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343.305 Annotation This section does not require that test results must be suppressed when there is a failure to reasonably convey the implied consent warnings to an apprehended driver. Under the circumstances of this case on remand the defendant was entitled to pursue an order prohibiting the automatic admissibility of the blood test result pursuant to s. 885.235, which if granted would require the state to establish the admissibility of the blood test, including establishing a foundation. State v. Begicevic, 2004 WI App 57, 270 Wis. 2d 675, 678 N.W.2d 293, 03-1223.
343.305 Annotation The approval of an instrument under sub. (6) (b) without promulgation of an administrative rule under ch. 227 did not constitute creation of an invalid administrative rule. County of Dane v. Winsand, 2004 WI App 86, 271 Wis. 2d 786, 679 N.W.2d 885, 03-2004.
343.305 Annotation Sub. (5) (a) does not impose a requirement that the request for an additional blood test be made after the first test is completed. State v. Schmidt, 2004 WI App 235, 277 Wis. 2d 561, 691 N.W.2d 379, 04-0904.
343.305 Annotation When police have informed a suspect of his or her right to an alternative test at agency expense, the suspect has ample opportunity to make a request, the suspect makes no request, and the suspect is released from custody and leaves the presence of custodial police, a subsequent request for an alternative test at agency expense is not a request within the meaning of sub. (5) (a). State v. Fahey, 2005 WI App 171, 285 Wis. 2d 679, 702 N.W.2d 400, 04-0102.
343.305 Annotation There is no right to counsel at the refusal hearing because such a hearing is civil, not criminal, in nature and therefore there is no constitutional right to effective assistance of counsel. State v. Krause, 2006 WI App 43, 289 Wis. 2d 573, 712 N.W.2d 67, 05-0472.
343.305 Annotation Giving Miranda warnings prior to reading Informing the Accused warnings under this section does not lead to a conclusion that the officer explicitly assured or implicitly suggested that a defendant has a right to consult counsel or to stand silent in the face of the implied consent warnings. Such a conclusion requires that the accused must be told he or she has the right to consult with counsel before deciding to submit to chemical testing and that the accused relied on the assurance or suggestion when responding to the request for a chemical test. State v. Kliss, 2007 WI App 13, 298 Wis. 2d 275, 728 N.W.2d 9, 06-0113.
343.305 Annotation There cannot be substantial compliance with sub. (4) when the law enforcement officer fails to give the defendant the statutorily required information about penalties. If the circuit court determines that the officer failed to inform the accused in compliance with the statute, the court shall order that no action be taken on the operating privilege on account of the person's refusal to take the test in question. This does not apply misstatements of information beyond the required information, which are governed by Ludwigson. Washburn County v. Smith, 2008 WI 23, 308 Wis. 2d 65, 746 N.W.2d 243, 06-3163.
343.305 Annotation When law enforcement invokes this section to obtain a primary test for intoxication, it must: 1) provide the primary test of its choice at its own expense; 2) provide an opportunity for a second test of its choice at agency expense; and 3) if the second test is refused by the suspect in favor of one at his or her own expense, it must provide a reasonable opportunity for a test of the suspect's choice at the suspect's expense. State v. Batt, 2010 WI App 155, 330 Wis. 2d 159, 793 N.W.2d 104, 09-3069.
343.305 Annotation Sub. (9) (a) 5. a. does not limit the circuit court to considering whether, based on all the evidence gathered up until the moment of the arrest, the officer had probable cause to believe the defendant was operating while under the influence of an intoxicant. A defendant may also contest whether he or she was lawfully placed under arrest. As part of this inquiry, the circuit court may entertain an argument that the arrest was unlawful because the traffic stop that preceded it was not justified by either probable cause or reasonable suspicion. State v. Anagnos, 2012 WI 64, 341 Wis. 2d 576, 815 N.W.2d 675, 10-1812.
343.305 Annotation Under Brooks, a circuit court has the discretionary authority to dismiss a refusal charge only if the defendant has already pleaded guilty to the underlying OWI or OWI-related charge by the time of his or her refusal hearing, which was timely requested. Extending Brooks to allow circuit courts the discretionary authority to dismiss refusal charges in cases in which a defendant has pleaded not guilty to the underlying OWI, PAC, or other related charge would contravene the purpose of this section. State v. Bentdahl, 2013 WI 106, ___ Wis. 2d ___, ___ N.W.2d ___, 12-1426.
