346.65 AnnotationPenalty provisions of sub. (2) are mandatory and apply to subsequent violations committed prior to a conviction for the first offense. State v. Banks, 105 Wis. 2d 32, 313 N.W.2d 67 (1981).

346.65 AnnotationWhen the accused was represented by counsel in proceedings leading to the second conviction, but not the first, there was no violation of the right to counsel precluding incarceration for the second 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 AnnotationThe state has exclusive jurisdiction over second offense for drunk driving. It is criminal and may not be prosecuted as an ordinance violation. County of Walworth v. Rohner, 108 Wis. 2d 713, 324 N.W.2d 682 (1982). But see City of Eau Claire v. Booth, 2016 WI 65, 370 Wis. 2d 595, 882 N.W.2d 738, 15-0869.

346.65 AnnotationUnder 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 AnnotationProbation 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 AnnotationAn operating while intoxicated 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 AnnotationA 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 AnnotationThe 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 AnnotationSub. (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 AnnotationA trial court cannot accept guilty pleas to both a second and a third offense operating a vehicle while intoxicated (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 AnnotationA defendant convicted of a second or subsequent offense operating while intoxicated 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 AnnotationNothing 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 AnnotationThe proper time to determine the number of a defendant’s prior operating a motor vehicle while under the influence of an intoxicant 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 AnnotationAlthough 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 the defendant’s 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 AnnotationThe elements of an underlying first-offense operating while intoxicated (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 AnnotationA 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 operating while intoxicated (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 AnnotationA prior expunged operating while intoxicated (OWI) conviction constitutes a prior conviction under s. 343.307 (1) when determining the penalty for OWI-related offenses. State v. Braunschweig, 2018 WI 113, 384 Wis. 2d 742, 921 N.W.2d 199, 17-1261.

346.65 AnnotationThis section does not provide a standard of proof for the penalties assigned. When a predicate prior offense is not an element that must be proven beyond a reasonable doubt, the offense need be proven by only a preponderance of the evidence. Unlike some operating with a prohibited alcohol concentration charges, a prior operating while intoxicated conviction is not an element under sub. (2) (am). State v. Braunschweig, 2018 WI 113, 384 Wis. 2d 742, 921 N.W.2d 199, 17-1261.

346.65 AnnotationThe plain text of this section requires a court sentencing a defendant convicted of a third-offense operating while intoxicated (OWI) with penalty enhancers for having a minor in the car and a high blood alcohol concentration (BAC) to impose a fine reflecting both penalty enhancers. Sub. (2) (am) 3. says the minimum fine for third-offense OWI is $600. Sub. (2) (f) 2. requires doubling the $600 fine. Sub. (2) (g) 3. requires quadrupling the $600 fine. Applying the enhanced fines to the defendant in this case requires the defendant to pay $1,200 for having a minor passenger plus $2,400 for having a high BAC. State v. Neill, 2020 WI 15, 390 Wis. 2d 248, 938 N.W.2d 521, 18-0075.

346.65 AnnotationA mandatory minimum term of initial confinement under sub. (2) (am) 6. must be served in full, regardless of a defendant’s successful completion of the Wisconsin Substance Abuse Program under s. 302.05. State v. Gramza, 2020 WI App 81, 395 Wis. 2d 215, 952 N.W.2d 836, 20-0100.

346.65 AnnotationUnder Birchfield, 579 U.S. 438 (2016), and Dalton, 2018 WI 85, Wisconsin’s operating while intoxicated graduated-penalty scheme is unconstitutional to the extent it counts prior revocations for refusing to submit to a warrantless blood draw as offenses for the purpose of increasing the criminal penalty. State v. Forrett, 2022 WI 37, 401 Wis. 2d 678, 974 N.W.2d 422, 19-1850.

346.65 AnnotationSub. (2) (am) 5. requires a circuit court to impose a bifurcated sentence that includes a minimum of 18 months of initial confinement served in prison, unless the circuit court finds the exception allowing the court to impose a minimum of one year of initial confinement applies and states its reasons for doing so on the record. However, even if the court imposes sentence under the exception, the court’s sentence must still comply with the bifurcated sentence minimum—that is, it must have at least one year of initial confinement in prison as required under s. 973.01 (2) (b). The law does not authorize the circuit court to stay the sentence and instead place the offender on probation. State v. Shirikian, 2023 WI App 13, 406 Wis. 2d 633, 987 N.W.2d 819, 21-0859.

346.65 AnnotationWhen a person is charged under s. 346.63 (1) with a second 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 second offense for purposes of revocation. 69 Atty. Gen. 47.

346.65 AnnotationAn 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).