343.30(1o)(a)
(a) For a period of not less than 90 days nor more than one year, if the offense resulted in damage to the property of another but did not result in bodily harm to another.
343.30(1o)(b)
(b) For a period of not less than 180 days nor more than 2 years, if the offense resulted in bodily harm to another but did not result in the death of another.
343.30(1o)(c)
(c) For a period of 2 years, if the offense resulted in the death of another.
343.30(1p)
(1p) Notwithstanding sub.
(1), a court shall suspend the operating privilege of a person for 3 months upon the person's conviction by the court for violation of s.
346.63 (2m) or a local ordinance in conformity with s.
346.63 (2m). 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 (2m) or a local ordinance in conformity with s.
346.63 (2m), the court shall suspend the operating privilege of the person for 6 months.
343.30(1q)(a)(a) If a person is convicted under s.
346.63 (1) or a local ordinance in conformity therewith, the court shall proceed under this subsection. If a person is convicted under s.
346.63 (2) or
940.25, or s.
940.09 where the offense involved the use of a vehicle, the court shall proceed under pars.
(c) and
(d). If a person is referred by the department acting under s.
343.16 (5) (a), the department shall proceed under pars.
(c) and
(d) without the order of the court.
343.30(1q)(b)1.
1. Except as provided in subds.
3. and
4., the court shall revoke the person's operating privilege under this paragraph according to the number of previous suspensions, revocations or convictions that would be counted under s.
343.307 (1). Suspensions, revocations and convictions arising out of the same incident shall be counted as one. If a person has a conviction, suspension or revocation for any offense that is counted under s.
343.307 (1), that conviction, suspension or revocation shall count as a prior conviction, suspension or revocation under this subdivision.
343.30(1q)(b)2.
2. Except as provided in sub.
(1r) or subd.
3.,
4. or
4m., for the first conviction, the court shall revoke the person's operating privilege for not less than 6 months nor more than 9 months. The person is eligible for an occupational license under s.
343.10 at any time.
343.30(1q)(b)3.
3. Except as provided in sub.
(1r) or subd.
4m., if the number of convictions under ss.
940.09 (1) and
940.25 in the person's lifetime, plus the total number of other convictions, suspensions, and revocations counted under s.
343.307 (1) within a 10-year period, equals 2, the court shall revoke the person's operating privilege for not less than one year nor more than 18 months. After the first 45 days of the revocation period has elapsed, the person is eligible for an occupational license under s.
343.10 if he or she has completed the assessment and is complying with the driver safety plan ordered under par.
(c).
343.30(1q)(b)4.
4. Except as provided in sub.
(1r) or subd.
4m., if the number of convictions under ss.
940.09 (1) and
940.25 in the person's lifetime, plus the total number of other convictions, suspensions, and revocations counted under s.
343.307 (1), equals 3 or more, the court shall revoke the person's operating privilege for not less than 2 years nor more than 3 years. After the first 45 days of the revocation period has elapsed, the person is eligible for an occupational license under s.
343.10 if he or she has completed the assessment and is complying with the driver safety plan ordered under par.
(c).
343.30(1q)(b)4m.
4m. 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) or a local ordinance in conformity with s.
346.63 (1), the applicable minimum and maximum revocation periods under subd.
2.,
3. or
4. for the conviction are doubled.
343.30(1q)(b)5.
5. The time period under this paragraph shall be measured from the dates of the refusals or violations which resulted in the suspensions, revocations or convictions.
343.30(1q)(c)1.1. Except as provided in subd.
1. a.,
b., or
d., the court shall order the person to submit to and comply with an assessment by an approved public treatment facility as defined in s.
51.45 (2) (c) for examination of the person's use of alcohol, controlled substances or controlled substance analogs and development of a driver safety plan for the person. The court shall notify the department of transportation of the assessment order. The court shall notify the person that noncompliance with assessment or the driver safety plan will result in revocation of the person's operating privilege until the person is in compliance. The assessment order shall:
343.30(1q)(c)1.a.
a. If the person is a resident, refer the person to an approved public treatment facility in the county in which the person resides. The facility named in the order may provide for assessment of the person in another approved public treatment facility. The order shall provide that if the person is temporarily residing in another state, the facility named in the order may refer the person to an appropriate treatment facility in that state for assessment and development of a driver safety plan for the person satisfying the requirements of that state.
343.30(1q)(c)1.b.
b. If the person is a nonresident, refer the person to an approved public treatment facility in this state. The order shall provide that the facility named in the order may refer the person to an appropriate treatment facility in the state in which the person resides for assessment and development of a driver safety plan for the person satisfying the requirements of that state.
343.30(1q)(c)1.c.
c. Require a person who is referred to a treatment facility in another state under subd.
1. a. or
b. to furnish the department written verification of his or her compliance from the agency which administers the assessment and driver safety plan program. The person shall provide initial verification of compliance within 60 days after the date of his or her conviction. The requirement to furnish verification of compliance may be satisfied by receipt by the department of such verification from the agency which administers the assessment and driver safety plan program.
343.30(1q)(c)1.d.
d. Include a statement that if the person is a member or the relative of a member of a federally recognized American Indian tribe or band, the person may receive the assessment required under this subdivision from an approved tribal treatment facility as defined in s.
51.01 (2c).
343.30(1q)(c)1m.
1m. The person may voluntarily submit to an assessment by an approved public treatment facility, as defined in s.
51.45 (2) (c), and driver safety plan under this paragraph before the conviction. A prosecutor may not use that voluntary submission to justify a reduction in the charge made against the person. Upon notification of the person's submission to the voluntary assessment and driver safety plan, the court may take that voluntary submission into account when determining the person's sentence, and shall suspend the order to submit to assessment pending the person's completion of the voluntary assessment and driver safety plan.
343.30(1q)(c)2.
2. The department of health services shall establish standards for assessment procedures and the driver safety plan programs by rule. The department of health services shall establish by rule conflict of interest guidelines for providers. The conflict of interest guidelines may not preclude an approved tribal treatment facility, as defined in s.
51.01 (2c), from conducting assessments and providing treatment under this subsection.
343.30(1q)(c)3.
3. Prior to developing a plan which specifies treatment, the facility shall make a finding that treatment is necessary and appropriate services are available. The facility shall submit a report of the assessment and the driver safety plan within 14 days to the county department under s.
51.42, the plan provider, the department of transportation and the person, except that upon request by the facility and the person, the county department may extend the period for assessment for not more than 20 additional workdays. The county department shall notify the department of transportation regarding any such extension.
343.30(1q)(d)1.1. The assessment report shall order compliance with a driver safety plan. The report shall inform the person of the fee provisions under s.
46.03 (18) (f). The driver safety plan may include a component that makes the person aware of the effect of his or her offense on a victim and a victim's family. The driver safety plan may include treatment for the person's misuse, abuse or dependence on alcohol, controlled substances or controlled substance analogs, or attendance at a school under s.
345.60, or both. If the plan requires treatment at an approved tribal treatment facility, as defined in s.
51.01 (2c), the plan may include traditional tribal treatment modes. If the plan requires inpatient treatment, the treatment shall not exceed 30 days. A driver safety plan under this paragraph shall include a termination date consistent with the plan which shall not extend beyond one year.
343.30(1q)(d)2.
2. The county department under s.
51.42 or approved tribal treatment facility under s.
51.45 (7) (h) shall assure notification of the department of transportation, in a manner prescribed by the department, and the person of the person's compliance or noncompliance with assessment and with treatment. The school under s.
345.60 shall notify the department, the county department under s.
51.42, and the person of the person's compliance or noncompliance with the requirements of the school. Nonpayment of the assessment fee or, if the person has the ability to pay, nonpayment of the driver safety plan fee is noncompliance with the court order. If the department is notified of any noncompliance, other than for nonpayment of the assessment fee or driver safety plan fee, it shall revoke the person's operating privilege until the county department under s.
51.42, the approved tribal treatment facility under s.
51.45 (7) (h), or the school under s.
345.60 notifies the department that the person is in compliance with assessment or the driver safety plan. If the department is notified that a person has not paid the assessment fee, or that a person with the ability to pay has not paid the driver safety plan fee, the department shall suspend the person's operating privilege for a period of 2 years or until it receives notice that the person has paid the fee, whichever occurs first.
343.30(1q)(d)3.
3. The department shall notify the person of the suspension or revocation under subd.
2., the reason for the suspension or revocation and the person's right to a review. A person may request a review of a revocation based upon failure to comply with a driver safety plan within 10 days of notification. The review shall be handled by the subunit of the department of transportation designated by the secretary. The issues at the review are limited to whether the driver safety plan, if challenged, is appropriate and whether the person is in compliance with the assessment order or the driver safety plan. The review shall be conducted within 10 days after a request is received. If the driver safety plan is determined to be inappropriate, the department shall order a reassessment and, if the person is otherwise eligible, the department shall reinstate the person's operating privilege. If the person is determined to be in compliance with the assessment or driver safety plan, and if the person is otherwise eligible, the department shall reinstate the person's operating privilege. If there is no decision within the 10-day period, the department shall issue an order reinstating the person's operating privilege until the review is completed, unless the delay is at the request of the person seeking the review.
343.30(1q)(e)
(e) Notwithstanding par.
(c), if the court finds that the person is already covered by an assessment or is participating in a driver safety plan or has had evidence presented to it by a county department under s.
51.42 that the person has recently completed assessment, a driver safety plan or both, the court is not required to make an order under par.
(c). This paragraph does not prohibit the court from making an order under par.
(c), if it deems such an order advisable.
343.30(1q)(f)
(f) The department may make any order which the court is authorized or required to make under this subsection if the court fails to do so.
343.30(1q)(h)
(h) The court or department shall provide that the period of suspension or revocation imposed under this subsection shall be reduced by any period of suspension or revocation previously served under s.
343.305 if the suspension or revocation under s.
343.305 and the conviction for violation of s.
346.63 (1) or
(2m) or a local ordinance in conformity therewith arise out of the same incident or occurrence. The court or department shall order that the period of suspension or revocation imposed under this subsection run concurrently with any period of time remaining on a suspension or revocation imposed under s.
343.305 arising out of the same incident or occurrence. The court may modify an occupational license authorized under s.
343.305 (8) (d) in accordance with this subsection.
343.30(1r)
(1r) For any revocation the court orders under sub.
(1q), the court shall extend the revocation period by the number of days to which the court sentences the person to imprisonment in a jail or prison for an offense related to the revocation.
343.30(1z)
(1z) If a court imposes a driver improvement surcharge under s.
346.655 or a safe ride program surcharge under s.
346.657 and the person fails to pay all surcharges imposed under s.
346.655 or
346.657 within 60 days after the date by which the court ordered payment, the court may suspend the person's operating privilege until the person pays all surcharges imposed under s.
346.655 or
346.657, except that the suspension period may not exceed 2 years.
343.30(2d)
(2d) A court may suspend a person's operating privilege upon conviction of any offense specified under ss.
940.225,
948.02,
948.025,
948.07, or
948.085, if the court finds that it is inimical to the public safety and welfare for the offender to have operating privileges. The suspension shall be for one year or until discharge from prison or jail sentence or probation, extended supervision or parole with respect to the offenses specified, whichever date is later. Receipt of a certificate of discharge from the department of corrections or other responsible supervising agency, after one year has elapsed since the suspension, entitles the holder to reinstatement of operating privileges. The holder may be required to present the certificate to the secretary if the secretary deems necessary.
343.30(2g)
(2g) A court may suspend or revoke a person's operating privilege for any period not exceeding one year upon conviction of that person for violating s.
346.67,
346.68 or
346.69. This subsection does not apply to circumstances that require the department to revoke a person's operating privilege under s.
343.31 (1) (d) or
(3) (i) or
(j).
343.30(2j)
(2j) A court may suspend a person's operating privilege upon the person's first conviction for violating s.
346.44 or
346.62 (2m) and shall suspend a person's operating privilege upon the person's 2nd or subsequent conviction within a 5-year period for violating s.
346.44 or
346.62 (2m). The suspension shall be for a period of 6 months. For purposes of determining prior convictions for purposes of this subsection, the 5-year period shall be measured from the dates of the violations that resulted in the convictions. Each conviction under s.
346.44 or
346.62 (2m) shall be counted, except that convictions under s.
346.44 and
346.62 (2m) arising out of the same incident or occurrence shall be counted as a single conviction.
343.30 Note
NOTE: Sub. (2j) is shown as renumbered from sub. (2j) (a) by the legislative reference bureau under s. 13.92 (1) (bm) 2. The cross-reference to “this subsection” was changed from “this paragraph” by the legislative reference bureau under s. 13.92 (1) (bm) 2. to reflect the renumbering.
343.30(3)
(3) The court that ordered the issuance of an occupational license under s.
343.10 (4) (b) may withdraw the order to issue the license whenever the court, upon the facts, does not see fit to permit the licensee to retain the occupational license. Upon receiving notice that a court has withdrawn its order to issue an occupational license, the department shall cancel that license.
343.30(4)
(4) Whenever a court suspends or revokes an operating privilege under this section, the court may take possession of any suspended or revoked license. If the court takes possession of a license, it shall destroy the license. The court shall forward, as provided in s.
345.48, to the department the record of conviction and notice of suspension or revocation. Whenever a court restricts the operating privilege of a person, the court shall forward notice of the restriction to the department.
343.30(5)
(5) No court may suspend or revoke an operating privilege except as authorized by this chapter or ch.
345,
351, or
938 or s.
767.73,
800.095 (1) (a),
943.21 (3m), or
961.50. When a court revokes, suspends, or restricts a juvenile's operating privilege under ch.
938, the department of transportation shall not disclose information concerning or relating to the revocation, suspension, or restriction to any person other than a court, district attorney, county corporation counsel, city, village, or town attorney, law enforcement agency, driver licensing agency of another jurisdiction, or the minor whose operating privilege is revoked, suspended, or restricted, or his or her parent or guardian. Persons entitled to receive this information shall not disclose the information to other persons or agencies.
343.30(6)(a)(a) In this subsection, “violation" means a violation of s.
125.07 (4) (a) or
(b),
125.085 (3) (b) or
125.09 (2) or a local ordinance that strictly conforms to one of those statutes or a law of a federally recognized American Indian tribe or band in this state that strictly conforms to one of those statutes.
343.30(6)(b)1.
1. For a first violation, suspension for 30 to 90 days.
343.30(6)(b)2.
2. For a violation committed within 12 months of a previous violation, suspension for not more than one year.
343.30(6)(b)3.
3. For a violation committed within 12 months of 2 or more previous violations, suspension for not more than 2 years.
343.30(6)(bm)
(bm) If the court imposes a suspension of a person's operating privilege under s.
125.085 (3) (bd), the suspension shall be for 30 to 90 days.
343.30(6)(c)
(c) Except as provided by par.
(d), the suspension of the operating privilege under this subsection shall commence on the date of disposition.
343.30(6)(d)
(d) If the person subject to suspension under this subsection does not hold a valid license under this chapter other than a license under s.
343.07 or
343.08 on the date of disposition, the suspension under par.
(b) shall commence on the date on which the person is first eligible for issuance, renewal, or reinstatement of an operator's license under this chapter.
343.30 History
History: 1971 c. 213 s.
5;
1971 c. 278;
1973 c. 70,
218;
1975 c. 5;
1975 c. 184 s.
13;
1975 c. 199,
297,
421;
1977 c. 29 s.
1654 (7) (a), (c);
1977 c. 30,
64,
193,
203;
1979 c. 221,
300,
331,
333,
355;
1981 c. 20;
1981 c. 79 s.
18;
1983 a. 17;
1983 a. 74 ss.
23m to
26,
32;
1983 a. 192;
1985 a. 80,
176,
337;
1987 a. 3,
17,
285;
1987 a. 332 s.
64;
1989 a. 7,
31,
105,
121,
336;
1991 a. 39,
251,
277,
316;
1993 a. 16,
227,
317;
1995 a. 27,
77,
269,
338,
401,
425,
448;
1997 a. 35,
84,
135,
237,
283;
1999 a. 32,
109,
143;
2001 a. 15,
16,
38;
2003 a. 30,
80;
2005 a. 277;
2005 a. 443 s.
265;
2005 a. 466;
2007 a. 20 ss.
3300,
9121 (6) (a);
2007 a. 134;
2009 a. 100,
102,
103,
402;
2011 a. 113,
173,
262;
2013 a. 246;
2015 a. 55;
2017 a. 105; s. 13.92 (1) (bm) 2.
343.30 Cross-reference
Cross-reference: See also ch.
DHS 62, Wis. adm. code.
343.30 Annotation
The limitation under sub. (5) that no court may suspend or revoke an operating privilege except as authorized by statute precludes not only restrictions on obtaining a physical license document, but also on the privilege to operate a vehicle. A court's broad authority to fashion appropriate conditions of extended supervision is limited by the provisions of this section concerning suspension and revocation of operating privileges by the courts. State v. Hoppe,
2014 WI App 51,
354 Wis. 2d 219,
847 N.W.2d 869,
13-1457.
343.30 Annotation
Suspension or revocation of operating privileges applies to both a regular driver license and to a chauffeur's license. 63 Atty. Gen. 240.
343.301
343.301
Installation of ignition interlock device. 343.301(1g)(a)
(a) A court shall enter an order under par.
(am) if either of the following applies:
343.301(1g)(a)2.a.
a. The person had an alcohol concentration of 0.15 or more at the time of the offense.
343.301(1g)(a)2.b.
b. The person has a total of one or more prior convictions, suspensions, or revocations, counting convictions under ss.
940.09 (1) and
940.25 in the person's lifetime and other convictions, suspensions, and revocations counted under s.
343.307 (1).
343.301(1g)(am)1.
1. That the person's operating privilege for the operation of “Class D" vehicles be restricted to operating vehicles that are equipped with an ignition interlock device and, except as provided in sub.
(1m), shall order that each motor vehicle for which the person's name appears on the vehicle's certificate of title or registration be equipped with an ignition interlock device.
343.301(1g)(am)2.
2. That the person participate in a program described in s.
165.957 or that meets the definition of a 24-7 sobriety program under
23 USC 405 (d) (7) (A) and regulations adopted thereunder. If the court enters an order under this subdivision, when the person completes or otherwise does not participate in the program, the court shall order that the person's operating privilege for the operation of “Class D" vehicles be restricted to operating vehicles that are equipped with an ignition interlock device, shall specify the duration of the order, shall, except as provided in sub.
(1m), order that each motor vehicle for which the person's name appears on the vehicle's certificate of title or registration be equipped with an ignition interlock device, and shall notify the department of such order.
343.301(1m)
(1m) If equipping each motor vehicle with an ignition interlock device under sub.
(1g) would cause an undue financial hardship, the court may order that one or more vehicles described in sub.
(1g) not be equipped with an ignition interlock device.
343.301(2m)(a)(a) If the court enters an order under sub.
(1g) (am) 1., the restriction of the person's operating privilege under the order under sub.
(1g) (am) 1. shall begin on the date the order under sub.
(1g) (am) 1. is issued and extend for a period of not less than one year after the date the department issues any license granted under this chapter nor more than the maximum operating privilege revocation period permitted for the refusal or violation after the date the department issues any license granted under this chapter except that if the maximum operating privilege revocation period is less than one year, the restriction of the person's operating privilege under sub.
(1g) (am) 1. shall extend for a period of one year after the department issues any license granted under this chapter. If the court enters an order under sub.
(1g) (am) 1., the court may specify the date by which an ignition interlock device under sub.
(1g) (am) 1. shall be installed.
343.301(2m)(b)
(b) If the court enters an order under sub.
(1g) (am) 2. that does not restrict a person's operating privilege for the operation of “Class D" vehicles to operating vehicles that are equipped with an ignition interlock device while he or she participates in a program, the court shall order that the time period during which the person participates in a program, combined with the time period for which the person's operating privilege is restricted under sub.
(1g) (am) 2. equals not less than one year nor more than the maximum operating privilege revocation period permitted for the refusal or violation, except that if the maximum operating privilege revocation period is less than one year, the time period shall equal one year. The time period for which the person's operating privilege is restricted under sub.