343.305 Annotation When a law enforcement officer has reasonable grounds to believe that an unconscious person is guilty of driving while intoxicated, a blood sample may be taken, and the test results are admissible in evidence and may not be excluded by the trial court. 59 Atty. Gen. 183.
343.305 Annotation Implied consent is discussed. 62 Atty. Gen. 174.
343.305 Annotation The method by which a law enforcement agency may provide 2 tests for blood alcohol content under sub. (1), 1985 stats. [now sub. (2)] is discussed. The agency is not required to actually own or physically possess the testing devices. 63 Atty. Gen. 119.
343.305 Annotation Under s. 343.305 (1) and (4), 1985 stats., hospital personnel must administer tests and report results at the request of officers, subject to penalty under 946.40. 68 Atty. Gen. 209.
343.305 Annotation Federal law requiring confidentiality of patient records has no application to the taking of a blood sample under this section. 73 Atty. Gen. 45.
343.305 Annotation A law enforcement officer may use physical restraint, subject to constitutional limitations, in order to draw a legally justified blood sample. Refusal by a health professional to comply with a law enforcement officer's authorized request to take a blood sample from a person whom the officer has legally restrained by force constitutes refusal to aid an officer under s. 946.40. 74 Atty. Gen. 123.
343.305 AnnotationRefusal hearings under this section are discussed. 77 Atty. Gen. 4.
343.305 Annotation A Massachusetts implied consent law that mandates suspension of a license for refusal to take a breath-analysis test did not violate the due process clause. Mackey v. Montrym, 443 U.S. 1 (1979).
343.305 Annotation The admission into evidence of a defendant's refusal to submit to a blood-alcohol test did not deny the right against self-incrimination. South Dakota v. Neville, 459 U.S. 553 (1983).
343.305 Annotation Wisconsin's new administrative suspension statute. 72 MLR 120 (1988).
343.305 Annotation The new OMVWI law: Wisconsin changes its approach to the problem of drinking and driving. Hammer, WBB April, May 1982.
343.305 Annotation Technical problems corrected: Operating while intoxicated. Hancock and Maassen. WBB Apr. 1987.
343.305 Annotation Wisconsin's breath testing program. Booker. WBB Oct. 1988.
343.305 Annotation Rethinking Refusal: Wisconsin's Implied Consent Law. Lotke. Wis. Law. July 1993.
343.307 343.307 Prior convictions, suspensions or revocations to be counted as offenses.
343.307(1) (1) The court shall count the following to determine the length of a revocation under s. 343.30 (1q) (b) and to determine the penalty under ss. 114.09 (2) and 346.65 (2):
343.307(1)(a) (a) Convictions for violations under s. 346.63 (1), or a local ordinance in conformity with that section.
343.307(1)(b) (b) Convictions for violations of a law of a federally recognized American Indian tribe or band in this state in conformity with s. 346.63 (1).
343.307(1)(c) (c) Convictions for violations under s. 346.63 (2) or 940.25, or s. 940.09 where the offense involved the use of a vehicle.
343.307(1)(d) (d) Convictions under the law of another jurisdiction that prohibits a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction's laws.
343.307(1)(e) (e) Operating privilege suspensions or revocations under the law of another jurisdiction arising out of a refusal to submit to chemical testing.
343.307(1)(f) (f) Revocations under s. 343.305 (10).
343.307(1)(g) (g) Convictions for violations under s. 114.09 (1) (b) 1. or 1m.
343.307(2) (2) The court shall count the following to determine the length of a revocation under s. 343.305 (10) and to determine the penalty under s. 346.65 (2j) and to determine the prohibited alcohol concentration under s. 340.01 (46m):
343.307(2)(a) (a) Convictions for violations under s. 346.63 (1) or (5), or a local ordinance in conformity with either section.
343.307(2)(b) (b) Convictions for violations of a law of a federally recognized American Indian tribe or band in this state in conformity with s. 346.63 (1) or (5).
343.307(2)(c) (c) Convictions for violations under s. 346.63 (2) or (6).
343.307(2)(d) (d) Convictions under the law of another jurisdiction that is in substantial conformity with 49 CFR 383.51 (b) Table 1, items (1) to (4).
343.307(2)(e) (e) Convictions under the law of another jurisdiction that prohibits a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction's laws.
343.307(2)(f) (f) Operating privilege suspensions or revocations under the law of another jurisdiction arising out of a refusal to submit to chemical testing.
343.307(2)(g) (g) Revocations under s. 343.305 (10).
343.307(2)(h) (h) Convictions for violations under s. 940.09 (1) or 940.25.
