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, 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 s.
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.
346.65(3m)
(3m) Except as provided in sub.
(3p),
(3r), or
(3t), any person violating s.
346.63 (2) or
(6) shall be fined not less than $300 nor more than $2,000 and shall be imprisoned for not less than 30 days nor more than one year in the county jail. If there was a minor passenger under 16 years of age in the motor vehicle at the time of the violation that gave rise to the conviction under s.
346.63 (2) or
(6), the offense is a felony, the applicable minimum and maximum fines or periods of imprisonment for the conviction are doubled and the place of imprisonment shall be determined under s.
973.02.
346.65(3p)
(3p) Any person violating s.
346.63 (2) or
(6) is guilty of a Class H felony if the person has one or more prior convictions, suspensions, or revocations, as counted under s.
343.307 (1). If there was a minor passenger under 16 years of age in the motor vehicle at the time of the violation that gave rise to the conviction under s.
346.63 (2) or
(6), the offense is a felony and the applicable maximum fines or periods of imprisonment for the conviction are doubled.
346.65(3r)
(3r) Subject to sub.
(3t), in any county that opts to offer a reduced minimum period of imprisonment for the successful completion of a probation period that includes alcohol and other drug treatment, any person violating s.
346.63 (2) or
(6) shall be fined the same as under sub.
(3m), but the period of imprisonment shall be not less than 30 days, except that if the person successfully completes a period of probation that includes alcohol and other drug treatment, the period of imprisonment shall be not less than 15 days. If there was a minor passenger under 16 years of age in the motor vehicle at the time of the violation that gave rise to the conviction under s.
346.63 (2) or
(6), the offense is a felony, the applicable minimum and maximum fines or periods of imprisonment for the conviction are doubled and the place of imprisonment shall be determined under s.
973.02. A person may be sentenced under this subsection or under sub.
(2) (bm) or
(cm) or
(2j) (bm) or
(cm) once in his or her lifetime. This subsection does not apply to a person sentenced under sub.
(3p).
346.65(3t)
(3t) If the person injured was an adult who was in the vehicle operated by the person violating s.
346.63 (2) or
(6), the court may impose a sentence that is less than the minimum sentence required under sub.
(3m) if the court finds that the best interest of the community will be served and the public will not be harmed by the sentence, and the court places the reasons for imposing a sentence that is less than the minimum sentence required under sub.
(3m) on the record.
346.65(4)
(4) Any person violating s.
346.64 may be fined not less than $50 nor more than $500 or imprisoned not more than 6 months or both.
346.65(4m)
(4m) Except as provided in sub.
(5m), any person violating s.
346.62 (2m) shall forfeit not less than $300 nor more than $1,000.
346.65(4r)(a)(a) If a court imposes a forfeiture under sub.
(4m) for a violation of s.
346.62 (2m), the court shall also impose a railroad crossing improvement surcharge under ch.
814 equal to 50 percent of the amount of the forfeiture.
346.65(4r)(b)
(b) If a forfeiture is suspended in whole or in part, the railroad crossing improvement surcharge shall be reduced in proportion to the suspension.
346.65(4r)(c)
(c) If any deposit is made for an offense to which this subsection applies, the person making the deposit shall also deposit a sufficient amount to include the railroad crossing improvement surcharge under this subsection. If the deposit is forfeited, the amount of the railroad crossing improvement surcharge shall be transmitted to the secretary of administration under par.
(d). If the deposit is returned, the amount of the railroad crossing improvement surcharge shall also be returned.
346.65(4r)(d)
(d) The clerk of the circuit court shall collect and transmit to the county treasurer the railroad crossing improvement surcharge as required under s.
59.40 (2) (m). The county treasurer shall then pay the secretary of administration as provided in s.
59.25 (3) (f) 2. The secretary of administration shall deposit all amounts received under this paragraph in the transportation fund to be appropriated under s.
20.395 (2) (gj).
346.65(5m)
(5m) If an operator of a vehicle violates s.
346.62 (2) to
(4) where persons engaged in work in a highway maintenance or construction area or in a utility work area are at risk from traffic or where sanitation workers are at risk from traffic and the operator knows or should know that sanitation workers are present, any applicable minimum and maximum forfeiture or fine specified in sub.
(1),
(3),
(4m), or
(5) for the violation shall be doubled.
