343.305 Annotation
The “reason to believe" standard in sub. (3) (ar) 2. requires that the law enforcement officer have a “minimal suspicion" that the defendant has committed a traffic violation. State v. Padley,
2014 WI App 65,
354 Wis. 2d 545,
849 N.W.2d 867,
13-0852.
343.305 Annotation
Testimony showed that a doctor had issued a standing order authorizing an ambulance district's EMTs to draw blood when requested to do so by law enforcement, and instead of personally observing each individual blood draw, the doctor had allowed the EMTs to perform blood draws on their own while making himself accessible by telephone should any problems arise. The testimony left no doubt that it was the doctor who was in charge of blood-drawing activities conducted by the EMTs. To require more evidence than what the state provided to establish that the EMT who drew the blood in this OWI case was acting under the direction of the doctor would have been to require a specific type or degree of direction that sub. (5) (b) does not so specify. State v. Kozel,
2017 WI 3,
373 Wis. 2d 1,
889 N.W.2d 423,
15-0656.
343.305 Annotation
It was constitutionally reasonable for an EMT, as opposed to a physician, to draw an OWI suspect's blood. The important point for constitutional purposes was that the evidence demonstrated that the EMT was thoroughly trained and experienced in properly drawing blood. Also, it was not unreasonable for the blood draw to occur in the non-medical setting of the jail when the evidence indicated that the room in which the blood was drawn “was clean and as clean as a hospital emergency room,” and the EMT used a new blood draw kit containing a sterile needle. State v. Kozel,
2017 WI 3,
373 Wis. 2d 1,
889 N.W.2d 423,
15-0656.
343.305 Annotation
A blood draw from the defendant under this section while the defendant was unconscious was permissible under the 4th amendment under the exigent circumstances doctrine when a deputy had probable cause to arrest the defendant for operating a vehicle with a prohibited alcohol concentration. State v. Howes,
2017 WI 18,
373 Wis. 2d 468,
893 N.W.2d 812,
14-1870.
343.305 Annotation
Upon his or her lawful arrest for drunk driving, a defendant has no constitutional or statutory right to refuse to take a breathalyzer test and the state can comment at trial on the defendant's improper refusal to take the test. State v. Lemberger,
2017 WI 39,
374 Wis. 2d 617,
893 N.W.2d 232,
15-1452.
343.305 Annotation
Sub. (3) (ar) 2. does not provide that if the driver refuses to take a test, the driver's operating privilege will be revoked. The statute states only that if a driver refuses to take any test the driver may be arrested. Sub. (4) sets forth the “Informing the Accused" form that a law enforcement officer is required to read to a person from whom a test specimen is requested under sub. (3) (ar). The form differs from sub. (3) (ar) 2., stating that if a driver refuses to take any test under sub. (3) (ar) 2., the driver's “operating privilege will be revoked." The proper advice to a defendant subject to sub. (3) (ar) 2. is that his or her operating privilege will be revoked if he or she fails to request a refusal hearing. State v. Blackman,
2017 WI 77,
377 Wis. 2d 339,
898 N.W.2d 774,
15-0450.
343.305 Annotation
Revocation of a driver's operating privilege is unenforceable against a driver who has refused a test under sub. (3) (ar) 2. if the driver requests a refusal hearing. The issues at the hearing are limited to the state proving that the officer had probable cause to believe that the driver was driving or operating a motor vehicle under the influence and two other factors. The legislature did not remove the OWI-related probable cause requirement from a refusal hearing. The text of the statute clearly provides that when an officer requests a blood test pursuant to sub. (3) (ar) 2., the state cannot prevail at the refusal hearing because probable cause is a prerequisite to revocation of an operating license. State v. Blackman,
2017 WI 77,
377 Wis. 2d 339,
898 N.W.2d 774,
15-0450.
343.305 Annotation
When a law enforcement officer has reasonable grounds to believe that an unconscious person is guilty of driving while intoxicated, a blood sample may be taken, and the test results are admissible in evidence and may not be excluded by the trial court. 59 Atty. Gen. 183.
343.305 Annotation
Implied consent is discussed. 62 Atty. Gen. 174.
343.305 Annotation
The method by which a law enforcement agency may provide 2 tests for blood alcohol content under sub. (1), 1985 stats. [now sub. (2)] is discussed. The agency is not required to actually own or physically possess the testing devices. 63 Atty. Gen. 119.
