343.301(4)(4) A person to whom an order under sub. (1g) applies violates that order if he or she fails to have an ignition interlock device installed as ordered, removes or disconnects an ignition interlock device, requests or permits another to blow into an ignition interlock device or to start a motor vehicle equipped with an ignition interlock device for the purpose of providing the person an operable motor vehicle without the necessity of first submitting a sample of his or her breath to analysis by the ignition interlock device, or otherwise tampers with or circumvents the operation of the ignition interlock device. 343.301(5)(5) If the court enters an order under sub. (1g), the court shall impose and the person shall pay to the clerk of court an ignition interlock surcharge of $50. The clerk of court shall transmit the amount to the county treasurer. 343.301(6)(a)(a) In this subsection, “violation” means a breath sample that is above the alcohol setpoint of 0.020 grams of alcohol per 210 liters of breath or failure to provide a passing breath sample within the retest window. “Violation” does not include a detectable breath sample that passes a test immediately following a failed test or in response to a bypass or circumvention attempt. 343.301(6)(b)(b) Notwithstanding sub. (2m) (a) and (b), and subject to par. (c), the restriction of a person’s operating privilege under an order under sub. (1g) (am) 1. shall be extended by 180 days for each occurrence of any of the following events that occurs 60 days or more after the installation of an ignition interlock device: 343.301(6)(b)1.1. Tampering with or attempting to circumvent an ignition interlock device. 343.301(6)(b)2.2. Removing an ignition interlock device without authorization. 343.301(6)(b)3.3. Failure to service an ignition interlock device that results in the ignition interlock device entering lockout mode. 343.301(6)(b)4.4. Any attempt to start a motor vehicle with a breath alcohol concentration of 0.020 or more. 343.301(6)(b)5.5. Failure to take a random breath test unless a review of the digital image confirms that the motor vehicle was not occupied by the person at the time of the missed test. 343.301(6)(c)(c) The department shall determine that a person did not commit a violation upon receipt of documentation or information, provided by the person’s ignition interlock device provider, indicating that a reported violation resulted from a malfunction of the ignition interlock device for which the person was not responsible. 343.301(6)(d)(d) The department shall develop an electronic process by which an approved ignition interlock device provider may identify the start date of the restriction of a person’s operating privilege under sub. (2m) and provide to the department real-time notice of usage and violations and a final compliance report. Effective date noteNOTE: Sub. (6) is created by 2025 Wis. Act 210 eff. on the first day of the 12th month beginning after the date specified in the Department of Transportation notice published in the Wisconsin Administrative Register under 2025 Wis. Act 210, section 17 (2). 343.301(7)(7) A person to whom an order is entered under sub. (1g) shall provide to the ignition interlock device service provider all of the following: 343.301(7)(a)(a) The county in which the person was convicted and the person’s case number. 343.301(7)(b)(b) The start and end dates for the ignition interlock device requirement. Effective date noteNOTE: Sub. (7) is created by 2025 Wis. Act 210 eff. on the first day of the 12th month beginning after the date specified in the Department of Transportation notice published in the Wisconsin Administrative Register under 2025 Wis. Act 210, section 17 (2). 343.301(8)(8) An ignition interlock device shall conduct a retest after each failed or skipped test. If a person fails or skips a retest, the person is guilty of an ignition interlock device violation. Effective date noteNOTE: Sub. (8) is created by 2025 Wis. Act 210 eff. on the first day of the 12th month beginning after the date specified in the Department of Transportation notice published in the Wisconsin Administrative Register under 2025 Wis. Act 210, section 17 (2). 343.301(9)(a)(a) When a person to whom an order is entered under sub. (1g) reaches the date on which the order is set to end, the person shall return to the ignition interlock device service provider for final service, data download, and compliance-based review. The service provider shall complete the compliance-based review no later than 7 business days after the data is downloaded from the ignition interlock device, except that a service provider may not begin the compliance-based review until all information required under sub. (7) is provided. 