Wisconsin Legislature: SB338, s. 8

SB338,2,86 85.53 (1) (c) "Intoxicant" means any alcohol beverage, controlled substance,
7controlled substance analog or other drug or any combination thereof has the
8meaning given in s. 340.01 (25d).

SB338, s. 2 9Section 2 . 340.01 (5u) and (19d) of the statutes are created to read:

SB338,2,1110 340.01 (5u) "Bodily harm" means physical pain or injury, illness, or any
11impairment of physical condition.

SB338,3,4

1(19d) "Great bodily harm" means bodily injury which creates a substantial risk
2of death, or which causes serious permanent disfigurement, or which causes a
3permanent or protracted loss or impairment of the function of any bodily member or
4organ or other serious bodily injury.

Note: This Section creates definitions for "bodily harm" and "great bodily harm,"
using definitions currently set forth in s. 939.22 (4) and (14).

SB338, s. 3 5Section 3 . 340.01 (25d) and (73e) of the statutes are created to read:

SB338,3,66 340.01 (25d) "Intoxicant" means any of the following:

SB338,3,87 (a) Alcohol, a controlled substance, a controlled substance analog, any other
8drug, or a vapor-releasing substance.

SB338,3,109 (b) Any combination of alcohol, a controlled substance, a controlled substance
10analog, any other drug, or a vapor-releasing substance.

SB338,3,14 11(73e) "Under the influence of an intoxicant" means a condition in which a
12person's ability to operate a motor vehicle, because of the consumption or use of an
13intoxicant, is impaired to the extent that the person is less able to exercise the clear
14judgment and steady hand necessary to handle and control a motor vehicle.

Note: Current law treats the issue of operating a motor vehicle while intoxicated
using various terms, often inconsistently. The terms used are "intoxicant", "alcohol",
"controlled substance", "controlled substance analog", and "other drug". In the following
sections of the statutes, the terms "alcohol", "a controlled substance", and "controlled
substance analog" are used: ss. 343.10, 343.16, 343.30, 343.305, 343.307, 343.44,
346.637, and 895.53, stats. Other sections of the statutes make use of these terms plus
the term "other drug": ss. 85.53, 343.303, 343.305, 343.31, 343.315, 343.63, 344.576,
351.02, and 346.65, stats. In addition, the term "intoxicant" is intermittently used.

This Section creates a definition of the term "intoxicant" to mean any of the
following:

1. Alcohol, a controlled substance, a controlled substance analog, any other drug,
or a vapor-releasing substance.

2. Any combination of alcohol, a controlled substance, a controlled substance
analog, any other drug, or a vapor-releasing substance.

The use of the definition of the term "intoxicant" in the statutes will indicate
consistently that a person may be considered intoxicated due to the individual impacts
or the combined impacts of alcohol, a controlled substance, a controlled substance analog,
any other drug, or a vapor-releasing substance.

Another issue presented by this bill is the meaning of the phrase "operating a motor
vehicle while under the influence". For example, s. 343.305 (9) (a) 5. a., states in part:

"Whether the officer had probable cause to believe the person was driving or
operating a motor vehicle while under the influence of alcohol, a controlled substance, or
a controlled substance analog or any combination of alcohol, a controlled substance, and
a controlled substance analog, under the influence of any other drug to a degree which
renders the person incapable of safely driving, or under the combined influence of alcohol
and any other drug to a degree which renders the person incapable of safely driving ...."

It appears from the above-cited section of the statutes that the phrase "to a degree
which renders the person incapable of safely driving" applies only to a person acting
under the influence of "any other drug" or "alcohol and any other drug".

Wisconsin criminal jury instructions state that the phrase "under the influence of
an intoxicant" means that a driver's ability to operate a vehicle is impaired because of the
consumption of an alcoholic beverage. "Not every person who has consumed alcoholic
beverages is `under the influence' as that term is used here. What must be established
is that the person has consumed a sufficient amount of alcohol to cause him to be less able
to exercise the clear judgment and steady hand necessary to handle and control a motor
vehicle. It is not required that impaired ability to operate be demonstrated by particular
acts of unsafe driving. What is required is that the person's ability to safely control his
vehicle be impaired". [See WIS JI-CRIMINAL s. 2663.]

