Amendment SSA1-SB66

LRBs0141/2

PJH:wlj/bjk/kjf:md

2009 - 2010 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 1, TO 2009 SENATE BILL 66

October 6, 2009 - Offered by Senators Sullivan, Taylor and Decker.

SB66-SSA1,2,7 An Act to repeal 342.12 (4) (c) 1. b., 343.301 (1) (title) and (a), 343.301 (2), 346.65 (6), 346.65 (8), 973.09 (1) (d) 1., 973.09 (1) (d) 2. and 973.09 (1) (d) 3.; to renumber and amend 343.301 (1) (c), 343.301 (1) (d), 346.65 (2) (f) and 973.09 (1) (d) (intro.); to consolidate, renumber and amend 343.301 (1) (b) 1. and 2.; to amend 139.03 (2m), 165.755 (1) (b), 302.46 (1) (a), 340.01 (46m) (c), 342.12 (4) (c) 1. c., 342.13 (1), 343.10 (2) (a) (intro.), 343.10 (5) (a) 3., 343.23 (2) (b), 343.30 (1q) (c) 1. (intro.), 343.301 (title), 346.65 (2) (am) 3., 346.65 (2) (am) 4., 346.65 (2) (am) 6., 346.65 (2) (am) 7., 346.65 (2) (bm), 346.65 (2) (cm), 346.65 (2c), 346.65 (2g) (a), 346.65 (2g) (ag), 346.65 (2j) (am) 3., 346.65 (2j) (bm), 346.65 (2j) (cm), 346.65 (2q), 346.65 (3m), 346.65 (3r), 346.65 (7), 346.655 (1), 347.413 (title) and (1), 347.417 (1), 347.417 (2), 347.50 (1s), 757.05 (1) (a), 814.60 (1), 814.63 (1) (c), 814.63 (2), 814.65 (1), 814.85 (1) (a), 814.86 (1), 969.01 (2) (a) and 973.15 (8) (a) 3.; to repeal and recreate 343.10 (2) (a) (intro.), 343.23 (2) (b), 343.305 (10m), 814.65 (1), 814.85 (1) (a), 814.86 (1), 940.09 (1d) and 940.25 (1d); and to create 110.10 (4m), 302.425 (7) (c), 343.10 (2) (f), 343.30 (1r), 343.301 (1g), 343.301 (1m), 343.301 (2r), 343.301 (3) (b), 343.301 (5), 343.305 (10g), 343.31 (4), 346.65 (2) (am) 4m., 346.65 (2) (dm), 346.65 (2) (f) 1., 346.65 (2j) (cr), 346.65 (3p), 347.50 (1t), 814.75 (9m), 814.76 (7m), 814.78 (7m), 814.79 (4r) and 973.09 (2) (am) of the statutes; relating to: operating a vehicle while intoxicated, granting rule-making authority, and providing a penalty.

Analysis by the Legislative Reference Bureau

This substitute amendment makes a number of changes relating to operating a vehicle under the influence of an intoxicant (OWI-related offense), including the following:

1. Under current law, if a person is convicted of a second OWI-related offense, a judge may immobilize the person's motor vehicles or require that the person's operating privilege be limited to operating vehicles that are equipped with an ignition interlock device. If a person is convicted of a third or subsequent OWI-related offense within five years, a judge must limit the person's operating privilege to operating vehicles that are equipped with an ignition interlock device unless the judge orders that the person's motor vehicles be immobilized or seized and sold at auction.

Current law requires the person to pay for the costs of installing and monitoring the ignition interlock device on every motor vehicle he or she owns. If the judge determines that this would work a hardship to the person, current law allows the judge to require an ignition interlock device on some, but not all, of the person's motor vehicles.

Under current law, no one may remove, disconnect, tamper with, or otherwise circumvent the operation of an ignition interlock device. A person who does so may be required to forfeit not less than $150 nor more than $600 for the first offense and, for a second or subsequent offense within five years, may be fined not less than $300 nor more than $1,000, or imprisoned for not more than six months, or both.