343.301(9)(b)(b) If a service provider conducts a compliance-based review for a person to whom an order is entered under sub. (1g) and determines that an event specified under sub. (6) (b) has occurred, the service provider shall notify the department. 343.301(9)(c)(c) Upon receipt of notice from a service provider that an event specified under sub. (6) (b) has occurred that requires extension of a person’s ignition interlock device order, the department shall extend the person’s order as required under sub. (6) (b), subject to par. (d). The department shall notify the person in writing that the person’s ignition interlock device order is extended, beginning 10 days from the date of the written notice. 343.301(9)(d)(d) A person who receives notice under par. (c) of an extension of their ignition interlock device order may, within 15 business days of the date of the notice, provide the service provider with a written rebuttal of the event that the service provider determines requires an extension. The service provider shall, within 7 business days of the rebuttal, conduct a review of the person’s rebuttal and notify the department and the person of the final determination. If the original determination is confirmed, the department’s extension of the ignition interlock device order shall be upheld. If the original determination is reversed, the service provider shall correct the person’s record and the department shall reverse the extension of the ignition interlock device order. Effective date noteNOTE: Sub. (9) is created by 2025 Wis. Act 210 eff. on the first day of the 12th month beginning after the date specified in the Department of Transportation notice published in the Wisconsin Administrative Register under 2025 Wis. Act 210, section 17 (2). 343.301 AnnotationSub. (1g) (b) 2. requires an order for ignition interlock devices when a person violates s. 346.63 (1) and has one or more prior operating while intoxicated (OWI) convictions. Sub. (1g) (b) 2. provides no restrictions on how to count prior convictions for purposes of ordering ignition interlock devices. The ten-year look-back provision in s. 346.65 (2) (am) 2. for purposes of determining whether to charge or penalize a repeat OWI offender civilly or criminally is independent of and has no effect on orders for ignition interlock devices under this section. Village of Grafton v. Seatz, 2014 WI App 23, 352 Wis. 2d 747, 845 N.W.2d 672, 13-1414. 343.301 AnnotationWisconsin’s New OWI Law. Mishlove & Stuckert. Wis. Law. June 2010.
343.302343.302 Ignition interlock device tampering; failure to install. 343.302(1)(1) No person may remove, disconnect, tamper with, or otherwise circumvent the operation of an ignition interlock device installed in response to the court order under s. 346.65 (6), 1999 stats., or s. 343.301 (1), 2007 stats., or s. 343.301 (1g), or fail to have the ignition interlock device installed as ordered by the court, or violate a court order under s. 343.301 (1g) (am) 1. or a court order restricting the person’s operating privilege under s. 343.301 (1g) (am) 2., or violate an ignition interlock device restriction under s. 343.10 (5) (a) 3. This subsection does not apply to the removal or repair of an ignition interlock device by a service provider. 343.302(2)(2) Any person violating sub. (1) shall be fined not less than $350 nor more than $1,100 and imprisoned for not less than 5 days nor more than 6 months. 343.302(3)(3) The department shall design a warning label which shall be affixed to each ignition interlock device upon installation. The label shall provide notice of the penalties for tampering with or circumventing the operation of the ignition interlock device under sub. (1) and s. 343.10 (5) (a) 3. Effective date noteNOTE: This section is shown as renumbered from s. 347.413 and affected by 2025 Wis. Act 210, sections 11 and 13, eff. on the first day of the 12th month beginning after the date specified in the Department of Transportation notice published in the Wisconsin Administrative Register under 2025 Wis. Act 210, section 17 (2). 