343.305 Annotation
Under s. 343.305 (1) and (4), 1985 stats., hospital personnel must administer tests and report results at the request of officers, subject to penalty under s. 946.40. 68 Atty. Gen. 209.
343.305 Annotation
Federal law requiring confidentiality of patient records has no application to the taking of a blood sample under this section.
73 Atty. Gen. 45.
343.305 Annotation
A law enforcement officer may use physical restraint, subject to constitutional limitations, in order to draw a legally justified blood sample. Refusal by a health professional to comply with a law enforcement officer's authorized request to take a blood sample from a person whom the officer has legally restrained by force constitutes refusal to aid an officer under s. 946.40.
74 Atty. Gen. 123.
343.305 AnnotationRefusal hearings under this section are discussed.
77 Atty. Gen. 4.
343.305 Annotation
A Massachusetts implied consent law that mandates suspension of a license for refusal to take a breath-analysis test did not violate the due process clause. Mackey v. Montrym,
443 U.S. 1 (1979).
343.305 Annotation
The admission into evidence of a defendant's refusal to submit to a blood-alcohol test did not deny the right against self-incrimination. South Dakota v. Neville,
459 U.S. 553 (1983).
343.305 Annotation
Wisconsin's new administrative suspension statute. 72 MLR 120 (1988).
343.305 Annotation
The new OMVWI law: Wisconsin changes its approach to the problem of drinking and driving. Hammer, WBB April, May 1982.
343.305 Annotation
Technical problems corrected: Operating while intoxicated. Hancock and Maassen. WBB Apr. 1987.
343.305 Annotation
Wisconsin's breath testing program. Booker. WBB Oct. 1988.
343.305 Annotation
Rethinking Refusal: Wisconsin's Implied Consent Law. Lotke. Wis. Law. July 1993.
343.305 Annotation
Using Preliminary Breath Test Results in Trials? Don't Hold Your Breath. Anderegg. Wis. Law. Jan. 2015.
343.305 Annotation
OWI Blood Draws: An Uncertain Road Ahead. Anderegg. Wis. Law. Nov. 2017.
343.307
343.307
Prior convictions, suspensions or revocations to be counted as offenses. 343.307(1)(a)
(a) Convictions for violations under s.
346.63 (1), or a local ordinance in conformity with that section.
343.307(1)(b)
(b) Convictions for violations of a law of a federally recognized American Indian tribe or band in this state in conformity with s.
346.63 (1).
343.307(1)(d)
(d) Convictions under the law of another jurisdiction that prohibits a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction's laws.
343.307(1)(e)
(e) Operating privilege suspensions or revocations under the law of another jurisdiction arising out of a refusal to submit to chemical testing.
343.307(2)
(2) The court shall count the following to determine the length of a revocation under s.
343.305 (10) and to determine the penalty under s.
346.65 (2j) and to determine the prohibited alcohol concentration under s.
340.01 (46m):
343.307(2)(b)
(b) Convictions for violations of a law of a federally recognized American Indian tribe or band in this state in conformity with s.
346.63 (1) or
(5).
343.307(2)(d)
(d) Convictions under the law of another jurisdiction that is in substantial conformity with
49 CFR 383.51 (b) Table 1, items (1) to (4).
343.307(2)(e)
(e) Convictions under the law of another jurisdiction that prohibits a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction's laws.
343.307(2)(f)
(f) Operating privilege suspensions or revocations under the law of another jurisdiction arising out of a refusal to submit to chemical testing.
343.307(3)
(3) If the same elements of the offense must be proven under a local ordinance or under a law of a federally recognized American Indian tribe or band in this state as under s.
346.63 (1) (a),
(am), or
(b), any combination of s.
346.63 (1) (a),
(am), or
(b), or s.
346.63 (5), the local ordinance or the law of a federally recognized American Indian tribe or band in this state shall be considered to be in conformity with s.
346.63 (1) (a),
(am), or
(b), any combination of s.
346.63 (1) (a),
(am), or
(b), or s.
346.63 (5), for purposes of ss.
343.30 (1q) (b) 1.,
343.305 (10) (b) 1. and
346.65 (2) and
(2j).
343.307 Annotation
An Illinois court's placement of an OWI offender under court supervision is a conviction that is counted as a prior offense under sub. (1) (d) when charging an OWI suspect in Wisconsin. Placement under court supervision as a result of a determination that the defendant violated or failed to comply with the law in a court of original jurisdiction meets the definition of conviction under s. 340.01 (9r). State v. List,
2004 WI App 230,
277 Wis. 2d 836,
691 N.W.2d 366,
03-3149.
