Chapter 345

345.31 345.31 Venue in traffic regulation actions. Section 971.19 on place of trial in criminal actions applies to actions for the violation of traffic regulations and nonmoving traffic violations except that, in the case of a violation of an ordinance of a municipality which is located in more than one county, the action may be brought in any court sitting in that municipality even though in another county. As an alternative, the plaintiff may bring the action in the county where the defendant resides.

345.31 History History: 1971 c. 278; 1981 c. 165.

345.315 345.315 Change of judge.

345.315(1) (1) In traffic regulation and nonmoving traffic violation cases a person charged with a violation may file a written request for a substitution of a different judge for the judge originally assigned to the trial of that case. The written request shall be filed not later than 7 days after the initial appearance in person or by an attorney. If a new judge is assigned to the trial of a case and the defendant has not exercised the right to substitute an assigned judge, a written request for the substitution of the new judge may be filed within 10 days of the giving of actual notice or sending of the notice of assignment to the defendant or the defendant’s attorney. If the notification occurs within 10 days of the date set for trial, the request shall be filed within 48 hours of the giving of actual notice or sending of the notice of assignment to the defendant or the defendant’s attorney. If the notification occurs within 48 hours of the trial or if there has been no notification, the defendant may make an oral or written request for substitution prior to the commencement of the proceedings. The judge against whom a request has been filed may set initial bail and accept a plea.

345.315(1m) (1m) When the clerk of court receives a request for substitution, the clerk shall immediately contact the judge whose substitution has been requested for a determination of whether the request was made timely and in proper form. If the request is found to be timely and in proper form, the judge named in the request has no further jurisdiction and the clerk shall request the assignment of another judge under s. 751.03. If no determination is made within 7 days, the clerk shall refer the matter to the chief judge of the judicial administrative district for determination of whether the request was made timely and in proper form and reassignment as necessary.

345.315(2) (2) Except as provided in sub. (5), no more than one judge can be disqualified in any action.

345.315(3) (3) In a court of record assignment of judges shall be made as provided in s. 751.03.

345.315(4) (4) In municipal court a case shall be transferred as provided in ss. 751.03 (2) and 800.05.

345.315(5) (5) If upon an appeal from a judgment or order or upon a writ of error the appellate court orders a new trial or reverses or modifies the judgment or order in a manner such that further proceedings in the trial court are necessary, the person charged with a violation may file a request under sub. (1) within 20 days after the entry of the judgment or decision of the appellate court whether or not another request was filed prior to the time the appeal or writ of error was taken.

345.315 History History: 1971 c. 278; 1973 c. 218; 1977 c. 135; 1977 c. 187 s. 135; 1977 c. 305, 449; 1979 c. 32 s. 92 (1), (17); 1981 c. 165; 1983 a. 218; 1987 a. 151.

345.315 Note Judicial Council Note, 1977: This section has been amended so that a judge against whom a substitution of judge request has been filed in traffic regulation cases may, however, set initial bail and accept a plea. The provision that all defendants must join in any substitution of judge request has been deleted to conform to a provision in chapter 149, laws of 1975. In addition, the transfer fee from municipal to county court has been deleted and a municipal justice will no longer retain the option of transferring the case to another municipal justice rather than county court when a request for substitution has been filed against him or her. [Bill 74-S]

345.315 Note Judicial Council Note, 1983: Sub. (1) is amended by conforming the procedure for requesting the substitution of a judge other than the judge originally assigned to the trial of a traffic regulation case to that specified for criminal actions in s. 971.20 (5), stats. The time deadlines are made to run from the time of giving actual notice or sending the notice of assignment to the defendant or the defendant’s attorney rather than receipt thereof, which is difficult to determine and therefore causes problems in the administration of justice. [Bill 148-S]

345.32 345.32 Initial appearance before judge. If a defendant is arrested and brought without unreasonable delay before a judge who, or a court which, does not have jurisdiction to try the case, the defendant shall be committed to await trial in a court with jurisdiction and all papers shall be sent forthwith to that court. In lieu of commitment, the judge may release the defendant if the defendant posts bond for the defendant’s appearance in such court, or the judge may release the defendant on the defendant’s recognizance for such appearance, or the judge may release the defendant without bail. The court to which the case is sent may similarly release the defendant.