With respect to operating a motor vehicle while under the influence of a drug, the
Wisconsin criminal jury instructions state that one element of this offense requires that
the defendant drove or operated a motor vehicle while under the influence of a drug to
a degree which rendered the defendant incapable of safely driving. [See WI
JI-CRIMINAL s. 2666.]

This bill creates a definition of the term "under the influence of an intoxicant" by
codifying the language of WI JI-CRIMINAL s. 2663. Rather than using 2 standards, as
under current law, the bill applies the definition to the operation of a motor vehicle when
the consumption of any intoxicant is involved. Again, the term "intoxicant" is defined to
mean alcohol, a controlled substance, a controlled substance analog, any other drug, a
vapor-releasing substance, or any combination of these items.

SB338, s. 4 1Section 4. 343.10 (8) (intro.) of the statutes is amended to read:

SB338,4,62 343.10 (8) Violation of restrictions. (intro.) Any person who violates a
3restriction on an occupational license as to hours of the day, area, routes or purpose
4of travel, vehicles allowed to be operated, use of an ignition interlock device, sobriety,
5or use of alcohol, controlled substances or controlled substance analogs an intoxicant
6shall be:

SB338, s. 5 7Section 5. 343.16 (5) (a) of the statutes, as affected by 1997 Wisconsin Act 84,
8is amended to read:

SB338,5,22

1343.16 (5) (a) The secretary may require any applicant for a license or any
2licensed operator to submit to a special examination by such persons or agencies as
3the secretary may direct to determine incompetency, physical or mental disability,
4disease, or any other condition which might prevent such applicant or licensed
5person from exercising reasonable and ordinary control over a motor vehicle. When
6the department requires the applicant to submit to an examination, the applicant
7shall pay the cost thereof. If the department receives an application for a renewal
8or duplicate license after voluntary surrender under s. 343.265 or receives a report
9from a physician or optometrist under s. 146.82 (3), or if the department has a report
10of 2 or more arrests within a one-year period for any combination of violations of s.
11346.63 (1) or (5) or a local ordinance in conformity therewith or a law of a federally
12recognized American Indian tribe or band in this state in conformity with s. 346.63
13(1) or (5), or s. 346.63 (1m), 1985 stats., or s. 346.63 (2) or (6) or 940.25, or s. 940.09
14where the offense involved the use of a vehicle, the department shall determine, by
15interview or otherwise, whether the operator should submit to an examination under
16this section. The examination may consist of an assessment. If the examination
17indicates that education or treatment for a disability, disease, or condition
18concerning the use of alcohol, a controlled substance or a controlled substance analog
19an intoxicant is appropriate, the department may order a driver safety plan in
20accordance with s. 343.30 (1q). If there is noncompliance with assessment or the
21driver safety plan, the department shall revoke the person's operating privilege in
22the manner specified in s. 343.30 (1q) (d).

SB338, s. 6 23Section 6. 343.30 (1g) (a) of the statutes is amended to read:

SB338,6,224 343.30 (1g) (a) Except as provided in par. pars. (b) and (c), a court may suspend
25a person's operating privilege for any period not exceeding 6 months upon the

1person's conviction for violating s. 343.44 (1) (a), (b), or (d) or a local ordinance in
2conformity therewith.

SB338, s. 7 3Section 7. 343.30 (1g) (b) of the statutes is amended to read:

SB338,6,114 343.30 (1g) (b) A Except as provided in par. (c), a court shall revoke a person's
5operating privilege upon the person's conviction for violating s. 343.44 (1) (a), (b), or
6(d) or a local ordinance in conformity therewith if the person has been convicted of
73 or more prior violations of s. 343.44 (1) (a), (b), or (d), or similar violations under
8s. 343.44 (1), 1997 stats., or a local ordinance in conformity therewith, within the
95-year period preceding the violation. The revocation shall be for a period of 6
10months, unless the court orders a period of revocation of less than 6 months and
11places its reasons for ordering the lesser period of revocation on the record.