346.65 History
History: 1971 c. 278;
1973 c. 218;
1977 c. 193;
1979 c. 221;
1981 c. 20;
1985 a. 80,
337;
1987 a. 3,
27,
398,
399;
1989 a. 105,
176,
271;
1991 a. 39,
251,
277,
315;
1993 a. 198,
317,
475;
1995 a. 44,
338,
359,
425;
1997 a. 27,
135,
199,
237,
277,
283,
295;
1999 a. 32,
109;
2001 a. 16 ss.
3443k,
4060gm,
4060hw,
4060hy;
2001 a. 109;
2003 a. 33,
97,
139,
326;
2005 a. 149,
317,
389;
2007 a. 97,
111;
2009 a. 100,
180;
2011 a. 258;
2013 a. 39,
224;
2015 a. 55,
371;
2017 a. 34,
363; s. 35.17 correction in (2q).
346.65 Cross-reference
Cross-reference: For suspension or revocation of operating privileges upon convictions for OWI see s.
343.30.
346.65 Annotation
Penalty provisions of sub. (2) are mandatory and apply to subsequent violations committed prior to a conviction for the 1st offense. State v. Banks,
105 Wis. 2d 32,
313 N.W.2d 67 (1981).
346.65 Annotation
When the accused was represented by counsel in proceedings leading to the 2nd conviction, but not the first, there was no violation of the right to counsel precluding incarceration for the 2nd conviction since the first offense was a civil forfeiture case. State v. Novak,
107 Wis. 2d 31,
318 N.W.2d 364 (1982).
346.65 Annotation
Under sub. (3), a fine is mandatory but a jail sentence is discretionary. State v. McKenzie,
139 Wis. 2d 171,
407 N.W.2d 274 (Ct. App. 1987).
346.65 Annotation
Probation with a condition of 30-days' confinement in the county jail is inadequate to meet the mandatory imprisonment requirement of sub. (2) (c) [now sub. (2) (am) 3.]. State v. Meddaugh,
148 Wis. 2d 204,
435 N.W.2d 269 (Ct. App. 1988).
346.65 Annotation
An OWI conviction in another state need not be under a law with the same elements as the Wisconsin statute to be counted as a prior conviction. State v. White,
177 Wis. 2d 121,
501 N.W.2d 463 (Ct. App. 1993).
346.65 Annotation
A judgment entered in municipal court against a defendant for what is actually a second or subsequent offense is void. The state may proceed against the defendant criminally regardless of whether the judgment in municipal court is vacated. City of Kenosha v. Jensen,
184 Wis. 2d 91,
516 N.W.2d 4 (Ct. App. 1994).
346.65 Annotation
The general requirements for establishing prior criminal offenses in s. 973.12 are not applicable to the penalty enhancement provisions for drunk driving offenses under sub. (2). There is no presumption of innocence accruing to the defendant as to prior convictions, but the accused must have an opportunity to challenge the existence of the prior offense. State v. Wideman,
206 Wis. 2d 91,
556 N.W.2d 737 (1996),
95-0852.
346.65 Annotation
Sub. (2) is primarily a penalty enhancement statute. When a prior conviction is determined to be constitutionally defective, that conviction cannot be relied on for either charging or sentencing a present offense. State v. Foust,
214 Wis. 2d 568,
570 N.W.2d 905 (Ct. App. 1997),
97-0499.
346.65 Annotation
A trial court cannot accept guilty pleas to both a second and a third offense OWI, and then apply the increased penalties of third offense OWI to the second offense conviction at sentencing. There must be a conviction before the graduated penalties can be used. State v. Skibinski,
2001 WI App 109,
244 Wis. 2d 229,
629 N.W.2d 12,
00-1278.
346.65 Annotation
A defendant convicted of a second or subsequent OWI is subject to the penalty enhancements provided for in both sub. (2) and s. 939.62, if the application of each enhancer is based on a separate and distinct prior conviction or convictions. State v. Delaney,
2003 WI 9,
259 Wis. 2d 77,
658 N.W.2d 416,
01-1051.