343.307 Annotation
The final phrase of sub. (1) (d), “as those or substantially similar terms are used in that jurisdiction's laws," indicates the broad scope of that provision. When determining a penalty, Wisconsin counts prior offenses committed in states with OWI statutes that differ significantly from Wisconsin's. “Substantially similar" simply emphasizes that the out-of-state statute need only prohibit conduct similar to the list of prohibited conduct in sub. (1) (d). State v. Puchacz,
2010 WI App 30,
323 Wis. 2d 741,
780 N.W.2d 536,
09-0840.
343.307 Annotation
The definition of “conviction" in s. 340.01 (9r) applies to “convictions" in sub. (1) (d). Under sub. (1) (d), the other jurisdiction need only have a law that prohibits conduct specified in sub. (1) (d). The Illinois “zero tolerance" law punishes a person who is less than 21 years of age for refusing to submit to a chemical test, or for using a motor vehicle with an alcohol concentration above 0.00 and thus, in the context of sub. (1) (d), was a conviction under a law of another jurisdiction that prohibits refusal of chemical testing or prohibits using a motor vehicle with an excess or specified range of alcohol concentration. State v. Carter,
2010 WI 132,
330 Wis. 2d 1,
794 N.W.2d 213,
08-3144.
343.307 Annotation
In sub. (1) (d), the phrase “with an excess or specified range of alcohol concentration" modifies the phrase “using a motor vehicle," not the phrase “
using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof." Thus, the statute should be read as follows: convictions under the law of another jurisdiction that prohibits a person from using a motor vehicle with an excess or specified range of alcohol concentration. State v. Carter,
2010 WI 132,
330 Wis. 2d 1,
794 N.W.2d 213,
08-3144.
343.307 Annotation
Section 340.01 (9r) defines “conviction" as including having “violated or failed to comply with the law in a court of original jurisdiction." By not appearing in court on the specified date, as directed, the defendant did not “comply with the law." State v. Marilee Devries,
2011 WI App 78,
334 Wis. 2d 430,
801 N.W.2d 336,
09-3166.
343.307 Annotation
The elements of an underlying first-offense OWI need not be proven to a jury beyond a reasonable doubt in a criminal proceeding for a subsequent OWI violation. State v. Verhagen,
2013 WI App 16,
346 Wis. 2d 196,
827 N.W.2d 891,
11-2033.
343.307 Annotation
Sub. (1) (d)'s inclusion of out-of-state convictions under a law that prohibits driving “with an excess or specified range of alcohol concentration" does not violate the Equal Protection Clause, even if a consequence is to treat Illinois zero tolerance offenses differently than Wisconsin absolute sobriety offenses. Ease of administration in Wisconsin courts provides a rational basis for a single, straightforward, and broad definition of out-of-state offenses applicable to all other jurisdictions. The definition consistently counts all convictions under out-of-state laws prohibiting driving with an excess or specified range of alcohol concentration regardless of their labels or treatment. State v. Hirsch,
2014 WI App 39,
353 Wis. 2d 453,
847 N.W.2d 192,
13-0427.
343.307 Annotation
Every term in sub. (1) (d) relates in some way to a person operating a motor vehicle with either drugs or alcohol, or both, in his or her system. That critical aspect is completely absent from the reckless driving offense of which the defendant was convicted. The initial charge, sanctions, and potential future consequences are of no moment. State v. Jackson,
2014 WI App 50,
354 Wis. 2d 99,
851 N.W.2d 465,
13-1282.
343.307 Annotation
A conviction that has been collaterally attacked meets the definition of “conviction" under s. 340.01 (9r) because a collateral attack does not overturn or vacate the conviction. Instead, it attempts to avoid the conviction's force of law in a subsequent criminal proceeding. Thus, as long as the adjudication of guilt is unvacated, the conviction remains on DOT's records and should be counted in determining whether to revoke the offender's operating privilege.
OAG 2-14.
343.31
343.31
Revocation or suspension of licenses after certain convictions or declarations. 343.31(1)(1)
The department shall revoke a person's operating privilege upon receiving a record of conviction showing that the person has been convicted of any of the following offenses under a state law or under a local ordinance which is in conformity therewith or under a law of a federally recognized American Indian tribe or band in this state which is in conformity with state law:
343.31(1)(am)
(am) Injury by the operation of a vehicle while under the influence of an intoxicant, a controlled substance or a controlled substance analog, or any combination of an intoxicant, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving or while the person has a detectable amount of a restricted controlled substance in his or her blood or has a prohibited alcohol concentration and which is criminal under s.