SB338, s. 8 12Section 8. 343.30 (1g) (c) of the statutes is created to read:

SB338,6,1713 343.30 (1g) (c) A court shall suspend a person's operating privilege upon the
14person's conviction under s. 343.44 for violating s. 343.10 (5) (a) 3. or under s.
15347.413. The revocation shall be for a period of not less than 6 months nor more than
169 months. If a person is convicted under s. 347.413, the person is eligible for an
17occupational license at any time.

Note: This Section creates a license suspension provision applicable to persons
who are convicted of tampering with an ignition interlock device (IID), either under the
general tampering provision in s. 347.413, stats., or the tampering language in s. 343.10,
stats. As with the current IID tampering laws, this suspension applies to whoever
commits the tampering violation (that is, the operator subject to the IID restriction or
anyone else tampering with the device). Except where an occupational license is
involved, the suspension period and the provision making the operator eligible for an
occupational license at any time is the same as that currently applicable to a first offense
violator of the statutes prohibiting the operation of a motor vehicle while under the
influence of an intoxicant or other drug (OWI). If the violator is an OWI violator who has
an occupational license, the provisions of the occupational license statute determine
future eligibility for such a license.

SB338, s. 9 18Section 9. 343.30 (1q) (c) 1. (intro.) of the statutes is amended to read:

SB338,7,9

1343.30 (1q) (c) 1. (intro.) Except as provided in subd. 1. a. or b., the court shall
2order the person to submit to and comply with an assessment by an approved public
3treatment facility, as defined in s. 51.45 (2) (c) , for examination of the person's use
4of alcohol, controlled substances or controlled substance analogs an intoxicant and
5development of a driver safety plan for the person. The court shall notify the
6department of transportation of the assessment order. The court shall notify the
7person that noncompliance with assessment or the driver safety plan will result in
8revocation of the person's operating privilege until the person is in compliance. The
9assessment order shall:

SB338, s. 10 10Section 10. 343.30 (1q) (d) of the statutes, as affected by 1997 Wisconsin Act
1184, is amended to read:

SB338,9,212 343.30 (1q) (d) The assessment report shall order compliance with a driver
13safety plan. The report shall inform the person of the fee provisions under s. 46.03
14(18) (f). The driver safety plan may include a component that makes the person
15aware of the effect of his or her offense on a victim and a victim's family. The driver
16safety plan may include treatment for the person's misuse, abuse, or dependence on
17alcohol, controlled substances or controlled substance analogs an intoxicant, or
18attendance at a school under s. 345.60, or both. If the plan requires inpatient
19treatment, the treatment shall not exceed 30 days. A driver safety plan under this
20paragraph shall include a termination date consistent with the plan which shall not
21extend beyond one year. The county department under s. 51.42 shall assure
22notification of the department of transportation and the person of the person's
23compliance or noncompliance with assessment and with treatment. The school
24under s. 345.60 shall notify the department, the county department under s. 51.42,
25and the person of the person's compliance or noncompliance with the requirements

1of the school. Nonpayment of the assessment fee or, if the person has the ability to
2pay, nonpayment of the driver safety plan fee is noncompliance with the court order.
3If the department is notified of any noncompliance, other than for nonpayment of the
4assessment fee or driver safety plan fee, it shall revoke the person's operating
5privilege until the county department under s. 51.42 or the school under s. 345.60
6notifies the department that the person is in compliance with assessment or the
7driver safety plan. If the department is notified that a person has not paid the
8assessment fee, or that a person with the ability to pay has not paid the driver safety
9plan fee, the department shall suspend the person's operating privilege for a period
10of 2 years or until it receives notice that the person has paid the fee, whichever occurs
11first. The department shall notify the person of the suspension or revocation, the
12reason for the suspension or revocation, and the person's right to a review. A person
13may request a review of a revocation based upon failure to comply with a driver safety
14plan within 10 days of notification. The review shall be handled by the subunit of
15the department of transportation designated by the secretary. The issues at the
16review are limited to whether the driver safety plan, if challenged, is appropriate and
17whether the person is in compliance with the assessment order or the driver safety
18plan. The review shall be conducted within 10 days after a request is received. If the
19driver safety plan is determined to be inappropriate, the department shall order a
20reassessment and, if the person is otherwise eligible, the department shall reinstate
21the person's operating privilege. If the person is determined to be in compliance with
22the assessment or driver safety plan, and if the person is otherwise eligible, the
23department shall reinstate the person's operating privilege. If there is no decision
24within the 10-day period, the department shall issue an order reinstating the

1person's operating privilege until the review is completed, unless the delay is at the
2request of the person seeking the review.