This substitute amendment eliminates the option of ordering the person's vehicle to be immobilized or seized and sold at auction. The substitute amendment makes it mandatory for a judge to require that the person's operating privilege be limited, for a minimum of one year, to operating vehicles that are equipped with an ignition interlock device if either of the following are true: 1) the person commits a first OWI-related offense with an alcohol concentration of 0.15 or more; or 2) the person commits a second OWI-related offense.

Under the substitute amendment, with some exceptions, the judge must order that every motor vehicle the person owns be equipped with an ignition interlock device. If the judge determines that the person's income is at or below 150 percent of the federal poverty level, the person is required to pay a $50 surcharge upon the installation of the first ignition interlock device and, for each ignition interlock device, half of the installation cost, and one-half of the cost per day toward the cost of monitoring the ignition interlock device. A person whose income is above 150 percent of the federal poverty level is required to pay the surcharge and assume the full cost of installing and monitoring each ignition interlock device. Under the substitute amendment, if a person who is ordered to do so fails to pay the surcharge or fails to have an ignition interlock device installed, he or she may not obtain an occupational license. Moneys generated by the surcharge are retained by the counties.

Under the substitute amendment, a court may order a person who removes, disconnects, tampers with, or otherwise circumvents the operation of an ignition interlock device to be imprisoned for not more than six months for a first offense. The substitute amendment also subjects a person who fails to have an ignition interlock device installed as ordered by the court to the same penalties as a person who removes, disconnects, tampers with, or otherwise circumvents the operation of an ignition interlock device.

2. Under current law, a person who is subject to a forfeiture or a fine for violating most state laws or local ordinances is also liable for a variety of penalty surcharges and court fees. In addition, a person who commits an OWI-related offense is liable for a penalty surcharge for driver improvement programs and is required to comply with an alcohol and other drug assessment before he or she is eligible for reinstatement of his or her driving privileges.

Currently, a person who commits his or her first OWI-related offense and who has a blood alcohol concentration between 0.08 and 0.099 at the time of the offense is not liable for the surcharges or fees and does not need to comply with an alcohol or other drug assessment program. Further, the Department of Transportation (DOT) must purge its records of a first offense related to driving while intoxicated after ten years; the department keeps all other records of offenses related to driving while intoxicated permanently.

Under this substitute amendment, a person who commits his or her first OWI-related offense and who has a blood alcohol concentration between 0.08 and 0.099 at the time of the violation is liable for the surcharges or fees and must comply with an alcohol or other drug assessment program before his or her driving privileges may be reinstated. Under this substitute amendment, DOT must keep a record of this offense permanently.

3. Under current law, a person who commits an OWI-related offense is subject to a forfeiture or fine and, for a second or subsequent offense, a period of imprisonment. Currently, a person who commits a first OWI-related offense is subject to a forfeiture between $150 and $300. A person who commits a second OWI-related offense is subject to a fine between $350 and $1,100 and may be imprisoned for not less than five days nor more than six months, a person who commits a third offense is subject to a fine between $600 and $2,000 and may be imprisoned for not less than 30 days nor more than one year, a person who commits a fourth offense may be fined between $600 and $2,000 and may be imprisoned for not less than 60 days nor more than one year.

Upon committing a fifth or sixth OWI-related offense, a person is guilty of a Class H felony, and is subject to a minimum fine of $600, a six-month minimum term of imprisonment, and a maximum term of imprisonment of six years. A seventh, eighth, or ninth OWI-related offense is a Class G felony, and the person is subject to a maximum fine of $25,000 and a maximum term of imprisonment of ten years. A tenth or subsequent OWI-related offense is a Class F felony, and the person is subject to a maximum fine of $25,000, and a maximum term of imprisonment of 12 years and six months.

Under current law, a person who is sentenced for a felony is sentenced to a bifurcated sentence, and the person serves a portion of his or her sentence confined in a prison and a portion under extended supervision outside of prison.

This substitute amendment makes a first OWI-related offense a crime if, at the time of the offense, a child under the age of 16 was present in the vehicle involved in the offense. Under the substitute amendment, the penalties for committing this crime are the same as for committing a second OWI-related offense.