345.32 History History: 1971 c. 278; 1991 a. 316.

345.34 345.34 Arraignment; pleas.

345.34(1) (1) If the defendant appears in response to a citation, or is arrested and brought before a court with jurisdiction to try the case, the defendant shall be informed that he or she is entitled to a jury trial. The defendant may plead guilty, not guilty, or no contest. If the defendant requests a continuance at the initial appearance, the court shall adjourn the arraignment without entering any plea.

345.34(2) (2) If the defendant pleads guilty or no contest, the court shall accept the plea, find the defendant guilty and proceed under s. 345.47.

345.34(3) (3) If a summons is served or citation is issued by a police officer for a violation of any municipal ordinance or of chs. 194 or 340 to 348 and 350, the defendant may enter a plea of not guilty based on such summons or citation by letter to the judge at the address indicated on the summons or citation, the letter to show the defendant’s return address. The letter may include a request for trial during normal daytime business hours. Upon receipt of the letter, the judge shall reply by mail to the defendant’s address setting forth a time and place for trial, the time to be during normal business hours if requested by the defendant. The date of the trial shall be at least 10 days from the mailing by the judge. Nothing in this subsection forbids the setting of the trial at any time convenient to all parties concerned.

345.34 History History: 1971 c. 278; 1973 c. 218; 1977 c. 305; 1991 a. 316; 2017 a. 40.

345.34 Annotation Courts may not dismiss traffic complaints on the payment of a penalty and costs, or costs alone. 63 Atty. Gen. 328.

345.36 345.36 Not guilty plea; failure to appear.

345.36(1) (1) Except as provided in this subsection, if the defendant pleads not guilty, the court shall set a future date for trial or advise the defendant that notice will later be sent of the date set for trial. If the defendant appears in response to a nonmoving traffic violation under s. 345.28, the court may provide an immediate trial. The court shall release the defendant if he or she posts an appearance bond, or the court may release the defendant on recognizance or without bail. A defendant not so released shall be committed to jail to await trial.

345.36(2) (2) If a defendant fails to appear at the date set under sub. (1), the court shall either:

345.36(2)(a) (a) Issue a warrant under ch. 968 and, if the defendant has posted bond for appearance at that date, the court may order the bond forfeited; or

345.36(2)(b) (b) Deem the nonappearance a plea of no contest and enter judgment accordingly. If the defendant has posted bond for appearance at that date, the court may also order the bond forfeited. The court shall promptly mail a copy of the judgment to the defendant. The judgment shall allow not less than 20 days from the date thereof for payment of any forfeiture, plus costs, fees, and surcharges imposed under ch. 814. If the defendant moves to open the judgment within 20 days after the date set for trial, and shows to the satisfaction of the court that the failure to appear was due to mistake, inadvertence, surprise, or excusable neglect, the court shall open the judgment, reinstate the not guilty plea, and set a new trial date. The court may impose costs under s. 814.07. The court shall immediately notify the department to delete the record of conviction based upon the original judgment.

345.36(3) (3) If the offense involved is a nonmoving traffic violation and the defendant is subject to s. 345.28 (5) (c), a default judgment may be entered and opened as provided in s. 345.28 (5) (c).

345.36 History History: 1971 c. 278; 1983 a. 231; 1987 a. 27; 1991 a. 39; 1993 a. 16; 1997 a. 27, 135; 2001 a. 16; 2003 a. 139; 2017 a. 40.