346.65 Annotation
Nothing in sub. (2m) (a) prohibits chief judges from linking the aggravating and mitigating factors with an appropriate sentence within the broader range of sentences allowed under this section when adopting guidelines for their districts. A court may refer to the guidelines when sentencing under s. 346.63 (1) (a), but as the guidelines specifically only apply to s. 343.63 (1) (b) and (5), it is inappropriate for a court to apply the guidelines as the sole basis for its sentence in a s. 346.63 (1) (a) case. That the various judicial districts have different guidelines and defendants may receive different sentences based on where the crime was committed does not make guidelines adopted under sub. (2m) (a) unconstitutional. State v. Jorgensen,
2003 WI 105,
264 Wis. 2d 157,
667 N.W.2d 318,
01-2690.
346.65 Annotation
The proper time to determine the number of a defendant's prior OWI convictions for sentence enhancement purposes is at sentencing, regardless of whether some convictions may have occurred after a defendant committed the present offense. State v. Matke,
2005 WI App 4,
278 Wis. 2d 403,
692 N.W.2d 265,
03-2278.
346.65 Annotation
Although the defendant's Michigan and Wisconsin convictions stemmed from one continuous stint of driving, they arose from two separate incidents — one incident in Michigan and one incident in Wisconsin. Because the extraterritorial jurisdiction exceptions in Wisconsin and Michigan were not applicable to the defendant's separate convictions in Wisconsin and Michigan, each state had jurisdiction only over his act of driving while intoxicated within each state's own boundaries. State v. Holder,
2011 WI App 116,
337 Wis. 2d 79,
803 N.W.2d 82,
09-2952.
346.65 Annotation
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.
346.65 Annotation
A circuit court lacks competency but retains subject matter jurisdiction when the court enters a civil forfeiture judgment under a municipal ordinance for a first-offense OWI that factually should have been criminally charged as a second-offense OWI under sub. (2) due to an undiscovered prior countable conviction. Unlike defects in subject matter jurisdiction, challenges to circuit court competency may be forfeited. In this case, the defendant forfeited the right to challenge a 1992 first-offense OWI judgment by failing to timely raise the challenge. City of Eau Claire v. Booth,
2016 WI 65,
370 Wis. 2d 595,
882 N.W.2d 738,
15-0869.
346.65 Annotation
When a person is charged under s. 346.63 (1) with a 2nd offense, the charge may not be reduced to a first offense and the court may not sentence under sub. (2) (a) 1. [now sub. (2) (a) 1m.]. The department of transportation must treat this as a 2nd offense for purposes of revocation. 69 Atty. Gen. 47.
346.65 Annotation
An uncounseled civil forfeiture conviction may provide the basis for criminal penalties for a subsequent offense. Schindler v. Clerk of Circuit Court,
715 F.2d 341 (1983).
346.65 Annotation
New Law's `Get Tough' Provisions Fall Short of the Mark. Pangman & Mutschler. Wis. Law. Feb. 1993.
346.65 Annotation
Targeting the Repeat Offender. Emerson & Maasen. Wis. Law. Feb. 1993.
346.65 Annotation
Wisconsin's New OWI Law. Mishlove & Stuckert. Wis. Law. June 2010.
346.655
346.655
Driver improvement surcharge. 346.655(1)(1)
If a court imposes a fine or a forfeiture for a violation of s.
346.63 (1) or
(5), or a local ordinance in conformity therewith, or s.
346.63 (2) or
(6) or
940.25, or s.
940.09 where the offense involved the use of a vehicle, it shall impose a driver improvement surcharge under ch.
814 in an amount of $435 in addition to the fine or forfeiture, plus costs, fees, and other surcharges imposed under ch.
814.
346.655(2)(a)(a) Except as provided in par.
(b), the clerk of court shall collect and transmit the amount under sub.
(1) to the county treasurer as provided in s.
59.40 (2) (m). The county treasurer shall then make payment of 49.7 percent of the amount to the secretary of administration as provided in s.
59.25 (3) (f) 2. 346.655(2)(b)
(b) If the forfeiture is imposed by a municipal court, the court shall transmit the amount to the treasurer of the county, city, town, or village, and that treasurer shall make payment of 49.7 percent of the amount to the secretary of administration as provided in s.
66.0114 (1) (bm). The treasurer of the city, town, or village shall transmit the remaining 50.3 percent of the amount to the treasurer of the county.
346.655(3)(a)(a) Except as provided in par.
(b), all moneys collected from the driver improvement surcharge that are transmitted to the county treasurer under sub.
(2) (a) or
(b), except the amounts that the county treasurer is required to transmit to the secretary of administration under sub.
