346.63 AnnotationField sobriety tests are not scientific tests but are observational tools that law enforcement officers commonly use to assist them in discerning various indicia of intoxication, the perception of which is necessarily subjective. The procedures an officer employs in determining probable cause for intoxication go to the weight of the evidence, not its admissibility. City of West Bend v. Wilkens, 2005 WI App 36, 278 Wis. 2d 643, 693 N.W.2d 324, 04-1871.

346.63 AnnotationThe per se ban on driving or operating a motor vehicle with a detectable amount of a restricted controlled substance in one’s blood under sub. (1) (am) bears a reasonable and rational relationship to the goal of regulating the safety of roadways and is not fundamentally unfair such that there is a due process violation, nor does the statute offend principles of equal protection. State v. Smet, 2005 WI App 263, 288 Wis. 2d 525, 709 N.W.2d 474, 05-0690.

346.63 AnnotationA defendant was not operating a vehicle under this section by merely sitting in the driver’s seat of a parked vehicle, although the engine was running, when the uncontested evidence showed that the defendant was not the person who left the engine running, had never physically manipulated or activated the controls necessary to put the vehicle in motion, and there was no circumstantial evidence that the defendant recently operated the vehicle, while another person had operated the vehicle. Village of Cross Plains v. Haanstad, 2006 WI 16, 288 Wis. 2d 573, 709 N.W.2d 447, 04-2232.

346.63 AnnotationWeaving within a single traffic lane does not alone give rise to the reasonable suspicion necessary to conduct an investigative stop of a vehicle. The reasonableness of a stop must be determined based on the totality of the facts and circumstances. State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634, 05-2778.

346.63 AnnotationCircumstantial evidence may be used to prove operation of a motor vehicle. While the motor in this case was not running, the keys were in the ignition and the parking and dash lights were on. Even absent a running motor, the jury was entitled to consider the circumstantial evidence to determine how and when the car arrived where it did and whether it was the defendant who operated it. State v. Mertes, 2008 WI App 179, 315 Wis. 2d 756, 762 N.W.2d 813, 07-2757.

346.63 AnnotationAlthough evidence of intoxicant usage, such as odors, an admission, or containers, ordinarily exists in drunk driving cases and strengthens the existence of probable cause, such evidence is not required. The totality of the circumstances is the test. State v. Lange, 2009 WI 49, 317 Wis. 2d 383, 766 N.W.2d 551, 08-0882.

346.63 AnnotationThe legislature meant to make the crime of operating a motor vehicle with a prohibited alcohol concentration (PAC) one that requires a person to have the PAC at the time the person drives or operates the motor vehicle. A defendant who has two countable operating a motor vehicle while intoxicated (OWI) convictions at the time of arrest has a blood alcohol content (BAC) limit of 0.08 percent. Accordingly, the state could not properly charge the defendant with a PAC based on a BAC of 0.048 percent. The circuit court properly dismissed the charge of fourth offense PAC although a third OWI conviction was entered subsequent to the arrest. State v. Sowatzke, 2010 WI App 81, 326 Wis. 2d 227, 784 N.W.2d 700, 09-1990.

346.63 AnnotationA “motor bicycle,” as defined in s. 340.01 (30), is a “motor vehicle,” as defined in s. 340.01 (35), and as used in sub. (1), at least when the motor bicycle being operated is self-propelled, rather than pedaled. State v. Koeppen, 2014 WI App 94, 356 Wis. 2d 812, 854 N.W.2d 849, 13-2539.

346.63 AnnotationIn light of McNeely, 569 U.S. 141 (2013), the holding in Bohling, 173 Wis. 2d 529 (1993), that the rapid dissipation of alcohol alone constitutes an exigent circumstance sufficient for law enforcement officers to order a warrantless investigatory blood draw, is no longer an accurate interpretation of the 4th amendment’s protection against unreasonable searches and seizures. The rapid dissipation of alcohol alone no longer constitutes a per se exigent circumstance. Exigent circumstances, sufficient to justify a warrantless investigatory blood draw of a drunk-driving suspect, are to be determined on a case-by-case totality of the circumstances analysis. State v. Kennedy, 2014 WI 132, 359 Wis. 2d 454, 856 N.W.2d 834, 12-0523.

346.63 AnnotationUnder the facts and circumstances of this case, the deputy reasonably responded to an accident, secured the scene, investigated the matter, and ultimately was left with a very narrow time frame in which the defendant’s blood could be drawn so as to produce reliable evidence of intoxication. This sort of “now or never” moment is the epitome of an exigent circumstance justifying a warrantless blood draw. State v. Tullberg, 2014 WI 134, 359 Wis. 2d 421, 857 N.W.2d 120, 12-1593.

346.63 AnnotationOperation of a motor vehicle with a detectable amount of a restricted controlled substance in the blood under sub. (1) (am) is a strict liability offense that does not require scienter and is constitutional. State v. Luedtke, 2015 WI 42, 362 Wis. 2d 1, 863 N.W.2d 592, 13-1737.