343.307(3) (3) If the same elements of the offense must be proven under a local ordinance or under a law of a federally recognized American Indian tribe or band in this state as under s. 346.63 (1) (a), (am), or (b), any combination of s. 346.63 (1) (a), (am), or (b), or s. 346.63 (5), the local ordinance or the law of a federally recognized American Indian tribe or band in this state shall be considered to be in conformity with s. 346.63 (1) (a), (am), or (b), any combination of s. 346.63 (1) (a), (am), or (b), or s. 346.63 (5), for purposes of ss. 343.30 (1q) (b) 1., 343.305 (10) (b) 1. and 346.65 (2) and (2j).
343.307 Annotation An Illinois court's placement of an OWI offender under court supervision is a conviction that is counted as a prior offense under sub. (1) (d) when charging an OWI suspect in Wisconsin. Placement under court supervision as a result of a determination that the defendant violated or failed to comply with the law in a court of original jurisdiction meets the definition of conviction under s. 340.01 (9r). State v. List, 2004 WI App 230, 277 Wis. 2d 836, 691 N.W.2d 366, 03-3149.
343.307 Annotation The final phrase of sub. (1) (d), "as those or substantially similar terms are used in that jurisdiction's laws," indicates the broad scope of that provision. When determining a penalty, Wisconsin counts prior offenses committed in states with OWI statutes that differ significantly from Wisconsin's. "Substantially similar" simply emphasizes that the out-of-state statute need only prohibit conduct similar to the list of prohibited conduct in sub. (1) (d). State v. Puchacz, 2010 WI App 30, 323 Wis. 2d 741, 780 N.W.2d 536, 09-0840.
343.307 Annotation The definition of "conviction" in s. 340.01 (9r) applies to "convictions" in sub. (1) (d). Under sub. (1) (d), the other jurisdiction need only have a law that prohibits conduct specified in sub. (1) (d). The Illinois "zero tolerance" law punishes a person who is less than 21 years of age for refusing to submit to a chemical test, or for using a motor vehicle with an alcohol concentration above 0.00 and thus, in the context of sub. (1) (d), was a conviction under a law of another jurisdiction that prohibits refusal of chemical testing or prohibits using a motor vehicle with an excess or specified range of alcohol concentration. State v. Carter, 2010 WI 132, 330 Wis. 2d 1, 794 N.W.2d 213, 08-3144
343.307 Annotation In sub. (1) (d), the phrase "with an excess or specified range of alcohol concentration" modifies the phrase "using a motor vehicle," not the phrase "using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof." Thus, the statute should be read as follows: convictions under the law of another jurisdiction that prohibits a person from using a motor vehicle with an excess or specified range of alcohol concentration. State v. Carter, 2010 WI 132, 330 Wis. 2d 1, 794 N.W.2d 213, 08-3144.
343.307 Annotation Section 340.01 (9r) defines "conviction" as including having "violated or failed to comply with the law in a court of original jurisdiction." By not appearing in court on the specified date, as directed, the defendant did not "comply with the law." State v. Marilee Devries, 2011 WI App 78, 334 Wis. 2d 430, 801 N.W.2d 336, 09-3166.
343.307 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.
343.31 343.31 Revocation or suspension of licenses after certain convictions or declarations.
343.31(1) (1) The department shall revoke a person's operating privilege upon receiving a record of conviction showing that the person has been convicted of any of the following offenses under a state law or under a local ordinance which is in conformity therewith or under a law of a federally recognized American Indian tribe or band in this state which is in conformity with state law:
343.31(1)(a) (a) Homicide or great bodily harm resulting from the operation of a motor vehicle and which is criminal under s. 346.62 (4), 940.06, 940.09, 940.10 or 940.25.
343.31(1)(am) (am) Injury by the operation of a vehicle while under the influence of an intoxicant, a controlled substance or a controlled substance analog, or any combination of an intoxicant, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving or while the person has a detectable amount of a restricted controlled substance in his or her blood or has a prohibited alcohol concentration and which is criminal under s. 346.63 (2).
343.31(1)(ar) (ar) Injury by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08 and which is criminal under s. 346.63 (6).
343.31(1)(b) (b) Upon conviction for operation of a motor vehicle while under the influence of an intoxicant, controlled substance, controlled substance analog or a combination thereof, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving, in accordance with the order of the court.
343.31(1)(c) (c) Any felony in the commission of which a motor vehicle is used.
343.31(1)(d) (d) Failure to stop and render aid as required under the laws of this state in the event of a motor vehicle accident resulting in death of or personal injury to another or in serious property damage.