345.37 345.37 Procedure on default of appearance. If the defendant fails to appear in court at the time fixed in the citation or by subsequent postponement, or, if an ordinance under s. 345.28 (2) (d) applies, not less time than the period established in an ordinance under s. 345.28 (2) (d) has elapsed since the person was charged with a nonmoving violation, the following procedure shall apply:

345.37(1) (1) If the defendant has not made a deposit under s. 345.26, the court shall either:

345.37(1)(a) (a) Issue a warrant under ch. 968 and, if the defendant has posted a bond for appearance at that date, the court may order the bond forfeited; or

345.37(1)(b) (b) Deem the nonappearance a plea of no contest and enter judgment accordingly. If the defendant has posted bond for appearance at that date, the court may also order the bond forfeited. The court shall promptly mail a copy or notice of the judgment to the defendant. The judgment shall allow not less than 20 days from the date thereof for payment of any forfeiture, plus costs, fees, and surcharges imposed under ch. 814. If the defendant moves to open the judgment within 6 months after the court appearance date fixed in the citation, and shows to the satisfaction of the court that the failure to appear was due to mistake, inadvertence, surprise, or excusable neglect, the court shall open the judgment, accept a not guilty plea, and set a trial date. The court may impose costs under s. 814.07. The court shall immediately notify the department to delete the record of conviction based upon the original judgment. If the offense involved is a nonmoving traffic violation and the defendant is subject to s. 345.28 (5) (c), a default judgment may be entered and opened as provided in s. 345.28 (5) (c).

345.37(2) (2) If the defendant has made a deposit under s. 345.26, the citation may serve as the initial pleading and the defendant shall be deemed to have tendered a plea of no contest and submitted to a forfeiture, plus costs, fees, and surcharges imposed under ch. 814, not exceeding the amount of the deposit. The court may either accept the plea of no contest and enter judgment accordingly, or reject the plea and issue a summons under ch. 968. If the defendant fails to appear in response to the summons, the court shall issue a warrant under ch. 968. If the court accepts the plea of no contest, the defendant may move within 6 months after the date set for the appearance to withdraw the plea of no contest, open the judgment, and enter a plea of not guilty upon a showing to the satisfaction of the court that the failure to appear was due to mistake, inadvertence, surprise, or excusable neglect. If on reopening the defendant is found not guilty, the court shall immediately notify the department to delete the record of conviction based on the original proceeding and shall order the defendant’s deposit returned.

345.37(5) (5) Within 5 working days after forfeiture of deposit or entry of default judgment, the official receiving the forfeiture, plus costs, fees, and surcharges imposed under ch. 814, shall forward to the department a certification of the entry of default judgment or a judgment of forfeiture.

345.37(6) (6) Any person who fails to comply with this section relative to forwarding records of convictions to the department may be fined not more than $100.

345.37 History History: 1971 c. 278; 1973 c. 218; 1975 c. 231, 421; 1977 c. 29 ss. 1472 to 1475, 1654 (7) (a), (c); 1977 c. 273, 305; 1981 c. 317; 1985 a. 29; 1987 a. 27, 267, 399; 1989 a. 107, 170; 1991 a. 39; 1993 a. 16; 1997 a. 27, 135, 237; 1999 a. 9; 2001 a. 16; 2003 a. 139; 2015 a. 60.

345.37 Annotation Motion costs under s. 814.07 on motions brought to open judgments entered on a forfeiture actions under this section may not be imposed by a blanket order. Discretion must be exercised by the court in each case. OAG 1-00.

345.375 345.375 Judgment against a corporation or limited liability company.

345.375(1) (1) If a corporation or limited liability company fails to appear within the time required by the citation, the default of such corporation or limited liability company may be recorded and the charge against it taken as true and judgment shall be rendered accordingly.

345.375(2) (2) Upon default of the defendant corporation or limited liability company or upon conviction, judgment for the amount of the forfeiture, plus costs, fees, and surcharges imposed under ch. 814, shall be entered.

345.375 History History: 1973 c. 218; 1977 c. 29; 1987 a. 27; 1989 a. 107; 1993 a. 112; 1997 a. 27; 1999 a. 9; 2001 a. 16; 2003 a. 139.