The substitute amendment increases the minimum period of imprisonment for a third OWI-related offense to 45 days. The substitute amendment makes a fourth OWI-related offense committed within five years of a prior offense a Class H felony and requires a person who commits a fourth OWI-related offense within five years to pay a minimum fine of $600 and to serve a minimum term of six months' imprisonment. The substitute amendment requires a person who commits a seventh, eighth, or ninth OWI-related offense to serve a minimum period of confinement or three years in prison under a bifurcated sentence and requires a person who commits a tenth or subsequent OWI-related offense to serve a minimum period of confinement of four years in prison under a bifurcated sentence. Under the substitute amendment, a person who is sentenced to imprisonment in jail or placed on probation for a fourth or subsequent OWI-related offense may not serve his or her jail sentence in home detention.

4. Under current law, a person who commits an OWI-related offense and causes injury to another is subject to a fine of not less than $300 nor more than $2,000, imprisonment for not less than 30 days nor more than one year, or both.

Under this substitute amendment, a person who commits a second or subsequent OWI-related offense and causes injury to another person is guilty of a Class H felony, and is subject to a fine up to $10,000, imprisonment for not more than six years, or both.

5. 2005 Wisconsin Act 389 created a pilot program for sentencing persons in Winnebago County who are convicted of certain second or third OWI-related offenses. Under that act, the period of imprisonment for an OWI-related offense in Winnebago County may be reduced if the violator successfully completes a period of probation that includes alcohol and other drug treatment. A person may complete a treatment program and receive a reduced period of imprisonment only once.

This substitute amendment expands the sentencing option to any county that opts to allow a violator to successfully complete a period of probation that includes alcohol and other drug treatment in exchange for a shorter period of imprisonment. The substitute amendment allows these counties to offer this sentencing option to persons who commit a fourth OWI-related offense.

6. Under current law, a person who commits an OWI-related offense has his or her operating privileges revoked for a specified period. The period of revocation lengthens with each subsequent OWI-related offense, and generally begins on the date on which the person commits the OWI-related offense.

Under this substitute amendment, the period of revocation begins on the date on which the person commits the OWI-related offense, but the period of revocation is extended by the number of days that the person is required to spend in jail or prison.

7. Under current law, after a person is convicted of most crimes, the trial court may withhold the person's sentence, or impose a sentence of imprisonment but stay the imposition of imprisonment, and place the person on probation for a period of time. If the crime carries a mandatory minimum period of incarceration of one year or less, the person must be incarcerated for at least the mandatory minimum period as a condition of his or her probation.

Under current law, a trial court may not place a person on probation if the person has committed a second or third OWI-related offense or three or fewer offenses related to operating a commercial vehicle or causing injury while operating a vehicle while intoxicated or with a prohibited alcohol concentration. A trial court may place a person who commits more than three of these offenses on probation under current law; the maximum period of probation for a fourth OWI-related offence is two years.

Under this substitute amendment, a trial court may place a person who commits any of those offenses on probation. Under the substitute amendment, a person who commits an offense that carries a mandatory minimum period of incarceration of one year or less must be incarcerated for at least the mandatory minimum period as a condition of his or her probation. The substitute amendment also increases the maximum period of probation for a fourth OWI-related offence to three years.

8. Under current law, a person who is convicted of any criminal offense pays a $20 processing fee to the clerk of court. Half of this amount is retained by the county, and half goes to the general fund.

This substitute amendment increases the fee to $163. Under the substitute amendment, the county forwards 94 percent of the fees it collects for deposit into the general fund and retains 6 percent for use by the county.

9. Under current law, a trial court may, at its discretion, release a person who has been convicted of a crime from imprisonment until the time of sentencing. Current law also allows a sentencing court to delay the execution of a sentence of imprisonment for up to 60 days, unless the court finds that there is legal cause to delay the execution of the sentence for a longer period or unless the court places the person on probation.