343.31(1)(g) (g) Operating a motor vehicle without having furnished proof of financial responsibility when proof of financial responsibility is required.
343.31(1)(i) (i) Knowingly fleeing or attempting to elude a traffic officer under s. 346.04 (3).
343.31(2) (2) The department shall revoke the operating privilege of any resident upon receiving notice of the conviction of such person in another jurisdiction for an offense therein which, if committed in this state, would have been cause for revocation under this section or for revocation under s. 343.30 (1q). Such offenses shall include violation of any law of another jurisdiction that prohibits a person from using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction's laws. Upon receiving similar notice with respect to a nonresident, the department shall revoke the privilege of the nonresident to operate a motor vehicle in this state. Such revocation shall not apply to the operation of a commercial motor vehicle by a nonresident who holds a valid commercial driver license issued by another state.
343.31(2m) (2m) The department may suspend or revoke, respectively, the operating privilege of any resident upon receiving notice of the conviction of that person under a law of another jurisdiction or a federally recognized American Indian tribe or band in this state for an offense which, if the person had committed the offense in this state and been convicted of the offense under the laws of this state, would have permitted suspension or revocation of the person's operating privilege under s. 343.30 (1d) or (1g). Upon receiving similar notice with respect to a nonresident, the department may suspend or revoke the privilege of the nonresident to operate a motor vehicle in this state. The suspension or revocation shall not apply to the operation of a commercial motor vehicle by a nonresident who holds a valid commercial driver license issued by another state. A suspension or revocation under this subsection shall be for any period not exceeding 6 months.
343.31(2r) (2r) The department shall suspend a person's operating privilege upon receiving a record of conviction showing that the person has been convicted of perjury or the making of a false affidavit or the making of a false statement or certification to the department under this chapter or any other law relating to the ownership or operation of motor vehicles.
343.31(2s) (2s) The department may suspend a person's operating privilege for 2 years upon receiving a record of conviction under s. 973.137. If the department receives a record of conviction under s. 973.137 or a notice of suspension under s. 938.34 (14q) for a person whose license or operating privilege is currently suspended or revoked or for a person who does not currently possess a valid operator's license, the suspension is first effective on the date on which the person is first eligible for issuance, renewal, or reinstatement of an operator's license.
343.31(2t) (2t)
343.31(2t)(a)(a) The department shall suspend a person's operating privilege upon receiving a record of conviction for a violation of s. 346.18, or a local ordinance in conformity with s. 346.18, resulting in bodily harm, as defined in s. 939.22 (4), great bodily harm, as defined in s. 939.22 (14), or death, as follows:
343.31(2t)(a)1. 1. For a period of 2 months, if the offense resulted in bodily harm to another but did not result in great bodily harm or the death of another.
343.31(2t)(a)2. 2. For a period of 3 months, if the offense resulted in great bodily harm to another but did not result in the death of another.
343.31(2t)(a)3. 3. For a period of 9 months, if the offense resulted in the death of another.
343.31(2t)(b) (b) If a person is convicted of violating s. 346.18 or a local ordinance in conformity with s. 346.18, in addition to any other penalty provided by law, the department shall order the person to attend a vehicle right-of-way course whose mode of instruction is approved by the secretary and which is conducted by any regularly established safety organization, by the provider of driver education courses approved under s. 38.04 (4) or 115.28 (11), or by a driver school licensed under s. 343.61. The course of instruction shall acquaint the person with vehicle right-of-way rules and provide instruction on motorcycle, pedestrian, and bicycle awareness. If the course is conducted by the provider of approved driver education courses or a driver school, the provider or driver school shall issue to the person a certificate upon successful completion of the course. If a person's operating privilege has been suspended under par. (a), the department may not reinstate the person's operating privilege unless the person has successfully completed the course required under this paragraph.
343.31(2u) (2u) The department shall suspend the operating privilege of a person who has been issued an occupational license upon receiving a record of conviction showing that the person has been convicted of any of the following offenses.
343.31(2u)(a) (a) Any offense that may be counted under s. 351.02 (1) (a), other than s. 351.02 (1) (a) 5.
343.31(2u)(b) (b) Exceeding by 20 or more miles per hour any lawful or posted maximum speed limit.
343.31(2u)(c) (c) Participating in any race or speed or endurance contest.