343.303343.303 Preliminary screening test. If a law enforcement officer has probable cause to believe that the person is violating or has violated s. 346.63 (1) or (2m) 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, or if the officer detects any presence of alcohol, a controlled substance, controlled substance analog or other drug, or a combination thereof, on a person driving or operating or on duty time with respect to a commercial motor vehicle or has reason to believe that the person is violating or has violated s. 346.63 (7) or a local ordinance in conformity therewith, the officer, prior to an arrest, may request the person to provide a sample of his or her breath or oral fluids, or both, for a preliminary screening test using a device approved by the department for this purpose. The result of this preliminary screening test may be used by the law enforcement officer for the purpose of deciding whether or not the person shall be arrested for a violation of s. 346.63 (1), (2m), (5) or (7) or a local ordinance in conformity therewith, or s. 346.63 (2) or (6), 940.09 (1) or 940.25 and whether or not to require or request chemical tests as authorized under s. 343.305 (3). The result of the preliminary screening test shall not be admissible in any action or proceeding except to show probable cause for an arrest, if the arrest is challenged, or to prove that a chemical test was properly required or requested of a person under s. 343.305 (3). Following the screening test, additional tests may be required or requested of the driver under s. 343.305 (3). The general penalty provision under s. 939.61 (1) does not apply to a refusal to take a preliminary screening test. A law enforcement officer may collect and retain a sample of a person’s oral fluids only to the extent necessary to perform a preliminary screening test under this section and shall destroy the sample, or return the sample to the person, after conducting the preliminary screening test. A law enforcement officer may not collect or retain a sample of a person’s oral fluids under this section for any purpose other than a preliminary screening test. 343.303 AnnotationA prosecutor’s statement that the defendant failed a preliminary breath test was improper, but evidence that the defendant refused to take a breathalyzer test was relevant and constitutionally admissible. State v. Albright, 98 Wis. 2d 663, 298 N.W.2d 196 (Ct. App. 1980). 343.303 AnnotationA preliminary breath test result is not determinative of probable cause to arrest for driving while intoxicated. A low test result does not void the grounds for arrest. Dane County v. Sharpee, 154 Wis. 2d 515, 453 N.W.2d 508 (Ct. App. 1990). 343.303 AnnotationThe bar of preliminary breath tests under this section is limited to proceedings related to arrests for offenses contemplated under this statute including those related to motor vehicles and intoxication. State v. Beaver, 181 Wis. 2d 959, 512 N.W.2d 254 (Ct. App. 1994). 343.303 AnnotationThis section bars the evidentiary use of preliminary breath test (PBT) results in motor vehicle violation cases, but not in other actions. Prosecutors who wish to rely on PBT results are required to present evidence of the device’s scientific accuracy as a foundation for admission. State v. Doerr, 229 Wis. 2d 616, 599 N.W.2d 897 (Ct. App. 1999), 98-1047. 343.303 Annotation“Probable cause to believe” refers to a quantum of evidence greater than reasonable suspicion to make an investigative stop, but less than probable cause to make an arrest. County of Jefferson v. Renz, 231 Wis. 2d 293, 603 N.W.2d 541 (1999), 97-3512. 343.303 AnnotationBlood may be drawn in a search incident to an arrest for a non-drunk-driving offense if the police reasonably suspect that the defendant’s blood contains evidence of a crime. This section does not prohibit the consideration of a suspect’s refusal to submit to a preliminary breath test for purposes of determining whether a warrantless involuntary draw of the suspect’s blood was supported by reasonable suspicion. State v. Repenshek, 2004 WI App 229, 277 Wis. 2d 780, 691 N.W.2d 369, 03-3089. 343.303 AnnotationUnder St. George, 2002 WI 50, for a defendant to establish a constitutional right to the admissibility of proffered expert testimony, the defendant must satisfy a two-part inquiry determining whether the evidence is clearly central to the defense and the exclusion of the evidence is arbitrary and disproportionate to the purpose of the rule of exclusion, so that exclusion undermines fundamental elements of the defendant’s defense. In an operating while intoxicated prosecution, even if a defendant establishes a constitutional right to present an expert opinion that is based in part on preliminary breath test results, the right to do so is outweighed by the state’s compelling interest to exclude that evidence. State v. Fischer, 2010 WI 6, 322 Wis. 2d 265, 778 N.W.2d 629, 07-1898. But see Fischer v. Ozaukee County Circuit Court, 741 F. Supp. 2d 944 (2010). 