SB338, s. 11 3Section 11. 343.30 (1q) (h) of the statutes is amended to read:

SB338,9,224 343.30 (1q) (h) The court or department shall provide that the period of
5suspension or revocation imposed under this subsection shall be reduced by any
6period of suspension or revocation previously served under s. 343.305 if the
7suspension or revocation under s. 343.305 and the conviction for violation of s. 346.63
8(1) or (2m) or a local ordinance in conformity therewith arise out of the same incident
9or occurrence. The court or department shall order that the period of suspension or
10revocation imposed under this subsection run concurrently with any period of time
11remaining on a suspension or revocation imposed under s. 343.305 arising out of the
12same incident or occurrence. The court or department shall order that any period
13of time that must expire before a person is eligible for an occupational license under
14this subsection be reduced by any similar period previously expired under s. 343.305
15if the suspension or revocation under s. 343.305 and the conviction for violation of
16s. 346.63 (1) or a local ordinance in conformity therewith arise out of the same
17incident or occurrence. The court or department shall order that any period of time
18that must expire before a person is eligible for an occupational license under this
19subsection run concurrently with any similar period of time remaining under s.
20343.305 arising out of the same incident or occurrence. The court may modify an
21occupational license authorized under s. 343.305 (8) (d) in accordance with this
22subsection.

Note: Section 343.30 (1q) (b), stats., provides that a person who is convicted of
driving or operating a motor vehicle while under the influence of an intoxicant or other
drug or while maintaining a prohibited alcohol concentration will be subject to revocation
of the person's operating privilege and a specified period of time within which the person
is not eligible to obtain an occupational license. Similarly, s. 343.305 (10) (b), stats.,

provides that a person who improperly refuses to take a test to determine the presence
of alcohol or other drugs will be subject to a revocation of the person's operating privilege
and a specified period of time within which the person is not eligible to obtain an
occupational license. This Section provides that, for a conviction and a refusal that arise
out of the same incident or occurrence, the periods of time within which a person will not
be eligible for an occupational license will run concurrently or, if an eligibility period has
begun to run for a refusal, the latter period will operate as an offset to the period of
ineligibility for an occupational license under s. 343.30, stats.

SB338, s. 12 1Section 12. 343.303 of the statutes is renumbered 343.303 (1) (intro.) and
2amended to read:

SB338,10,63 343.303 (1) (intro.) If a A law enforcement officer has probable cause to believe ,
4prior to an arrest, may request a person to provide a sample of his or her breath for
5a preliminary breath screening test using a device approved by the department for
6this purpose if any of the following conditions exists:

SB338,10,10 7(a) The law enforcement officer has reasonable suspicion that the person is
8violating or has violated s. 346.63 (1) or (2m) or a local ordinance in conformity
9therewith, or s. 346.63 (2) or (6) or, 940.09 (1), or 940.25 or s. 940.09 where the offense
10involved the use of a vehicle, or if the.

SB338,10,14 11(b) The law enforcement officer detects any presence of alcohol, a controlled
12substance, controlled substance analog or other drug, or a combination thereof, an
13intoxicant on a person driving or operating or on duty time with respect to a
14commercial motor vehicle or.

SB338,10,19 15(c) The law enforcement officer has reason to believe that the person is violating
16or has violated s. 346.63 (7) or a local ordinance in conformity therewith, the officer,
17prior to an arrest, may request the person to provide a sample of his or her breath
18for a preliminary breath screening test using a device approved by the department
19for this purpose.

SB338,11,4 20(2) The result of this the preliminary breath screening test under sub. (1) may
21be used by the law enforcement officer for the purpose of deciding whether or not the

1person shall be arrested for a violation of s. 346.63 (1), (2m), (5), or (7) or a local
2ordinance in conformity therewith, or s. 346.63 (2) or (6), 940.09 (1), or 940.25 and
3whether or not to require or request chemical tests as authorized under s. 343.305
4(3).