343.31(2x) (2x) The department shall suspend a person's operating privilege upon receiving a record of a declaration under s. 54.25 (2) (c) 1. d. that the person is incompetent to apply for an operator's license. The department may reinstate the person's operator's license upon receiving a record of a declaration that the person is no longer incompetent to apply for an operator's license under s. 54.25 (2) (c) 1. d., if the person is otherwise qualified under this chapter to obtain an operator's license.
343.31(3) (3)
343.31(3)(a)(a) Except as otherwise provided in this subsection or sub. (2m), (2s), (2t), or (2x), all revocations or suspensions under this section shall be for a period of one year.
343.31(3)(b) (b) If the revocation results from a first conviction of operation of a motor vehicle while under the influence of an intoxicant, controlled substance, controlled substance analog or a combination thereof, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving and the conviction occurs in another jurisdiction, the period of revocation shall be 6 months.
343.31(3)(bm) (bm) For any person convicted under a law of a federally recognized American Indian tribe or band in this state in conformity with s. 346.63 (1):
343.31(3)(bm)1. 1. Except as provided in subds. 3. and 4., the department shall revoke the person's operating privilege under this paragraph according to the number of previous suspensions, revocations or convictions that would be counted under s. 343.307 (1). Suspensions, revocations and convictions arising out of the same incident shall be counted as one. If a person has a conviction, suspension or revocation for any offense that is counted under s. 343.307 (1), that conviction, suspension or revocation shall count as a prior conviction, suspension or revocation under this subdivision.
343.31(3)(bm)2. 2. Except as provided in subd. 3., 4. or 4m., for the first conviction, the department shall revoke the person's operating privilege for not less than 6 months nor more than 9 months. If an Indian tribal court in this state revokes the person's privilege to operate a motor vehicle on tribal lands for not less than 6 months nor more than 9 months for the conviction specified in par. (bm) (intro.), the department shall impose the same period of revocation. The person is eligible for an occupational license under s. 343.10 at any time.
343.31(3)(bm)3. 3. Except as provided in subd. 4m., 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, the department shall revoke the person's operating privilege for not less than one year nor more than 18 months. If an Indian tribal court in this state revokes the person's privilege to operate a motor vehicle on tribal lands for not less than one year nor more than 18 months for the conviction specified in par. (bm) (intro.), the department shall impose the same period of revocation. After the first 60 days of the revocation period or, if the total number of convictions, suspensions, and revocations counted under this subdivision within any 5-year period equals 2 or more, after one year of the revocation period has elapsed, the person is eligible for an occupational license under s. 343.10.
343.31(3)(bm)4. 4. Except as provided in subd. 4m., if the number of convictions under ss. 940.09 (1) and 940.25 in the person's lifetime, plus the total number of other suspensions, revocations and convictions counted under s. 343.307 (1), equals 3 or more, the department shall revoke the person's operating privilege for not less than 2 years nor more than 3 years. If an Indian tribal court in this state revokes the person's privilege to operate a motor vehicle on tribal lands for not less than 2 years nor more than 3 years for the conviction specified in par. (bm) (intro.), the department shall impose the same period of revocation. After one year of the revocation period has elapsed, the person is eligible for an occupational license under s. 343.10.
343.31(3)(bm)4m. 4m. If the Indian tribal court that convicted the person determined that there was a minor passenger under 16 years of age in the motor vehicle at the time of the incident that gave rise to the conviction, the applicable minimum and maximum revocation periods under subd. 2., 3. or 4. for the conviction are doubled.
343.31(3)(bm)5. 5. The time period under this paragraph shall be measured from the dates of the refusals or violations which resulted in the suspensions, revocations or convictions.
343.31(3)(c) (c) Any person convicted under s. 940.09 of causing the death of another or of an unborn child by the operation or handling of a motor vehicle shall have his or her operating privilege revoked for 5 years. If there was a minor passenger under 16 years of age or an unborn child, as defined in s. 939.75 (1), in the motor vehicle at the time of the violation that gave rise to the conviction under s. 940.09, the revocation period is 10 years.
343.31(3)(d) (d) Any person convicted of knowingly fleeing or attempting to elude a traffic officer under s. 346.04 (3) shall have his or her operating privilege revoked as follows:
343.31(3)(d)1. 1. If the offense did not result in bodily harm to another or damage to the property of another, for 6 months.
343.31(3)(d)2. 2. If the offense results in bodily harm to another or causes damage to the property of another, as provided in par. (a).
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2011-12 Wisconsin Statutes updated though 2013 Wis. Act 200 and all Supreme Court Orders entered before April 18, 2014. Published and certified under s. 35.18. Changes effective after April 18, 2014 are designated by NOTES. (Published 4-18-14)