343.303 AnnotationProbable cause exists to request a preliminary breath test sample when the driver is known to be subject to a 0.02 prohibited alcohol content standard, the officer knows it would take very little alcohol for the driver to exceed that limit, and the officer smells alcohol on the driver. State v. Goss, 2011 WI 104, 338 Wis. 2d 72, 806 N.W.2d 918, 10-1113. 343.303 AnnotationA preliminary breath test may be requested when an officer has a basis to justify an investigative stop but has not established probable cause to justify an arrest. Under the facts of this case, the officer would have been justified in asking the defendant to take a preliminary breath test without asking him to perform any field-sobriety tests. That the defendant successfully completed all properly administered field-sobriety tests did not subtract from the common-sense view that the defendant may have had an impermissible blood-alcohol level. State v. Felton, 2012 WI App 114, 344 Wis. 2d 483, 824 N.W.2d 871, 11-2119. 343.303 AnnotationThe Wisconsin Supreme Court’s decision in Fischer, 2010 WI 6, affirming the exclusion of the defendant’s expert’s testimony using preliminary breath test results involved an unreasonable application of federal law as determined by the U.S. Supreme Court. Fischer v. Ozaukee County Circuit Court, 741 F. Supp. 2d 944 (2010). 343.305343.305 Tests for intoxication; administrative suspension and court-ordered revocation. 343.305(1)(b)(b) “Drive” means the exercise of physical control over the speed and direction of a motor vehicle while it is in motion. 343.305(1)(c)(c) “Operate” means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion. 343.305(2)(2) Implied consent. Any person who is on duty time with respect to a commercial motor vehicle or drives or operates a motor vehicle upon the public highways of this state, or in those areas enumerated in s. 346.61, is deemed to have given consent to one or more tests of his or her breath, blood or urine, for the purpose of determining the presence or quantity in his or her blood or breath, of alcohol, controlled substances, controlled substance analogs or other drugs, or any combination of alcohol, controlled substances, controlled substance analogs and other drugs, when requested to do so by a law enforcement officer under sub. (3) (a) or (am). Any such tests shall be administered upon the request of a law enforcement officer. The law enforcement agency by which the officer is employed shall be prepared to administer, either at its agency or any other agency or facility, 2 of the 3 tests under sub. (3) (a) or (am) and may designate which of the tests shall be administered first. 343.305(3)(a)(a) Upon arrest of a person for violation of s. 346.63 (1), (2m) or (5) or a local ordinance in conformity therewith, or for a violation of s. 346.63 (2) or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, a law enforcement officer may request the person to provide one or more samples of his or her breath, blood or urine for the purpose specified under sub. (2). Compliance with a request for one type of sample does not bar a subsequent request for a different type of sample. 343.305(3)(am)(am) Prior to arrest, a law enforcement officer may request the person to provide one or more samples of his or her breath, blood or urine for the purpose specified under sub. (2) whenever a law enforcement officer detects any presence of alcohol, a controlled substance, a controlled substance analog or other drug, or a combination thereof, on a person driving or operating or on duty time with respect to a commercial motor vehicle or has reason to believe the person is violating or has violated s. 346.63 (7). Compliance with a request for one type of sample does not bar a subsequent request for a different type of sample. For the purposes of this paragraph, “law enforcement officer” includes inspectors in the performance of duties under s. 110.07 (3). 343.305(3)(c)(c) This section does not limit the right of a law enforcement officer to obtain evidence by any other lawful means. 343.305(4)(4) Information. At the time that a chemical test specimen is requested under sub. (3) (a) or (am), the law enforcement officer shall read the following to the person from whom the test specimen is requested: “You have either been arrested for an offense that involves driving or operating a motor vehicle after using alcohol or drugs, or both, or you are suspected of driving or being on duty time with respect to a commercial motor vehicle after using alcohol or drugs, or both.