SB338,11,10 5(3) The result of the preliminary breath screening test under sub. (1) shall not
6be admissible in any action or proceeding except to show probable cause for an arrest,
7if the arrest is challenged, to show the presence of an intoxicant in a person's breath,
8blood, or urine, or to prove that a chemical test was properly required or requested
9of a person under s. 343.305 (3). Following the screening test, additional tests may
10be required or requested of the driver under s. 343.305 (3).

SB338,11,12 11(4) The general penalty provision under s. 939.61 (1) does not apply to a refusal
12to take a preliminary breath screening test under this section.

Note: This Section reorganizes s. 343.303 and provides that a law enforcement
officer may require a preliminary breath screening test if there is a reasonable suspicion,
rather than probable cause to believe, that a violation has occurred. This change is based
on the decision of the Wisconsin Supreme Court in County of Jefferson v. Renz, 231 Wis.
2d 293 (1999).

In addition, current law provides that a preliminary breath screening test is not
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.
This Section provides that the result of the preliminary breath screening test also may
be used as evidence of the presence of an intoxicant in a person's breath, blood, or urine;
that is, the result of the test is admissible for the purpose of providing evidence of the
existence of an intoxicant but not for the purpose of providing evidence of the amount of
an intoxicant.

SB338, s. 13 13Section 13. 343.305 (2), (3) (am) and (b), (4) (form) and (5) (b) of the statutes
14are amended to read:

SB338,12,915 343.305 (2) Implied consent. Any person who is on duty time with respect to
16a commercial motor vehicle or drives or operates a motor vehicle upon the public
17highways of this state, or in those areas enumerated in s. 346.61, is deemed to have
18given consent to one or more tests of his or her breath, blood, or urine, for the purpose

1of determining the presence or quantity of an intoxicant in his or her blood or breath,
2of alcohol, controlled substances, controlled substance analogs or other drugs, or any
3combination of alcohol, controlled substances, controlled substance analogs and
4other drugs breath, blood, or urine, when requested to do so by a law enforcement
5officer under sub. (3) (a) or (am) or when required to do so under sub. (3) (b). Any such
6tests shall be administered upon the request of a law enforcement officer. The law
7enforcement agency by which the officer is employed shall be prepared to administer,
8either at its agency or any other agency or facility, 2 of the 3 tests under sub. (3) (a)
9or (am), and may designate which of the tests shall be administered first.

SB338,12,19 10(3) (am) Prior to arrest, a law enforcement officer may request the person to
11provide one or more samples of his or her breath, blood, or urine for the purpose
12specified under sub. (2) whenever a law enforcement officer detects any presence of
13alcohol, a controlled substance, a controlled substance analog or other drug, or a
14combination thereof, an intoxicant on a person driving or operating or on duty time
15with respect to a commercial motor vehicle or has reason to believe the person is
16violating or has violated s. 346.63 (7). Compliance with a request for one type of
17sample does not bar a subsequent request for a different type of sample. For the
18purposes of this paragraph, "law enforcement officer" includes inspectors in the
19performance of duties under s. 110.07 (3).

SB338,13,420 (b) A person who is unconscious or otherwise not capable of withdrawing
21consent is presumed not to have withdrawn consent under this subsection, and if a
22law enforcement officer has probable cause to believe that the person has violated
23s. 346.63 (1), (2m), or (5) or a local ordinance in conformity therewith, or s. 346.63 (2)
24or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, or detects
25any presence of alcohol, controlled substance, controlled substance analog or other

1drug, or a combination thereof, an intoxicant on a person driving or operating or on
2duty time with respect to a commercial motor vehicle or has reason to believe the
3person has violated s. 346.63 (7), one or more samples tests specified in par. (a) or
4(am) may be administered to the person.

SB338,13,5 5(4) (form)

SB338,13,9 6"You have either been arrested for an offense that involves driving or operating
7a motor vehicle while under the influence of alcohol or drugs, or both an intoxicant,
8or you are suspected of driving or being on duty time with respect to a commercial
9motor vehicle after consuming an intoxicating beverage.