Under this substitute amendment, if a person has been convicted of a third or subsequent OWI-related offense, a court may not release the person after conviction but before sentencing or delay the execution of a sentence of imprisonment unless the court finds that there is legal cause to delay the execution of the sentence or unless the court places the person on probation.

10. Under current law, intoxicating liquor is taxed at a rate of 85.86 cents per liter. Moneys produced by this tax go to the general fund.

This substitute amendment increases the tax on intoxicating liquor to 135.86 cents per liter. Under the substitute amendment, the moneys generated from the increased tax and clerk of court fee will go the Joint Committee on Finance and will be distributed among district attorneys, public defenders, the departments of justice and corrections, and the circuit courts.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB66-SSA1, s. 1 Section 1. 110.10 (4m) of the statutes is created to read:

SB66-SSA1,6,5 110.10 (4m) Requiring ignition interlock device providers operating in this state to accept, as payment in full for equipping a motor vehicle with an ignition interlock device and for maintaining the ignition interlock device, the amount ordered by the court under s. 343.301 (3) (b), if applicable.

SB66-SSA1, s. 2 Section 2. 139.03 (2m) of the statutes is amended to read:

SB66-SSA1,6,12 139.03 (2m) The rate of that tax is 85.86 135.86 cents per liter on intoxicating liquor, except wine containing not in excess of 21% of alcohol by volume, containing 0.5% or more of alcohol by volume. The department of revenue may, by rule, set the amount of the taxes imposed under this section for various sizes of containers if the amounts set are in the same proportion to the size of the containers as the rate per liter under this subsection.

SB66-SSA1, s. 3 Section 3. 165.755 (1) (b) of the statutes is amended to read:

SB66-SSA1,7,4 165.755 (1) (b) A court may not impose the crime laboratories and drug law enforcement surcharge under par. (a) for a violation of s. 101.123 (2) (a), (am) 1., (ar), (bm), (br), or (bv) or (5) (b), for a first violation of s. 23.33 (4c) (a) 2., 30.681 (1) (b) 1., 346.63 (1) (b), or 350.101 (1) (b), if the person who committed the violation had a blood alcohol concentration of 0.08 or more but less than 0.1 at the time of the violation, or for a violation of a state law or municipal or county ordinance involving a nonmoving traffic violation, a violation under s. 343.51 (1m) (b), or a safety belt use violation under s. 347.48 (2m).

SB66-SSA1, s. 4 Section 4. 302.425 (7) (c) of the statutes is created to read:

SB66-SSA1,7,9 302.425 (7) (c) A person sentenced under s. 346.65, under s. 973.09 for a 4th or subsequent violation that is counted as a suspension, revocation, or conviction under s. 343.307, or under s. 940.09 (1) or 940.25 in the person's lifetime, or a combination thereof.

SB66-SSA1, s. 5 Section 5. 302.46 (1) (a) of the statutes is amended to read:

SB66-SSA1,7,23 302.46 (1) (a) If a court imposes a fine or forfeiture for a violation of state law or for a violation of a municipal or county ordinance except for a violation of s. 101.123 (2) (a), (am) 1., (ar), (bm), (br), or (bv) or (5), or for a first violation of s. 23.33 (4c) (a) 2., 30.681 (1) (b) 1., 346.63 (1) (b), or 350.101 (1) (b), if the person who committed the violation had a blood alcohol concentration of 0.08 or more but less than 0.1 at the time of the violation, or for a violation of state laws or municipal or county ordinances involving nonmoving traffic violations, violations under s. 343.51 (1m) (b), or safety belt use violations under s. 347.48 (2m), the court, in addition, shall impose a jail surcharge under ch. 814 in an amount of 1 percent of the fine or forfeiture imposed or $10, whichever is greater. If multiple offenses are involved, the court shall determine the jail surcharge on the basis of each fine or forfeiture. If a fine or forfeiture is suspended in whole or in part, the court shall reduce the jail surcharge in proportion to the suspension.

SB66-SSA1, s. 6 Section 6. 340.01 (46m) (c) of the statutes is amended to read: