Wisconsin Legislature: AB873: Bill Text

LRB-3896/1

EHS:kjf

2017 - 2018 LEGISLATURE

2017 Assembly BILL 873

January 25, 2018 - Introduced by Representatives Jacque, Horlacher, Kremer,
Anderson, Berceau and Subeck. Referred to Committee on Criminal Justice
and Public Safety.

AB873,2,12 1An Act to repeal 23.33 (13) (br); to renumber 30.80 (6) (c); to renumber and
2amend 23.33 (1) (jm), 23.33 (13) (b) 4., 23.33 (13) (d), 23.335 (1) (zf), 23.335 (23)
3(c) 4., 23.335 (23) (g), 30.50 (9x), 350.01 (10r) and 350.11 (3) (c); to amend 23.33
4(4c) (a) 3., 23.33 (4c) (a) 4., 23.33 (4c) (b) 3., 23.33 (4t), 23.33 (13) (b) 1., 23.33 (13)
5(b) 2., 23.33 (13) (b) 3., 23.33 (13) (bg), 23.33 (13) (cm), 23.33 (13) (dm), 23.335
6(12) (a) 3., 23.335 (12) (a) 4., 23.335 (12) (b) 3., 23.335 (12) (j), 23.335 (23) (c) 1.,
723.335 (23) (c) 2., 23.335 (23) (c) 3., 23.335 (23) (h), 30.681 (1) (bn), 30.681 (1)
8(c), 30.681 (2) (c), 30.681 (2) (d) 1. a., 30.686, 30.74 (1) (bn), 30.80 (6) (a) 1., 30.80
9(6) (a) 2., 30.80 (6) (a) 3., 30.80 (6) (a) 4., 30.80 (6) (a) 5., 30.80 (6) (a) 6., 30.80
10(6) (e), 59.54 (14) (g), 343.10 (1) (a), 343.10 (2) (a) 1., 343.10 (9), 343.21 (1) (jr),
11350.101 (1) (d), 350.101 (2) (c), 350.106, 350.11 (3) (a) 1., 350.11 (3) (a) 2., 350.11
12(3) (a) 3., 350.11 (3) (bm), 350.11 (3) (cm), 940.09 (1m) (b) and 940.25 (1m) (b);
13and to create 23.33 (1) (ib), 23.33 (1) (ih), 23.33 (1) (jd), 23.33 (1) (jh), 23.33 (1)
14(jk), 23.33 (4y), 23.33 (13) (b) 4b., 23.33 (13) (b) 5., 23.33 (13) (bm), 23.33 (13) (ce),

123.33 (13) (d) 2., 23.33 (13) (eg), 23.335 (1) (km), 23.335 (1) (nm), 23.335 (1) (zdr),
223.335 (1) (zer), 23.335 (1) (zet), 23.335 (12) (km), 23.335 (23) (c) 4b., 23.335 (23)
3(c) 5., 23.335 (23) (cg), 23.335 (23) (dm), 23.335 (23) (dr), 23.335 (23) (fm), 23.335
4(23) (g) 2., 23.335 (23) (im), 30.50 (4n), 30.50 (4v), 30.50 (9m), 30.50 (9s), 30.50
5(9t), 30.688, 30.80 (6) (am), 30.80 (6) (ar), 30.80 (6) (bg), 30.80 (6) (bn), 30.80 (6)
6(c) 2., 30.80 (6) (cm), 350.01 (9b), 350.01 (10p), 350.01 (10q), 350.1075, 350.11
7(3) (a) 4b., 350.11 (3) (a) 5., 350.11 (3) (am), 350.11 (3) (ar), 350.11 (3) (bg), 350.11
8(3) (c) 2. and 350.11 (3) (e) of the statutes; relating to: intoxicated operation of
9all-terrain vehicles, utility terrain vehicles, off-highway motorcycles,
10snowmobiles, motorboats, and motor vehicles, snowmobile safety instruction
11for persons under 16 years of age, providing a penalty, and providing a criminal
12penalty.

Analysis by the Legislative Reference Bureau

This bill makes the laws regulating the intoxicated operation of different
recreational vehicles more consistent.