346.63 (2).
343.31(1)(ar)
(ar) Injury by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08 and which is criminal under s.
346.63 (6).
343.31(1)(b)
(b) Upon conviction for operation of a motor vehicle while under the influence of an intoxicant, controlled substance, controlled substance analog or a combination thereof, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving, in accordance with the order of the court.
343.31(1)(c)
(c) Any felony in the commission of which a motor vehicle is used.
343.31(1)(d)
(d) Failure to stop and render aid as required under the laws of this state in the event of a motor vehicle accident resulting in death of or personal injury to another or in serious property damage.
343.31(1)(g)
(g) Operating a motor vehicle without having furnished proof of financial responsibility when proof of financial responsibility is required.
343.31(1m)(a)(a) In this subsection, “qualifying conviction" means any of the following:
343.31(1m)(a)2.
2. A conviction for a crime punishable as a felony under chs.
341 to
348 or a felony in the commission of which a motor vehicle is used.
343.31(1m)(b)
(b) 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 4 or more, and the 4th conviction, suspension, or revocation occurs within 15 years of the previous conviction, suspension, or revocation, the department shall revoke the person's operating privilege permanently. The person is not eligible for an occupational license under s.
343.10. After 10 years of the revocation period have elapsed, the person may apply for reinstatement under s.
343.38.
343.31(1m)(c)
(c) 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 25-year period, equals 2 or more, and the person has 2 or more qualifying convictions, the department shall revoke the person's operating privilege permanently. The person is not eligible for an occupational license under s.
343.10. After 10 years of the revocation period have elapsed, the person may apply for reinstatement under s.
343.38.
343.31(2)
(2) The department shall revoke the operating privilege of any resident upon receiving notice of the conviction of such person in another jurisdiction for an offense therein which, if committed in this state, would have been cause for revocation under this section or for revocation under s.
343.30 (1q). Such offenses shall include violation of any law of another jurisdiction that prohibits a person from using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction's laws. Upon receiving similar notice with respect to a nonresident, the department shall revoke the privilege of the nonresident to operate a motor vehicle in this state. Such revocation shall not apply to the operation of a commercial motor vehicle by a nonresident who holds a valid commercial driver license issued by another state.
343.31(2m)
(2m) The department may suspend or revoke, respectively, the operating privilege of any resident upon receiving notice of the conviction of that person under a law of another jurisdiction or a federally recognized American Indian tribe or band in this state for an offense which, if the person had committed the offense in this state and been convicted of the offense under the laws of this state, would have permitted suspension or revocation of the person's operating privilege under s.
343.30 (1d) or
(1g). Upon receiving similar notice with respect to a nonresident, the department may suspend or revoke the privilege of the nonresident to operate a motor vehicle in this state. The suspension or revocation shall not apply to the operation of a commercial motor vehicle by a nonresident who holds a valid commercial driver license issued by another state. A suspension or revocation under this subsection shall be for any period not exceeding 6 months.
343.31(2r)
(2r) The department shall suspend a person's operating privilege upon receiving a record of conviction showing that the person has been convicted of perjury or the making of a false affidavit or the making of a false statement or certification to the department under this chapter or any other law relating to the ownership or operation of motor vehicles.
343.31(2s)
(2s) The department may suspend a person's operating privilege for 2 years upon receiving a record of conviction under s.
973.137. If the department receives a record of conviction under s.
973.137 or a notice of suspension under s.
938.34 (14q) for a person whose license or operating privilege is currently suspended or revoked or for a person who does not currently possess a valid operator's license, the suspension is first effective on the date on which the person is first eligible for issuance, renewal, or reinstatement of an operator's license.
343.31(2t)(a)(a) The department shall suspend a person's operating privilege upon receiving a record of conviction for a violation of s.
346.05 (1),
346.06,
346.07 (2) or
(3),
346.09,
346.18,
346.23,
346.31,
346.37 (1) (a) 1.,
(c) 3., or
(d) 1.,
346.39 (1),
346.46 (1) or
(4) (a),
346.47 (1) or
(2), or
346.87 or a local ordinance in conformity therewith, resulting in great bodily harm, as defined in s.