346.63 AnnotationA court of appeals’ decision remanding the case to the circuit court with instructions to enter an amended judgment of conviction for operating with a prohibited alcohol concentration (PAC) as a seventh offense and impose sentence for a seventh offense violated the defendant’s right to due process after the defendant entered a knowing, intelligent, and voluntary guilty plea to operating with a PAC as a sixth offense. Because a seventh offense carries a greater range of punishment than does a sixth offense, the court of appeals’ remedy rendered the plea unknowing, unintelligent, and involuntary. State v. Chamblis, 2015 WI 53, 362 Wis. 2d 370, 864 N.W.2d 806, 12-2782.

346.63 AnnotationUpon a defendant’s lawful arrest for drunk driving, the 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.

346.63 AnnotationFormer sub. (2) (am) 2. to 7., 2011 stats., clearly provides for increasing fines and terms of imprisonment based on the number of convictions amassed by a defendant. Sub. (2) (am) 6. provides that an individual convicted of nine operating while intoxicated offenses is guilty of a Class G [now Class F] felony and subject to the penalty for that class of felony. State v. Wortman, 2017 WI App 61, 378 Wis. 2d 105, 902 N.W.2d 561, 16-1144.

346.63 AnnotationIn this case, the defendant’s riding lawn mower was not an “all-terrain vehicle” under s. 340.01 (2g) because it did not satisfy the requirement of having a straddle seat. It was, however, a “motor vehicle” under s. 340.01 (35), and the defendant therefore was validly prosecuted for operating a motor vehicle while intoxicated in violation of sub. (1) (a). State v. Shoeder, 2019 WI App 60, 389 Wis. 2d 244, 936 N.W.2d 172, 18-0997.

346.63 AnnotationUnder the facts of this case, there was a reasonable likelihood that the state was effectively relieved of its burden to prove that the defendant was “under the influence” of cocaine and marijuana while driving, in violation of the defendant’s right to due process of law. The jury instruction was incomplete and therefore ambiguous to the extent that it failed to inform the jury of two related propositions: 1) not every person who has consumed cocaine and THC is under the influence; and 2) a person is not under the influence unless the person has consumed a sufficient amount of cocaine and THC to cause the person to be less able to exercise the clear judgment and steady hand necessary to handle and control a motor vehicle. The jury here was not explicitly informed that it could not find the defendant guilty of operating while intoxicated under sub. (1) (a) based merely on a finding that the defendant had consumed cocaine and THC before driving. State v. McAdory, 2021 WI App 89, 400 Wis. 2d 215, 968 N.W.2d 770, 20-2001.

346.63 AnnotationUnder sub. (1) (c), the single-conviction provision, when there is more than one sub. (1) guilty verdict, only one can serve as the count for purposes of conviction and sentencing, and all other sub. (1) counts are to be dismissed. The single-conviction provision implicitly authorizes circuit courts to accomplish the intended goal of a single conviction in the following scenario: a prosecutor pursues at trial some combination of charges under sub. (1) based on a single incident and obtains guilty verdicts on multiple counts; as required by the single-conviction provision, the circuit court relies on only one conviction for purposes of sentencing and the other counts are dismissed; the defendant prevails in challenging that single conviction in a postconviction or appellate proceeding, but the dismissed count or counts are not affected by the reasoning of the postconviction or appellate court; and, following remittitur, the prosecutor moves to reinstate a dismissed count, with the result that the reinstated count serves as the single conviction for purposes of sentencing in lieu of the count that was reversed on appeal. There is no double jeopardy claim on those facts. State v. McAdory, 2024 WI App 29, 412 Wis. 2d 112, 8 N.W.3d 101, 23-0645.

346.63 AnnotationNatural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the warrant requirement for nonconsensual blood testing in all drunk-driving cases. Consistent with general 4th amendment principles, exigency in this context must be determined case by case based on the totality of the circumstances. Missouri v. McNeely, 569 U.S. 141, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).

346.63 AnnotationFirst offense violations of sub. (1) (a) are assimilated under the federal Assimilative Crimes Act when committed on federal enclave. United States v. Manning, 700 F. Supp. 1001 (1988).

346.63 AnnotationOffense Definition in Wisconsin’s Impaired Driving Statutes. Hammer. 69 MLR 165 (1986).

346.63 AnnotationAlcohol and Other Drugs in Wisconsin Drivers: The Laboratory Perspective. Field. 69 MLR 235 (1986).

346.63 AnnotationEffective Use of Expert Testimony in the Defense of Drunk Driving Cases. Olson. WBB Dec. 1981.

346.63 AnnotationThe new OMVWI law: Wisconsin changes its approach to the problem of drinking and driving: Part I. Hammer. WBB Apr. 1982.

346.63 AnnotationThe new OMVWI law: Wisconsin changes its approach to the problem of drinking and driving: Part II. Hammer. WBB May 1982.

346.63 AnnotationDouble Jeopardy: A New Tool in the Arsenal of Drunk Driving Defenses. Sines & Ekman. Wis. Law. Dec. 1995.

346.63 AnnotationWisconsin’s New OWI Law. Mishlove & Stuckert. Wis. Law. June 2010.

346.635346.635 Report arrest or out-of-service order to department. Whenever a law enforcement officer arrests a person for a violation of s. 346.63 (1), (5) or (7), 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, the officer shall notify the department of the arrest and of issuance of an out-of-service order under s. 343.305 (7) (b) or (9) (am) as soon as practicable.