Under current law, a person may not operate a snowmobile, an all-terrain
vehicle (ATV), a utility terrain vehicle (UTV), an off-highway motorcycle (OHM), or
a motorboat while under the influence of alcohol or a controlled substance to a degree
that he or she cannot operate the vehicle or boat safely. Under current law, a personal
watercraft is included in the definition of “motorboat." Current law also prohibits
the operation of an ATV, a UTV, an OHM, a recreational motorboat, or a snowmobile
by a person who has an alcohol concentration of 0.08 or more. For motorboats being
operated on a commercial basis, the maximum alcohol concentration is 0.04. These
laws are respectively referred to under current law as the intoxicated operation of
an ATV or UTV law, the intoxicated operation of an OHM law, the intoxicated boating
law, and the intoxicated snowmobiling law. Under current law, a person who refuses
to submit to a legal request for a breath, blood, or urine sample pursuant to an arrest
for operating a snowmobile, an ATV, a UTV, an OHM, or a recreational motorboat
while under the influence is in violation of what is known as the refusal law.

Under current law, in imposing a penalty for a violation of the intoxicated
operation of an ATV or UTV, the intoxicated operation of an OHM, the intoxicated
boating, or the intoxicated snowmobiling law, a court may only count a previous
conviction of the same law, or the applicable refusal law. For example, if a person is

before the court for violating the intoxicated snowmobiling law or the snowmobile
refusal law, the court may count only previous convictions of the intoxicated
snowmobiling law and the snowmobile refusal law as prior convictions. Previous
convictions of the intoxicated operation of an ATV law or of the intoxicated boating
law or of the applicable refusal laws may not be counted. Under this bill, a court must
count previous convictions of any of these intoxicated operation or refusal laws that
occurred within the previous five years when imposing a penalty for a violation of any
of these laws.

The bill makes the provisions of the intoxicated operation of an ATV or UTV, the
intoxicated operation of an OHM, the intoxicated boating, and the intoxicated
snowmobiling laws more consistent. These changes include:

1. Adopting the higher penalties for various violations where the penalties for
violations of the intoxicated operation of an ATV or UTV law, the intoxicated
operation of an OHM law, the intoxicated boating law, the intoxicated snowmobiling
law, and the refusal law conflict.

2. Imposing increased penalties for violating the intoxicated operation of an
OHM law, the intoxicated boating law, or the intoxicated snowmobiling law or
related refusal law if the OHM, motorboat, or snowmobile is operated with a
passenger under 16 years of age. The increased penalty already exists for a violation
of the intoxicated operation of an ATV or UTV law and the ATV or UTV refusal law.

3. Repealing the provisions that imposed increased penalties for operating an
ATV or UTV with an alcohol concentration level that is 0.17 or more. Under current
law, these increased penalties are not imposed for violations of the intoxicated
boating or the intoxicated snowmobiling laws.

The bill provides that when counting the number of convictions within the
previous five years, the previous convictions for intoxicated operation of that same
type of recreational vehicle or the related refusal law that occurred before the
effective date of this bill are counted, but previous convictions for the other three
types of recreational vehicles that occurred before the effective date of this bill are
not counted.

The bill also requires a court to enter an order to suspend the person's privilege
to operate a snowmobile, an ATV, a UTV, an OHM, and a motorboat for a period of
not less than 12 months and not more that 16 months if the court imposes a penalty
for a violation of the intoxicated operation of an ATV or UTV, the intoxicated
operation of an OHM, the intoxicated boating, or the intoxicated snowmobiling law
or the related refusal law. The bill allows the court, as part of the order, to authorize
the person to operate an ATV, UTV, OHM, or snowmobile exclusively on land under
the management and control of the person's immediate family, or to operate a
recreational motorboat, if the court finds that such operation is essential for the
purpose of engaging in an occupation or trade. The bill also provides a forfeiture and
additional six-month period of operating privilege suspension for violating the order
of suspension.

Under the bill, if the person is found guilty of a violation of the intoxicated
operation of an ATV or UTV, the intoxicated operation of an OHM, the intoxicated
boating, or the intoxicated snowmobiling law or the related refusal law and has,

within the previous five years, violated one of these laws, the court is required to
revoke the person's privilege to operate a motor vehicle for not less than six months
and not more than 12 months. Also under the bill, the person may be eligible for an
occupational driver's license at any time during the revocation period. The bill
requires the person whose operating privilege was revoked to pay a $140
reinstatement fee.