939.22 (14), or death, as follows:
343.31(2t)(a)2.
2. For a period of 3 months, if the offense resulted in great bodily harm to another but did not result in the death of another.
343.31(2t)(a)3.
3. For a period of 9 months, if the offense resulted in the death of another.
343.31(2t)(b)
(b) If a person is convicted of violating s.
346.05 (1),
346.06,
346.07 (2) or
(3),
346.09,
346.18,
346.23,
346.31,
346.37 (1) (a) 1.,
(c) 3., or
(d) 1.,
346.39 (1),
346.46 (1) or
(4) (a),
346.47 (1) or
(2), or
346.87 or a local ordinance in conformity therewith, in addition to any other penalty provided by law, the department shall order the person to attend a vehicle right-of-way course whose mode of instruction is approved by the secretary and which is conducted by any regularly established safety organization, by the provider of driver education courses approved under s.
38.04 (4) or
115.28 (11), or by a driver school licensed under s.
343.61. The course of instruction shall acquaint the person with vehicle right-of-way rules and provide instruction on motorcycle, pedestrian, and bicycle awareness. If the course is conducted by the provider of approved driver education courses or a driver school, the provider or driver school shall issue to the person a certificate upon successful completion of the course. If a person's operating privilege has been suspended under par.
(a) or
(c), the department may not reinstate the person's operating privilege unless the person has successfully completed the course required under this paragraph.
343.31(2t)(c)
(c) If a person is convicted of violating s.
346.05 (1),
346.06,
346.07 (2) or
(3),
346.09,
346.18,
346.23,
346.31,
346.37 (1) (a) 1.,
(c) 3., or
(d) 1.,
346.39 (1),
346.46 (1) or
(4) (a),
346.47 (1) or
(2), or
346.87 or a local ordinance in conformity therewith and great bodily harm or death did not result, and the person has not completed the course required under par.
(b) within 6 months of the department ordering the person to attend the course, the department shall suspend the person's operating privilege until the person successfully completes the course. The department may not suspend a person's operating privilege for more than 5 years under this subsection.
343.31(2u)
(2u) The department shall suspend the operating privilege of a person who has been issued an occupational license upon receiving a record of conviction showing that the person has been convicted of any of the following offenses.
343.31(2u)(b)
(b) Exceeding by 20 or more miles per hour any lawful or posted maximum speed limit.
343.31(2u)(c)
(c) Participating in any race or speed or endurance contest.
343.31(2x)
(2x) The department shall suspend a person's operating privilege upon receiving a record of a declaration under s.
54.25 (2) (c) 1. d. that the person is incompetent to apply for an operator's license. The department may reinstate the person's operator's license upon receiving a record of a declaration that the person is no longer incompetent to apply for an operator's license under s.
54.25 (2) (c) 1. d., if the person is otherwise qualified under this chapter to obtain an operator's license.
343.31(3)(a)(a) Except as otherwise provided in this subsection or sub.
(1m),
(2m),
(2s),
(2t), or
(2x), all revocations or suspensions under this section shall be for a period of one year.
343.31(3)(b)
(b) If the revocation results from a first conviction of operation of a motor vehicle while under the influence of an intoxicant, controlled substance, controlled substance analog or a combination thereof, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving and the conviction occurs in another jurisdiction, the period of revocation shall be 6 months.
343.31(3)(bm)
(bm) For any person convicted under a law of a federally recognized American Indian tribe or band in this state in conformity with s.
346.63 (1):
343.31(3)(bm)1.
1. Except as provided in subds.
3. and
4., the department shall revoke the person's operating privilege under this paragraph according to the number of previous suspensions, revocations or convictions that would be counted under s.
343.307 (1). Suspensions, revocations and convictions arising out of the same incident shall be counted as one. If a person has a conviction, suspension or revocation for any offense that is counted under s.
343.307 (1), that conviction, suspension or revocation shall count as a prior conviction, suspension or revocation under this subdivision.
343.31(3)(bm)2.
2. Except as provided in subd.
3.,
4. or
4m., for the first conviction, the department shall revoke the person's operating privilege for not less than 6 months nor more than 9 months. If an Indian tribal court in this state revokes the person's privilege to operate a motor vehicle on tribal lands for not less than 6 months nor more than 9 months for the conviction specified in par.
(bm) (intro.), the department shall impose the same period of revocation. The person is eligible for an occupational license under s.
343.10 at any time.