SB338,13,1710 This law enforcement agency now wants to test one or more samples of your
11breath, blood, or urine to determine the concentration of alcohol or drugs an
12intoxicant in your system. If any test shows more alcohol in your system than the law
13permits while driving, your operating privilege will be suspended. If you refuse to
14take any test that this agency requests, your operating privilege will be revoked and
15you will be subject to other penalties. The test results or the fact that you refused
16testing can be used against you in court. The law does not provide you with a right
17to contact an attorney before submitting to a chemical test.

SB338,13,2118 If you take all of the requested tests, you may choose to take further tests. You
19may take the alternative test that this law enforcement agency provides free of
20charge. You also may have a test conducted by a qualified person of your choice at
21your expense. You, however, will have to make your own arrangements for that test.

SB338,13,2422 If you have a commercial driver license or were operating a commercial motor
23vehicle, other consequences may result from positive test results or from refusing
24testing, such as being placed out of service or disqualified."

SB338,14,8

1(5) (b) Blood may be withdrawn from the person arrested for violation of s.
2346.63 (1), (2), (2m), (5), or (6) or 940.25, or s. 940.09 where the offense involved the
3use of a vehicle, or a local ordinance in conformity with s. 346.63 (1), (2m), or (5), or
4as provided in sub. (3) (am) or (b) to determine the presence or quantity of alcohol,
5a controlled substance, a controlled substance analog or any other drug, or any
6combination of alcohol, controlled substance, controlled substance analog and any
7other drug an intoxicant in the blood only by a physician, registered nurse, medical
8technologist, physician assistant, or person acting under the direction of a physician.

Note: Section 343.305 (4), stats., requires that a law enforcement officer provide
a person specified notifications at the time that a chemical test specimen is requested.
This Section adds to the notice a provision that when a chemical test specimen is
requested, the person to be tested does not have the right to contact an attorney prior to
testing.

SB338, s. 14 9Section 14. 343.305 (5) (d) of the statutes is repealed and recreated to read:

SB338,14,1310 343.305 (5) (d) The results of a test administered in accordance with this
11section are admissible on the issue of whether a person was under the influence of
12an intoxicant or any issue relating to the person's alcohol concentration in a civil or
13criminal proceeding in which the person is alleged to have done any of the following:

SB338,14,1514 1. Driven or operated a motor vehicle while under the influence of an
15intoxicant.

SB338,14,1616 2. Had a prohibited alcohol concentration.

SB338,14,1817 3. Driven or operated or been on duty time with respect to a commercial motor
18vehicle in violation of s. 346.63 (7).

SB338, s. 15 19Section 15. 343.305 (5) (e) of the statutes is created to read:

SB338,14,2120 343.305 (5) (e) Test results under this section shall be given the effect required
21under s. 885.235.

SB338, s. 16 22Section 16. 343.305 (6) (a) of the statutes is amended to read:

SB338,15,12

1343.305 (6) (a) Chemical analyses of blood or urine to be considered valid under
2this section shall have been performed substantially according to methods approved
3by the laboratory of hygiene and by an individual possessing a valid permit to
4perform the analyses issued by the department of health and family services. The
5department of health and family services shall approve laboratories for the purpose
6of performing chemical analyses of blood or urine for alcohol, controlled substances
7or controlled substance analogs an intoxicant and shall develop and administer a
8program for regular monitoring of the laboratories. A list of approved laboratories
9shall be provided to all law enforcement agencies in the state. Urine specimens are
10to be collected by methods specified by the laboratory of hygiene. The laboratory of
11hygiene shall furnish an ample supply of urine and blood specimen containers to
12permit all law enforcement officers to comply with the requirements of this section.