345.38 345.38 Effect of plea of no contest. The forfeiture of a deposit under s. 345.37 (2) to a charge of violation of a traffic regulation shall not be admissible in evidence as an admission against interest in any action or proceeding arising out of the same occurrence as the charge of violation of a traffic regulation.

345.38 History History: 1971 c. 278; 1989 a. 170.

345.40 345.40 Pleading. A citation which complies with s. 345.11 or a complaint which complies with the appropriate provisions of ch. 968 may be used as the initial pleading, or the municipal judge, clerk or a deputy of the clerk may enter upon the records of the court a statement of the offense charged, which shall stand as a complaint, unless the court directs that formal complaint be made. Several counts may be joined in one complaint or a separate complaint may be prepared for each separate violation. The defendant’s plea shall be guilty, no contest or not guilty and shall be entered as not guilty upon failure to plead. A plea of not guilty shall put all matters in such case at issue.

345.40 History History: 1971 c. 278; 1985 a. 332.

345.41 345.41 Motion to dismiss. Defenses which could be taken by pleas in abatement, in bar, demurrers and motions to quash shall be raised by motion to dismiss, which motion shall be made before any trial on the merits, or be waived.

345.41 History History: 1971 c. 278.

345.42 345.42 Preliminary proceedings.

345.42(1) (1) In civil actions under this chapter, oral argument permitted on motions under s. 345.41 or 345.421 may be heard by telephone under s. 807.13 (1). Any pretrial or scheduling conference may be conducted by telephone under s. 807.13 (3) and any pretrial conference may be conducted on the trial date.

345.42(2) (2) There shall be no preliminary examination.

345.42 History History: 1971 c. 278; Sup. Ct. Order, 141 Wis. 2d xiii (1987).

345.42 Annotation Summary judgment procedure is inconsistent with, and unworkable in, ch. 345 forfeiture proceedings. State v. Schneck, 2002 WI App 239, 257 Wis. 2d 704, 652 N.W.2d 434, 02-0513.

345.421 345.421 Discovery. Neither party is entitled to pretrial discovery except that if the defendant moves within 10 days after the alleged violation and shows cause therefor, the court may order that the defendant be allowed to inspect and test under s. 804.09 and under such conditions as the court prescribes, any devices used by the plaintiff to determine whether a violation has been committed, including without limitation, devices used to determine presence of alcohol in breath or body fluid or to measure speed, and may inspect under s. 804.09 the reports of experts relating to those devices.

345.421 History History: 1971 c. 278; Sup. Ct. Order, 67 Wis. 2d 585, 776 (1975); 1975 c. 218.

345.421 Annotation This section applies to civil as well as criminal traffic charges. City of Lodi v. Hine, 107 Wis. 2d 118, 318 N.W.2d 383 (1982).

345.421 Annotation When blood alcohol content is tested under statutory procedures, the results of the test are mandatorily admissible. The physical sample tested is not evidence intended, required, or even susceptible of being produced by the state under s. 971.23. State v. Ehlen, 119 Wis. 2d 451, 351 N.W.2d 503 (1984).

345.422 345.422 No guardian ad litem. No guardian ad litem need be appointed for any defendant.

345.422 History History: 1971 c. 278.

345.425 345.425 Mode of trial.

345.425(1) (1) The defendant shall be informed of his or her right to a jury trial in circuit court on payment of fees required by s. 345.43 (1).

345.425(2) (2) If both parties, in a court of record, request a trial by the court or if neither demands a trial by jury, the right to a trial by jury is waived.

345.425 History History: 1971 c. 278; 1977 c. 305; 1977 c. 449 s. 497.

345.43 345.43 Jury trial.

345.43(1) (1) If a case has been transferred under s. 800.035 (5) (c), or if in circuit court either party files a written demand for a jury trial within 10 days after the defendant enters a plea of not guilty under s. 345.34 and immediately pays the fee prescribed in s. 814.61 (4), the court shall place the case on the jury calendar of the circuit court. The number of jurors shall be 6. If no party demands a trial by jury, the right to trial by jury is permanently waived.