(2) (a) or
(b), shall be retained by the county treasurer and disbursed to the county department under s.
51.42 for services under s.
51.42 for drivers referred through assessment.
346.655(3)(b)
(b) If a person receives treatment from an approved tribal treatment facility, as defined in s.
51.01 (2c), in accordance with a driver safety plan under s.
343.30 (1q) (d), the county treasurer shall transmit the amount collected from the person's driver improvement surcharge except the amounts that the treasurer is required to transmit to the secretary of administration under sub.
(2) (a) or
(b), to the facility for treatment services for drivers referred through assessment.
346.655(4)
(4) Any person who fails to pay a driver improvement surcharge imposed under sub.
(1) is subject to s.
343.30 (1z).
346.655 History
History: 1981 c. 20;
1981 c. 314;
1983 a. 27 s.
2202 (20);
1985 a. 29,
337;
1987 a. 3,
27,
399;
1989 a. 31,
105;
1991 a. 39;
1993 a. 16;
1995 a. 27,
201;
1997 a. 27;
1999 a. 109;
1999 a. 150 s.
672;
2001 a. 16,
104;
2003 a. 30,
33,
139,
326;
2007 a. 111;
2009 a. 100;
2013 a. 20,
246.
346.655 Annotation
Imprisonment or suspension of a license under s. 345.47 (1) (a) and (b) does not eliminate the liability of a defendant for payment of a surcharge under this section.
73 Atty. Gen. 24.
346.657
346.657
Safe ride program surcharge. 346.657(1)(1)
If a court imposes a fine or a forfeiture for a violation of s.
346.63 (1) or
(5), or a local ordinance in conformity therewith, or s.
346.63 (2) or
(6) or
940.25, or s.
940.09 where the offense involved the use of a vehicle, it shall impose a safe ride program surcharge under ch.
814 in an amount of $50 in addition to the fine or forfeiture, plus costs, fees, and other surcharges imposed under ch.
814.
346.657(2)(a)(a) Except as provided in par.
(b), the clerk of court shall collect and transmit the amount under sub.
(1) to the county treasurer as provided in s.
59.40 (2) (m). The county treasurer shall then make payment to the secretary of administration as provided in s.
59.25 (3) (f) 2. 346.657(2)(b)
(b) If the forfeiture is imposed by a municipal court, the court shall transmit the amount under sub.
(1) to the treasurer of the county, city, town, or village, and that treasurer shall make payment to the secretary of administration as provided in s.
66.0114 (1) (bm).
346.657(3)
(3) Any person who fails to pay a driver improvement surcharge imposed under sub.
(1) is subject to s.
343.30 (1z).
346.657 History
History: 2015 a. 55.
ACCIDENTS AND ACCIDENT REPORTS
346.66
346.66
Applicability of sections relating to accidents and accident reporting. 346.66(1)(a)
(a) In addition to being applicable upon highways, ss.
346.67 to
346.70 are applicable upon all premises held out to the public for use of their motor vehicles, all premises provided by employers to employees for the use of their motor vehicles, and all premises provided to tenants of rental housing in buildings of 4 or more units for the use of their motor vehicles, whether such premises are publicly or privately owned and whether or not a fee is charged for the use thereof.
346.66(1)(b)
(b) Except as provided in sub.
(2), ss.
346.67 to
346.70 do not apply to private parking areas at farms or single-family residences.
346.66(1)(c)
(c) Sections
346.67 to
346.70 do not apply to accidents involving only snowmobiles, all-terrain vehicles, utility terrain vehicles, off-highway motorcycles, as defined in s.
23.335 (1) (q), that were being operated off the highways, as defined in s.
23.335 (1) (y), or vehicles propelled by human power or drawn by animals.
346.66(2)(a)(a) Sections
346.67,
346.68, and
346.69 apply to the operator of a vehicle that, whether by operator intention or lack of control, departs a highway or premises described in sub.
(1) (a) immediately prior to an accident if the accident does not occur on real property owned or leased by the operator.
346.66 Annotation
The test for whether a premises is held out to the public is whether on any given day, potentially any resident of the community with a driver's license and access to a motor vehicle could use the premises in an authorized manner. State v. Carter,
229 Wis. 2d 200,
598 N.W.2d 619 (Ct. App. 1999),
98-1688.