(1g) (am) 2. begins on the date the department issues any license granted under this chapter. The court may order the person to install an ignition interlock device under sub.
(1g) (am) 2. immediately after his or her participation in the program ends or while the person completes the program and for the additional period of time required under this paragraph, and shall notify the department of the date the person's participation ended and the duration of the order restricting the operating privilege. A person subject to an order requiring installation of an ignition interlock device shall, within 2 weeks after the date on which installation of the ignition interlock device is required under the order, submit proof to the sheriff in his or her county of residence that an ignition interlock device has been installed in each motor vehicle to which the order applies.
343.301(3)(a)(a) Except as provided in par.
(b), if the court enters an order under sub.
(1g), the person shall be liable for the reasonable cost of equipping and maintaining any ignition interlock device installed on his or her motor vehicle.
343.301(3)(b)
(b) If the court finds that the person who is subject to an order under sub.
(1g) has a household income that is at or below 150 percent of the nonfarm federal poverty line for the continental United States, as defined by the federal department of labor under
42 USC 9902 (2), the court shall limit the person's liability under par.
(a) to one-half of the cost of equipping each motor vehicle with an ignition interlock device and one-half of the cost per day per vehicle of maintaining the ignition interlock device.
343.301(4)
(4) A person to whom an order under sub.
(1g) applies violates that order if he or she fails to have an ignition interlock device installed as ordered, removes or disconnects an ignition interlock device, requests or permits another to blow into an ignition interlock device or to start a motor vehicle equipped with an ignition interlock device for the purpose of providing the person an operable motor vehicle without the necessity of first submitting a sample of his or her breath to analysis by the ignition interlock device, or otherwise tampers with or circumvents the operation of the ignition interlock device.
343.301(5)
(5) If the court enters an order under sub.
(1g), the court shall impose and the person shall pay to the clerk of court an ignition interlock surcharge of $50. The clerk of court shall transmit the amount to the county treasurer.
343.301 Annotation
Sub. (1g) (b) 2. requires an order for ignition interlock devices when a person violates s. 346.63 (1) and has one or more prior OWI convictions. Sub. (1g) (b) 2. provides no restrictions on how to count prior convictions for purposes of ordering ignition interlock devices. The ten-year look-back provision in s. 346.65 (2) (am) 2. for purposes of determining whether to charge or penalize a repeat OWI offender civilly or criminally is independent of and has no effect on orders for ignition interlock devices under this section. Village of Grafton v. Seatz,
2014 WI App 23,
352 Wis. 2d 747,
845 N.W.2d 672,
13-1414.
343.301 Annotation
Wisconsin's New OWI Law. Mishlove & Stuckert. Wis. Law. June 2010.
343.303
343.303
Preliminary breath screening test. If a law enforcement officer has probable cause to believe that the person is violating or has violated s.
346.63 (1) or
(2m) 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 if the officer detects any presence of alcohol, a 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 that the person is violating or has violated s.
346.63 (7) or a local ordinance in conformity therewith, the officer, prior to an arrest, may request the person to provide a sample of his or her breath for a preliminary breath screening test using a device approved by the department for this purpose. The result of this preliminary breath screening test may be used by the law enforcement officer for the purpose of deciding whether or not the person shall be arrested for a violation of s.
346.63 (1),
(2m),
(5) or
(7) or a local ordinance in conformity therewith, or s.
346.63 (2) or
(6),
940.09 (1) or
940.25 and whether or not to require or request chemical tests as authorized under s.
343.305 (3). The result of the preliminary breath screening test shall not be admissible in any action or proceeding except to show probable cause for an arrest, if the arrest is challenged, or to prove that a chemical test was properly required or requested of a person under s.
343.305 (3). Following the screening test, additional tests may be required or requested of the driver under s.
343.305 (3). The general penalty provision under s.
939.61 (1) does not apply to a refusal to take a preliminary breath screening test.
343.303 Annotation
A prosecutor's statement that the defendant failed a preliminary breath test was improper, but evidence that the defendant refused to take a breathalyzer test was relevant and constitutionally admissible. State v. Albright,
98 Wis. 2d 663,
298 N.W.2d 196 (Ct. App. 1980).
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.