Under the bill, if a person has had his or her privilege to operate a motor vehicle
suspended or revoked for a violation of a prohibition against operating a motor
vehicle while intoxicated, the person may not operate a snowmobile, an ATV, a UTV,
an OHM, or a motorboat during the period of that motor vehicle operating privilege
suspension or revocation. The bill also provides a forfeiture and an additional
six-month period of operating privilege suspension for violating the order of
suspension.

Under current law, the sentences of persons who are convicted of certain
second, third, or fourth offenses involving the operation of a motor vehicle while
under the influence of an intoxicant may be reduced if the violator successfully
completes a period of probation that includes alcohol and other drug treatment. A
person may complete a treatment program and receive a reduced period of
imprisonment only once. This bill allows this option to be used for persons convicted
of a violation of the intoxicated operation of an ATV or UTV, the intoxicated operation
of an OHM, the intoxicated boating, or the intoxicated snowmobiling law or the
applicable refusal law.

Because this bill proposes to revoke a person's operating privilege upon
conviction for an offense, the Department of Transportation, as required by law, will
prepare a report to be printed as an appendix to this bill.

For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:

AB873,1 1Section 1. 23.33 (1) (ib) of the statutes is created to read:

AB873,4,62 23.33 (1) (ib) “Intoxicated operating law" means the intoxicated operation of
3an all-terrain or utility terrain vehicle law, the intoxicated operation of an
4off-highway motorcycle law, as defined in s. 23.335 (1) (km), the intoxicated boating
5law, as defined in s. 30.50 (4m), or the intoxicated snowmobiling law, as defined in
6s. 350.01 (9c).

AB873,2 7Section 2. 23.33 (1) (ih) of the statutes is created to read:

AB873,5,1

123.33 (1) (ih) “Legal drinking age" means 21 years of age.

AB873,3 2Section 3. 23.33 (1) (jd) of the statutes is created to read:

AB873,5,83 23.33 (1) (jd) “Public premises" means all premises held out to the public for
4use of a motor vehicle, including highways, all premises provided by employers to
5employees for the use of their motor vehicles, and all premises provided to tenants
6of rental housing in buildings of 4 or more units for the use of their motor vehicles,
7whether such premises are publicly or privately owned and whether or not a fee is
8charged for the use of those premises.

AB873,4 9Section 4. 23.33 (1) (jh) of the statutes is created to read:

AB873,5,1310 23.33 (1) (jh) “Recreational vehicle" means an all-terrain vehicle, a utility
11terrain vehicle, an off-highway motorcycle as defined in s. 23.335 (1) (q), a
12recreational motorboat as defined in s. 30.50 (9m), or a snowmobile, as defined in s.
13340.01 (58a).

AB873,5 14Section 5. 23.33 (1) (jk) of the statutes is created to read:

AB873,5,1715 23.33 (1) (jk) “Recreational vehicle and boating refusal law" means the
16all-terrain or utility terrain vehicle refusal law, the boating refusal law, as defined
17in s. 30.50 (2c), or the snowmobiling refusal law, as defined in s. 350.01 (17m).

AB873,6 18Section 6. 23.33 (1) (jm) of the statutes is renumbered 23.33 (1) (at) and
19amended to read:

AB873,5,2120 23.33 (1) (at) “Refusal All-terrain or utility terrain vehicle refusal law" means
21sub. (4p) (e) or a local ordinance in conformity therewith.

AB873,7 22Section 7. 23.33 (4c) (a) 3. of the statutes is amended to read:

AB873,6,223 23.33 (4c) (a) 3. `Operating with alcohol concentrations at specified levels;
24below legal drinking age 21.' If a A person who has not attained the legal drinking
25age of 21, the person may not engage in the operation of an all-terrain vehicle or

1utility terrain vehicle while he or she has an alcohol concentration of more than 0.0
2but not more less than 0.08.