This law enforcement agency now wants to test one or more samples of your breath, blood or urine to determine the concentration of alcohol or drugs in your system. If any test shows more alcohol in your system than the law permits while driving or a detectable amount of a restricted controlled substance, your operating privilege will be suspended. If you refuse any requested test, your operating privilege will be revoked and you will be subject to other penalties. The test results or the fact that you refused testing can be used against you in court.
If you take all the requested tests, you may also choose to take the alternative test that this law enforcement agency provides free of charge. You may also have a test conducted by a qualified person of your choice at your expense. You, however, will have to make your own arrangements for that test.
If you have a commercial driver license or were operating a commercial motor vehicle, other consequences may result from positive test results or from refusing testing, such as being placed out of service or disqualified.”
343.305(5)(5) Administering the test; additional tests. 343.305(5)(a)(a) If the person submits to a test under this section, the officer shall direct the administering of the test. A blood test is subject to par. (b). The person who submits to the test is permitted, upon his or her request, the alternative test provided by the agency under sub. (2) or, at his or her own expense, reasonable opportunity to have any qualified person of his or her own choosing administer a chemical test for the purpose specified under sub. (2). If the person has not been requested to provide a sample for a test under sub. (3) (a) or (am), the person may request a breath test to be administered by the agency or, at his or her own expense, reasonable opportunity to have any qualified person administer any test specified under sub. (3) (a) or (am). The failure or inability of a person to obtain a test at his or her own expense does not preclude the admission of evidence of the results of any test administered under sub. (3) (a) or (am). If a person requests the agency to administer a breath test and if the agency is unable to perform that test, the person may request the agency to perform a test under sub. (3) (a) or (am) that it is able to perform. The agency shall comply with a request made in accordance with this paragraph. 343.305(5)(b)(b) Blood may be withdrawn from the person arrested for violation of s. 346.63 (1), (2), (2m), (5), or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, or a local ordinance in conformity with s. 346.63 (1), (2m), or (5), or as provided in sub. (3) (am) to determine the presence or quantity of alcohol, a controlled substance, a controlled substance analog, or any other drug, or any combination of alcohol, controlled substance, controlled substance analog, and any other drug in the blood only by a physician, registered nurse, medical technologist, physician assistant, phlebotomist, or other medical professional who is authorized to draw blood, or person acting under the direction of a physician. 343.305(5)(c)(c) A person acting under par. (b), the employer of any such person and any hospital where blood is withdrawn by any such person have immunity from civil or criminal liability under s. 895.53. 343.305(5)(d)(d) At the trial of any civil or criminal action or proceeding arising out of the acts committed by a person alleged to have been driving or operating a motor vehicle while under the influence of an intoxicant, a controlled substance, a controlled substance analog or any other drug, or under the influence of any combination of alcohol, a controlled substance, a controlled substance analog and 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 having a prohibited alcohol concentration, or alleged to have been driving or operating or on duty time with respect to a commercial motor vehicle while having an alcohol concentration above 0.0 or possessing an intoxicating beverage, regardless of its alcohol content, or within 4 hours of having consumed or having been under the influence of an intoxicating beverage, regardless of its alcohol content, or of having an alcohol concentration of 0.04 or more, the results of a test administered in accordance with this section are admissible on the issue of whether the person was under the influence of an intoxicant, a controlled substance, a controlled substance analog or any other drug, or under the influence of any combination of alcohol, a controlled substance, a controlled substance analog and 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 any issue relating to the person’s alcohol concentration. Test results shall be given the effect required under s. 885.235. 