SB338, s. 17 13Section 17 . 343.305 (9) (a) (intro.) and 4. of the statutes are amended to read:

SB338,16,214 343.305 (9) (a) (intro.) If a person refuses to take a test under sub. (3) (a), the
15law enforcement officer shall immediately take possession of the person's license and
16prepare a notice of intent to revoke, by court order under sub. (10), the person's
17operating privilege. If the person was driving or operating a commercial motor
18vehicle, the officer shall issue an out-of-service order to the person for the 24 hours
19after the refusal and notify the department in the manner prescribed by the
20department. The officer shall issue a copy of the notice of intent to revoke the
21privilege to the person and submit or mail a copy with the person's license to the clerk
22of the circuit court for the county in which the arrest under sub. (3) (a) was made.
23The officer shall also mail a copy of the notice of intent to revoke to the district
24attorney for that county and the department. The notice of intent to revoke the

1person's operating privilege shall contain substantially all of the following
2information:

SB338,16,73 4. That the person may request a hearing on the revocation within 10 days by
4mailing or delivering a written request to the clerk of the appropriate circuit court
5whose address is specified in the notice. If no request for a hearing is received within
6the 10-day period, the revocation period commences 30 days after the notice is
7issued.

SB338, s. 18 8Section 18. 343.305 (9) (a) 5. a. and c. of the statutes are amended to read:

SB338,16,199 343.305 (9) (a) 5. a. Whether the officer had probable cause to believe the
10person was driving or operating a motor vehicle while under the influence of alcohol,
11a controlled substance or a controlled substance analog or any combination of
12alcohol, a controlled substance and a controlled substance analog, under the
13influence of any other drug to a degree which renders the person incapable of safely
14driving, or under the combined influence of alcohol and any other drug to a degree
15which renders the person incapable of safely driving an intoxicant or having a
16prohibited alcohol concentration or, if the person was driving or operating a
17commercial motor vehicle, an alcohol concentration of 0.04 or more and whether the
18person was lawfully placed under arrest for violation of s. 346.63 (1), (2m), or (5) or
19a local ordinance in conformity therewith or s. 346.63 (2) or (6), 940.09 (1), or 940.25.

SB338,16,2420 c. Whether the person refused to permit the test. The person shall not be
21considered to have refused the test if it is shown by a preponderance of evidence that
22the refusal was due to a physical inability to submit to the test due to a physical
23disability or disease unrelated to the use of alcohol, controlled substances, controlled
24substance analogs or other drugs an intoxicant.

SB338, s. 19 25Section 19. 343.305 (9) (am) (intro.) and 4. of the statutes are amended to read:

SB338,17,12

1343.305 (9) (am) (intro.) If a person driving or operating or on duty time with
2respect to a commercial motor vehicle refuses a test under sub. (3) (am), the law
3enforcement officer shall immediately take possession of the person's license, issue
4an out-of-service order to the person for the 24 hours after the refusal and notify the
5department in the manner prescribed by the department, and prepare a notice of
6intent to revoke, by court order under sub. (10), the person's operating privilege. The
7officer shall issue a copy of the notice of intent to revoke the privilege to the person
8and submit or mail a copy with the person's license to the clerk of the circuit court
9for the county in which the refusal is made. The officer shall also mail a copy of the
10notice of intent to revoke to the district attorney for that county and the department.
11The notice of intent to revoke the person's operating privilege shall contain
12substantially all of the following information:

SB338,17,1713 4. That the person may request a hearing on the revocation within 10 days by
14mailing or delivering a written request to the clerk of the appropriate circuit court
15whose address is specified in the notice. If no request for a hearing is received within
16the 10-day period, the revocation period commences 30 days after the notice is
17issued.

SB338, s. 20 18Section 20 . 343.305 (9) (am) 5. a. and c. of the statutes are amended to read:

SB338,17,2219 343.305 (9) (am) 5. a. Whether the officer detected any presence of alcohol,
20controlled substance, controlled substance analog or other drug, or a combination
21thereof, an intoxicant on the person or had reason to believe that the person was
22violating or had violated s. 346.63 (7).

SB338,18,223 c. Whether the person refused to permit the test. The person shall not be
24considered to have refused the test if it is shown by a preponderance of evidence that
25the refusal was due to a physical inability to submit to the test due to a physical

1disability or disease unrelated to the use of alcohol, controlled substances, controlled
2substance analogs or other drugs an intoxicant.

Note: Sections 17 to 20 amend s. 343.305 (9) (a) and (am), stats., to clarify that
the notice of intent to revoke a person's operating privilege must include the address of
the clerk of the appropriate circuit court that may hold a revocation hearing.