AB873,8 3Section 8. 23.33 (4c) (a) 4. of the statutes is amended to read:

AB873,6,124 23.33 (4c) (a) 4. `Related charges.' A person may be charged with and a
5prosecutor may proceed upon a complaint based upon a violation of any combination
6of subd. 1., 2., or 2m. for acts arising out of the same incident or occurrence. If the
7person is charged with violating any combination of subd. 1., 2., or 2m., the offenses
8shall be joined. If the person is found guilty of any combination of subd. 1., 2., or 2m.
9for acts arising out of the same incident or occurrence, there shall be a single
10conviction for purposes of sentencing and for purposes of counting convictions under
11sub. (13) (b) 2. and 3. to 5. Subdivisions 1., 2., and 2m. each require proof of a fact
12for conviction which that the others do not require.

AB873,9 13Section 9. 23.33 (4c) (b) 3. of the statutes is amended to read:

AB873,6,2314 23.33 (4c) (b) 3. `Related charges.' A person may be charged with and a
15prosecutor may proceed upon a complaint based upon a violation of any combination
16of subd. 1., 2., or 2m. for acts arising out of the same incident or occurrence. If the
17person is charged with violating any combination of subd. 1., 2., or 2m. in the
18complaint, the crimes shall be joined under s. 971.12. If the person is found guilty
19of any combination of subd. 1., 2., or 2m. for acts arising out of the same incident or
20occurrence, there shall be a single conviction for purposes of sentencing and for
21purposes of counting convictions under sub. (13) (b) 2. and 3. to 5. Subdivisions 1.,
222., and 2m. each require proof of a fact for conviction which that the others do not
23require.

AB873,10 24Section 10. 23.33 (4t) of the statutes is amended to read:

AB873,7,4

123.33 (4t) Report arrest to department. If a law enforcement officer arrests
2a person for a violation of the intoxicated operation of an all-terrain vehicle or utility
3terrain vehicle law or the all-terrain or utility terrain vehicle refusal law, the law
4enforcement officer shall notify the department of the arrest as soon as practicable.

AB873,11 5Section 11. 23.33 (4y) of the statutes is created to read:

AB873,7,166 23.33 (4y) Suspension or revocation of operating privileges. (a) Orders to
7suspend or revoke. 1. If a court imposes a penalty for a violation of the intoxicated
8operation of an all-terrain or utility terrain vehicle law or the all-terrain or utility
9terrain vehicle refusal law, the court shall order the suspension of the person's
10privilege to operate a recreational vehicle for a period of not less than 12 months and
11not more than 16 months. As part of the order, the court may authorize the person
12to operate an all-terrain vehicle or utility terrain vehicle exclusively on land under
13the management and control of the person's immediate family if the court finds that
14such operation is essential for the purpose of engaging in an occupation or trade.
15Whenever a court suspends an operating privilege under this subdivision, the court
16shall notify the department of that action.

AB873,8,317 2. In addition to the order under subd. 1., the court shall also order the
18revocation of the person's privilege to operate a motor vehicle on public premises if
19the person, within 5 years prior to the arrest for the current violation of the
20intoxicated operation of an all-terrain or utility terrain vehicle law or the all-terrain
21or utility terrain vehicle refusal law, violated the intoxicated operating law or the
22recreational vehicle and boating refusal law. The period of revocation shall be not
23less than 6 months and not more than 12 months. Whenever a court revokes an
24operating privilege under this subdivision, the court may take possession of the
25revoked license. If the court takes possession of the revoked license, the court shall

1destroy the license. The court shall forward to the department of transportation the
2record of the conviction and notice of revocation. The person is eligible for an
3occupational license under s. 343.10 at any time.

AB873,8,54 (b) Operating while suspended or revoked. 1. No person may operate a
5recreational vehicle in violation of a suspension order imposed under par. (a) 1.

AB873,8,86 2. No person may operate an all-terrain vehicle or utility terrain vehicle during
7the time that the person's motor vehicle operating privilege is suspended or revoked
8for a conviction counted under s. 343.307 (1).

AB873,12 9Section 12. 23.33 (13) (b) 1. of the statutes is amended to read:

AB873,8,1210 23.33 (13) (b) 1. Except as provided under subds. 2. and 3. to 5., a person who
11violates sub. (4c) (a) 1., 2., or 2m. or (4p) (e) shall forfeit not less than $150 $400 nor
12more than $300 $550.