343.305(5)(e)(e) At the trial of any civil or criminal action or proceeding arising out of the acts committed by a person alleged to have been driving or operating a motor vehicle while having a detectable amount of a restricted controlled substance in his or her blood, the results of a blood test administered in accordance with this section are admissible on any issue relating to the presence of a detectable amount of a restricted controlled substance in the person’s blood. Test results shall be given the effect required under s. 885.235. 343.305(6)(a)(a) Chemical analyses of blood or urine to be considered valid under this section shall have been performed substantially according to methods approved by the laboratory of hygiene and by an individual possessing a valid permit to perform the analyses issued by the department of health services. The department of health services shall approve laboratories for the purpose of performing chemical analyses of blood or urine for alcohol, controlled substances or controlled substance analogs and shall develop and administer a program for regular monitoring of the laboratories. A list of approved laboratories shall be provided to all law enforcement agencies in the state. Urine specimens are to be collected by methods specified by the laboratory of hygiene. The laboratory of hygiene shall furnish an ample supply of urine and blood specimen containers to permit all law enforcement officers to comply with the requirements of this section. 343.305(6)(b)(b) The department of transportation shall approve techniques or methods of performing chemical analysis of the breath and shall: 343.305(6)(b)1.1. Approve training manuals and courses throughout the state for the training of law enforcement officers in the chemical analysis of a person’s breath; 343.305(6)(b)2.2. Certify the qualifications and competence of individuals to conduct the analysis; 343.305(6)(b)3.3. Have trained technicians, approved by the secretary, test and certify the accuracy of the equipment to be used by law enforcement officers for chemical analysis of a person’s breath under sub. (3) (a) or (am) before regular use of the equipment and periodically thereafter at intervals of not more than 120 days; and 343.305(6)(b)4.4. Issue permits to individuals according to their qualifications. 343.305 Cross-referenceCross-reference: See also ch. Trans 311, Wis. adm. code. 343.305(6)(bm)(bm) Any relevant instruction, as defined in s. 440.075 (1), that an applicant for an approval, certification, or permit under par. (b) has obtained in connection with any military service, as defined in s. 111.32 (12g), counts toward satisfying any requirement for instruction for an approval, certification, or permit under par. (b) if the applicant demonstrates to the satisfaction of the department of transportation that the instruction obtained by the applicant is substantially equivalent to the instruction required for the approval, certificate, or permit under par. (b). 343.305(6)(c)(c) For purposes of this section, if a breath test is administered using an infrared breath-testing instrument: 343.305(6)(c)1.1. The test shall consist of analyses in the following sequence: one adequate breath sample analysis, one calibration standard analysis, and a 2nd, adequate breath sample analysis. 343.305(6)(c)2.2. A sample is adequate if the instrument analyzes the sample and does not indicate the sample is deficient. 343.305(6)(c)3.3. Failure of a person to provide 2 separate, adequate breath samples in the proper sequence constitutes a refusal. 343.305(6)(d)(d) The department of transportation may promulgate rules pertaining to the calibration and testing of preliminary breath screening test devices. 343.305(6)(e)1.1. In this paragraph, “licensor” means the department of health services or, with respect to permits issued under par. (b) 4., the department of transportation. 343.305(6)(e)2.2. In addition to any other information required by the licensor, an application for a permit or laboratory approval under this subsection shall include the following: 343.305(6)(e)2.a.a. Except as provided in subd. 2. am., in the case of an individual, the individual’s social security number. 343.305(6)(e)2.am.am. In the case of an individual who does not have a social security number, a statement made or subscribed under oath or affirmation that the applicant does not have a social security number. The form of the statement shall be prescribed by the department of children and families. A permit or approval that is issued or renewed under this section in reliance on a statement submitted under this subd. 2. am. is invalid if the statement is false. 343.305(6)(e)2.b.b. In the case of a person who is not an individual, the person’s federal employer identification number. 343.305(6)(e)3.a.a. The licensor shall deny an application for the issuance or, if applicable, renewal of a permit or laboratory approval if the information required under subd. 2. a., am. or b. is not included in the application.