SB338, s. 21 3Section 21. 343.305 (9) (c) of the statutes is amended to read:

SB338,18,94 343.305 (9) (c) If a law enforcement officer informs the circuit court that a
5person has refused to submit to a test under sub. (3) (a) or (am), the court shall be
6prepared to hold any requested hearing to determine if the refusal was proper. The
7scope of the hearing shall be limited to the issues outlined in par. (a) 5. or (am) 5.
8Neither party is entitled to pretrial discovery. Section 967.055 applies to any hearing
9under this subsection.

Note: This Section amends s. 343.305 (9) (c), stats., to clarify that pretrial
discovery is not available in a refusal hearing. This amendment reverses the holding in
State v. Schoepp, 204 Wis. 2d 266 (Ct. App. 1996).

SB338, s. 22 10Section 22. 343.305 (10) (c) 1. (intro.) of the statutes is amended to read:

SB338,18,1911 343.305 (10) (c) 1. (intro.) Except as provided in subd. 1. a. or b., the court shall
12order the person to submit to and comply with an assessment by an approved public
13treatment facility as defined in s. 51.45 (2) (c) for examination of the person's use of
14alcohol, controlled substances or controlled substance analogs an intoxicant and
15development of a driver safety plan for the person. The court shall notify the person
16and the department of transportation of the assessment order. The court shall also
17notify the person that noncompliance with assessment or the driver safety plan will
18result in license suspension until the person is in compliance. The assessment order
19shall:

SB338, s. 23 20Section 23. 343.305 (10) (d) of the statutes, as affected by 1997 Wisconsin Act
2184, is amended to read:

SB338,20,15

1343.305 (10) (d) The assessment report shall order compliance with a driver
2safety plan. The report shall inform the person of the fee provisions under s. 46.03
3(18) (f). The driver safety plan may include a component that makes the person
4aware of the effect of his or her offense on a victim and a victim's family. The driver
5safety plan may include treatment for the person's misuse, abuse, or dependence on
6alcohol, controlled substances or controlled substance analogs, an intoxicant or
7attendance at a school under s. 345.60, or both. If the plan requires inpatient
8treatment, the treatment shall not exceed 30 days. A driver safety plan under this
9paragraph shall include a termination date consistent with the plan which shall not
10extend beyond one year. The county department under s. 51.42 shall assure
11notification of the department of transportation and the person of the person's
12compliance or noncompliance with assessment and treatment. The school under s.
13345.60 shall notify the department, the county department under s. 51.42, and the
14person of the person's compliance or noncompliance with the requirements of the
15school. Nonpayment of the assessment fee or, if the person has the ability to pay,
16nonpayment of the driver safety plan fee is noncompliance with the court order. If
17the department is notified of noncompliance, other than for nonpayment of the
18assessment fee or driver safety plan fee, it shall revoke the person's operating
19privilege until the county department under s. 51.42 or the school under s. 345.60
20notifies the department that the person is in compliance with assessment or the
21driver safety plan. If the department is notified that a person has not paid the
22assessment fee, or that a person with the ability to pay has not paid the driver safety
23plan fee, the department shall suspend the person's operating privilege for a period
24of 2 years or until it receives notice that the person has paid the fee, whichever occurs
25first. The department shall notify the person of the suspension or revocation, the

1reason for the suspension or revocation, and the person's right to a review. A person
2may request a review of a revocation based upon failure to comply with a driver safety
3plan within 10 days of notification. The review shall be handled by the subunit of
4the department of transportation designated by the secretary. The issues at the
5review are limited to whether the driver safety plan, if challenged, is appropriate and
6whether the person is in compliance with the assessment order or the driver safety
7plan. The review shall be conducted within 10 days after a request is received. If the
8driver safety plan is determined to be inappropriate, the department shall order a
9reassessment and if the person is otherwise eligible, the department shall reinstate
10the person's operating privilege. If the person is determined to be in compliance with
11the assessment or driver safety plan, and if the person is otherwise eligible, the
12department shall reinstate the person's operating privilege. If there is no decision
13within the 10-day period, the department shall issue an order reinstating the
14person's operating privilege until the review is completed, unless the delay is at the
15request of the person seeking the review.