therewith or a law of a federally recognized American Indian tribe or band in this state in conformity with
s. 346.62 (2) equals 2 or more in a 4-year period. The 4-year period shall be measured from the dates of the violations which resulted in the convictions.
346.65(2)(am)1.
1. Shall forfeit not less than $150 nor more than $300, except as provided in
subds. 2. to
5. and
par. (f).
346.65(2)(am)2.
2. Except as provided in
pars. (bm) and
(f), shall be fined not less than $350 nor more than $1,100 and imprisoned for not less than 5 days nor more than 6 months 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.
346.65(2)(am)3.
3. Except as provided in
pars. (cm),
(f), and
(g), 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 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.
346.65(2)(am)4.
4. Except as provided in
subd. 4m. and
pars. (dm),
(f), and
(g), shall be fined not less than $600 nor more than $2,000 and imprisoned for not less than 60 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 suspensions, revocations, and other convictions counted under
s. 343.307 (1), equals 4, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one.
346.65(2)(am)4m.
4m. Except as provided in
pars. (f) and
(g), is guilty of a Class H felony and shall be fined not less than $600 and imprisoned for not less than 6 months 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 the person committed an offense that resulted in a suspension, revocation, or other conviction counted under
s. 343.307 (1) within 5 years prior to the day of current offense, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one.
346.65(2)(am)5.
5. Except as provided in
pars. (f) and
(g), is guilty of a Class H felony and shall be fined not less than $600 and imprisoned for not less than 6 months 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 5 or 6, except that suspensions, revocations or convictions arising out of the same incident or occurrence shall be counted as one.
346.65(2)(am)6.
6. Except as provided in
par. (f), is guilty of a Class G felony 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 7, 8, or 9, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one. The court shall impose a bifurcated sentence under
s. 973.01 and the confinement portion of the bifurcated sentence imposed on the person shall be not less than 3 years.
346.65(2)(am)7.
7. Except as provided in
par. (f), is guilty of a Class F felony 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 10 or more except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one. The court shall impose a bifurcated sentence under
s. 973.01 and the confinement portion of the bifurcated sentence imposed on the person shall be not less than 4 years.
346.65(2)(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
(dm) or
sub. (2j) (bm),
(cm), or
(cr) or
(3r) once in his or her lifetime.
346.65(2)(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
(dm) or
sub. (2j) (bm),
(cm), or
(cr) or
(3r) once in his or her lifetime.
346.65(2)(dm)
(dm) 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
par. (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) 4., 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. (2j) (bm),
(cm), or
(cr) or
(3r) once in his or her lifetime.
346.65(2)(f)1.1. 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 (1), the person shall be fined not less than $350 nor more than $1,100 and imprisoned for not less than 5 days nor more than 6 months, except as provided in
subd. 2.
346.65(2)(f)2.
2. 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 (1), the applicable minimum and maximum fines and imprisonment under
par. (am) 2. to
7. for the conviction are doubled. An offense under
s. 346.63 (1) that subjects a person to a penalty under
par. (am) 3.,
4.,
4m.,
5.,
6., or
7. when there is a minor passenger under 16 years of age in the motor vehicle is a felony and the place of imprisonment shall be determined under
s. 973.02.
346.65(2)(g)1.1. If a person convicted had an alcohol concentration of 0.17 to 0.199, the applicable minimum and maximum fines under
par. (am) 3. to
5. are doubled.
346.65(2)(g)2.
2. If a person convicted had an alcohol concentration of 0.20 to 0.249, the applicable minimum and maximum fines under
par. (am) 3. to
5. are tripled.
346.65(2)(g)3.
3. If a person convicted had an alcohol concentration of 0.25 or above, the applicable minimum and maximum fines under
par. (am) 3. to
5. are quadrupled.
346.65(2c)
(2c) In
sub. (2) (am) 2.,
3.,
4.,
4m.,
5.,
6., and
7., the time period shall be measured from the dates of the refusals or violations that resulted in the revocation or convictions. If a person has a suspension, revocation, or conviction for any offense under a local ordinance or a state statute of another state that would be counted under
s. 343.307 (1), that suspension, revocation, or conviction shall count as a prior suspension, revocation, or conviction under
sub. (2) (am) 2.,
3.,
4.,
4m.,
5.,
6., and
7.
346.65(2e)
(2e) If the court determines that a person does not have the ability to pay the costs and fine or forfeiture imposed under
sub. (2) (am),
(f), or
(g), the court may reduce the costs, fine, and forfeiture imposed and order the person to pay, toward the cost of the assessment and driver safety plan imposed under
s. 343.30 (1q) (c), the difference between the amount of the reduced costs and fine or forfeiture and the amount of costs and fine or forfeiture imposed under
sub. (2) (am),
(f), or
(g).
346.65(2g)(a)(a) In addition to the authority of the court under
s. 973.05 (3) (a) to provide that a defendant perform community service work for a public agency or a nonprofit charitable organization in lieu of part or all of a fine imposed under
sub. (2) (am) 2.,
3.,
4.,
4m., and
5.,
(f), and
(g) and except as provided in
par. (ag), the court may provide that a defendant perform community service work for a public agency or a nonprofit charitable organization in lieu of part or all of a forfeiture under
sub. (2) (am) 1. or may require a person who is subject to
sub. (2) to perform community service work for a public agency or a nonprofit charitable organization in addition to the penalties specified under
sub. (2).
346.65(2g)(ag)
(ag) If the court determines that a person does not have the ability to pay a fine imposed under
sub. (2) (am) 2.,
3.,
4.,
4m., or
5.,
(f), or
(g), the court shall require the defendant to perform community service work for a public agency or a nonprofit charitable organization in lieu of paying the fine imposed or, if the amount of the fine was reduced under
sub. (2e), in lieu of paying the remaining amount of the fine. Each hour of community service performed in compliance with an order under this paragraph shall reduce the amount of the fine owed by an amount determined by the court.
346.65(2g)(am)
(am) Notwithstanding
s. 973.05 (3) (b), an order under
par. (a) or
(ag) may apply only if agreed to by the organization or agency. The court shall ensure that the defendant is provided a written statement of the terms of the community service order and that the community service order is monitored. 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 a community service 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(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)(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)(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(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)(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.