345.43(3) (3) 

345.43(3)(a) (a) In counties having a population of 750,000 or more, the jury shall be selected from the circuit court prospective juror list as set forth under chs. 801 to 847. In all other counties, juries shall be selected as provided in par. (b), except that the clerk shall randomly select the names of sufficient persons qualified to serve as jurors as will provide to each party entitled to peremptory challenges 5 peremptory challenges.

345.43(3)(b) (b) If a timely demand for a jury is made, the judge shall direct the clerk of the court to select at random from the prospective juror list the names of a sufficient number of prospective jurors, from which list either party may strike 5 names. If either party neglects to strike out names, the clerk shall strike out names for the party. The judge shall permit voir dire examinations and challenges for cause. The clerk shall summon a sufficient number of persons whose names are not struck out, to appear at the time and place named in the summons.

345.43(5) (5) In a jury trial of a traffic regulation case, the court is not required to provide the jury with one complete set of written instructions under s. 805.13 (4).

345.43 History History: 1971 c. 278; 1973 c. 218; Sup. Ct. Order, 67 Wis. 2d 585, 773 (1975); 1975 c. 231, 291; 1977 c. 187 s. 135; 1977 c. 305, 318, 447, 449; 1979 c. 32 s. 92 (17); 1979 c. 89, 128; 1981 c. 317; 1985 a. 170; 1987 a. 389; 1991 a. 271, 315; 1995 a. 427; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); 2009 a. 402; 2017 a. 207 s. 5.

345.43 Annotation The requirement that the defendant prepay jury fees in civil traffic forfeiture actions is constitutional. State v. Graf, 72 Wis. 2d 179, 240 N.W.2d 387 (1976).

345.43 Annotation The 10-day period for a jury demand did not begin at the initial appearance when the accused requested a continuance rather than entering plea under s. 345.34 (1). City of Madison v. Donohoo, 118 Wis. 2d 646, 348 N.W.2d 170 (1984).

345.43 Annotation The provision under this section for a 6, rather than 12, person jury for a speeding violation does not violate Art. I, s. 5, which provides that the right of trial by jury shall remain inviolate. Dane County v. McGrew, 2005 WI 130, 285 Wis. 2d 519, 699 N.W.2d 890, 03-1794.

345.45 345.45 Burden of proof. The standard of proof for conviction of any person charged with violation of any traffic regulation shall be evidence that is clear, satisfactory and convincing.

345.45 History History: 1973 c. 218.

345.46 345.46 Verdict. A verdict is valid if agreed to by five-sixths of the jury. If a verdict relates to more than one count, it shall be valid as to any count if any five-sixths of the jury agree thereto. The form of the verdict shall be guilty or not guilty, except where it is necessary to determine speed. The amount of the forfeiture shall be determined by the court after the court makes its finding.

345.46 History History: 1971 c. 278.

345.47 345.47 Judgment of forfeitures, costs, fees, and surcharges.

345.47(1) (1) If the defendant is found guilty, the court may enter judgment against the defendant for a monetary amount not to exceed the maximum forfeiture provided for the violation, plus costs, fees, and surcharges imposed under ch. 814, and, in addition, may suspend or revoke his or her operating privilege under s. 343.30. Upon entering judgment, the court shall notify the defendant personally, if the defendant is present, and in writing that the defendant should notify the court if he or she is unable to pay the judgment because of poverty, as that term is used in s. 814.29 (1) (d). If the defendant is present and the court, using the criteria in s. 814.29 (1) (d), determines that the defendant is unable to pay the judgment because of poverty, the court shall provide the defendant with an opportunity to pay the judgment in installments, taking into account the defendant’s income. If the judgment is not paid or if the defendant fails to make any ordered installment payment, the court shall order:

345.47(1)(a) (a) That, subject to s. 800.095 (1) (b), the defendant be imprisoned for a time specified by the court until the judgment is paid, but not to exceed 90 days; or

345.47(1)(b) (b) In lieu of imprisonment and in addition to any other suspension or revocation, that the defendant’s operating privilege be suspended. The operating privilege shall be suspended for 30 days or until the person pays the forfeiture, plus costs, fees, and surcharges imposed under ch. 814, but not to exceed one year. If the defendant has notified the court that he or she is unable to pay the judgment because of poverty, and if the court, using the criteria in s. 814.29 (1) (d), determines that the defendant is unable to pay the judgment because of poverty, the court may not suspend the defendant’s operating privilege without first providing the defendant with an opportunity to pay the judgment in installments, taking into account the defendant’s income. Suspension under this paragraph shall not affect the power of the court to suspend or revoke under s. 343.30 or the power of the secretary to suspend or revoke the operating privilege. This paragraph does not apply if the judgment was entered solely for violation of an ordinance unrelated to the violator’s operation of a motor vehicle.

345.47(1)(c) (c) If a court suspends an operating privilege under this section, the court may take possession of the suspended license. If the court takes possession of a license, it shall destroy the license. The court shall forward to the department the notice of suspension, which shall clearly state that the suspension was for failure to pay a forfeiture, plus costs, fees, and surcharges imposed under ch. 814 or for failure to comply with an installment payment plan ordered by the court. The notice of suspension shall be forwarded to the department within 48 hours after the order of suspension. If the forfeiture, plus costs, fees, and surcharges imposed under ch. 814, are paid during a period of suspension, or if the court orders an installment payment plan under sub. (4), the court shall immediately notify the department.

345.47(1)(d) (d) In addition to or in lieu of imprisonment or suspension under par. (a) or (b), the court may notify the department, in the form and manner prescribed by the department, that a judgment has been entered against the defendant and remains unpaid, or that the defendant has failed to comply with an installment payment plan ordered under this section. The notice shall include the name and last-known address of the person against whom the judgment was entered, the date judgment was entered, the amount of the judgment, the license number of the vehicle involved, certification by the court that a warrant has been served on the person against whom the judgment was entered or, in the case of a judgment entered under s. 345.28, that the person has been notified of the entry of judgment and the judgment or installments remain unpaid and the place where the judgment or installments may be paid. If the person subsequently pays the judgment or complies with the installment payment plan the court shall immediately notify the department of the payment in the form and manner prescribed by the department.

345.47(1m) (1m) If the action is in municipal court, the court shall determine, at the time of entering judgment under sub. (1), whether incarceration may be ordered for noncompliance with a judgment or order under this section. If incarceration may be ordered because of the defendant’s subsequent noncompliance with the judgment, the provisions of s. 800.095 (1) (b) apply.

345.47(2) (2) Except in those cases in which the court orders payment by installments, the payment of any judgment may be suspended or deferred for not more than 60 days in the discretion of the court. In cases where a deposit has been made, any forfeitures, plus costs, fees, and surcharges imposed under ch. 814, shall be taken out of the deposit and the balance, if any, returned to the defendant.

345.47(3) (3) When a defendant is imprisoned for nonpayment of a forfeiture, plus costs, fees, and surcharges imposed under ch. 814, for an action brought by a municipality located in more than one county, any commitment to a county institution shall be to the county in which the action was tried.

345.47(4) (4) 

345.47(4)(a) (a) If the operating privilege of a defendant is suspended under this section, the court may terminate that suspension and substitute an installment payment plan for paying the amount of the judgment that takes into account the defendant’s income.

345.47(4)(b) (b) If the operating privilege of a defendant is suspended under this section, the court shall terminate that suspension and substitute an installment payment plan for the payment of the amount of the judgment that takes into account the defendant’s income if all of the following conditions apply:

345.47(4)(b)1. 1. The defendant is unable to pay the judgment in full because of poverty, as that term is used in s. 814.29 (1) (d).

345.47(4)(b)2. 2. The defendant has not previously failed to comply with an installment payment plan ordered under this section that takes into account the defendant’s income.