343.305 Annotation
Sub. (9) (a) requirement that a notice of intent to revoke shall be prepared and served immediately is directory and not mandatory. State v. Moline, 170 W (2d) 531, 489 NW (2d) 667 (Ct. App. 1992).
343.305 Annotation
An accused's request under sub. (5) (a) for his or her own test only requires the arresting agency to make the accused available to obtain the test, not to take an active part in obtaining the test. State v. Vincent, 171 W (2d) 124, 490 NW (2d) 761 (Ct. App. 1992).
343.305 Annotation
Where officer knows the defendant was licensed as a commercial operator and the ensuing revocation revokes all operating privileges, the commercial operator warnings, under sub. (4), must be given. State v. Geraldson, 176 W (2d) 487, 500 NW (2d) 415 (Ct. App. 1993).
343.305 Annotation
Sub. (9) (a) 1. does not require the issuance of a citation before a request is made that the defendant submit to a chemical test. State v. Sutton, 177 W (2d) 709, 503 NW (2d) 326 (Ct. App. 1993).
343.305 Annotation
Overstatement of the potential penalties for refusal to submit to a chemical test is substantial compliance with sub. (4) and not grounds for reversing a revocation for refusal. State v. Sutton, 177 W (2d) 709, 503 NW (2d) 326 (Ct. App. 1993).
343.305 Annotation
There is no error in informing a driver of all warnings under sub. (4), including those applying to only commercial operators and those applying to only noncommercial operators, regardless of the driver's status. Village of Elm Grove v. Landowski, 181 W (2d) 137, 510 NW (2d) 752 (Ct. App. 1993).
343.305 Annotation
Sub. (5) (b) requires a person drawing blood "under the direction of a physician" to have general authorization from the physician rather than a specific order in each case. State v. Penzkofer, 184 W (2d) 262, 516 NW (2d) 774 (Ct. App. 1994).
343.305 Annotation
The state's burden of persuasion at a suppression hearing is significantly greater than at a refusal hearing; consequently a defendant is not precluded from relitigating the issue of probable cause at a suppression hearing. State v. Wille, 185 W (2d) 673 518 NW (2d) 325 (Ct. App. 1994).
343.305 Annotation
Once a suspect has refused a second alternate blood alcohol test, there is no continuing obligation to accommodate future requests for an alternate test. State v. Stary, 187 W (2d) 266, 522 NW (2d) 32 (Ct. App. 1994).
343.305 Annotation
Refusal to submit to a field sobriety test was properly admitted as evidence to determine probable cause for arrest for intoxicated operation of a motor vehicle. State v. Babbit, 188 W (2d) 349, 525 NW (2d) 102 (Ct. App. 1994).
343.305 Annotation
A suspect must be properly informed under the implied consent law before evidence of a refusal may be admitted at a subsequent trial, but the state is not prevented from using the evidence if a revocation hearing is not held. State v. Donner, 192 W (2d) 305, 531 NW (2d) 369 (Ct. App. 1995).
343.305 Annotation
A driver's "subjective confusion" over the right not to take the chemical test is not grounds for challenging the propriety of the warnings given prior to administering the test. There is a 3-part standard to be applied in determining the adequacy of the warnings. County of Ozaukee v. Quelle, 198 W (2d) 269, 542 NW (2d) 196 (Ct. App. 1995).
343.305 Annotation
Criminal prosecution for operating a motor vehicle with a prohibited blood alcohol content subsequent to administrative suspension of a driver's operating privileges does not constitute multiple punishment and therefore does not constitute double jeopardy. State v. McMaster, 198 W (2d) 542, 543 NW (2d) 499 (Ct. App. 1995).
343.305 Annotation
Where 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 law discussed. 62 Atty. Gen. 174.
343.305 Annotation
Method by which a law enforcement agency may provide 2 tests for blood alcohol content under sub. (1), 1985 stats. [now sub. (2)] discussed. The agency is not required to actually own or physically possess the testing devices. 63 Atty. Gen. 119.
343.305 Annotation
This section, as affected by ch. 193, laws of 1977, does not vest in municipal courts the power to conduct hearings to determine the reasonableness of a refusal to submit to chemical tests to determine blood alcohol levels. 67 Atty. Gen. 185.
343.305 Annotation
Under s. 343.305 (1) and (4), 1985 stats., hospital personnel must administer test and report results at request of officer, 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
Law enforcement officer may use physical restraint, subject to constitutional limitations, in order to draw legally justified blood sample. Refusal by health professional to comply with law enforcement officer's authorized request to take blood sample from person whom officer has legally restrained by force constitutes refusal to aid an officer under 946.40.
74 Atty. Gen. 123.
343.305 AnnotationRefusal hearing under this section discussed.
77 Atty. Gen. 4.
343.305 Annotation
Massachusetts implied consent law which mandates suspension of license for refusal to take breath-analysis test did not violate Due Process Clause. Mackey v. Montrym, 443 US 1 (1979).
343.305 Annotation
Admission into evidence of defendant's refusal to submit to blood-alcohol test did not deny right against self-incrimination. South Dakota v. Neville, 459 US 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 or suspension under
s. 343.30 (1q) (b) and to determine the penalty under
s. 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)(d)
(d) Convictions under the law of another jurisdiction that prohibits refusal of chemical testing or use of a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof, or with an excess or specified range of alcohol concentration, or under the influence of any drug to a degree that renders the person incapable of safely driving, 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(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)(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)(d)
(d) Convictions under the law of another jurisdiction that is in substantial conformity with
49 CFR 383.51 (b) (2) (i) or (ii) or both.
343.307(2)(e)
(e) Convictions under the law of another jurisdiction that prohibits refusal of chemical testing or use of a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof, or with an excess or specified range of alcohol concentration, or under the influence of any drug to a degree that renders the person incapable of safely driving, 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.
343.31
343.31
Revocation or suspension of licenses after certain convictions. 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)(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 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 0.1 and which is criminal under
s. 346.63 (6).
343.31(1)(b)
(b) Upon the 2nd or any subsequent 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. This paragraph does not apply to a law of a federally recognized American Indian tribe or band in this state.
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)(e)
(e) 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(1)(f)
(f) Operating a motor vehicle while operating privileges are suspended or revoked if the suspension or revocation was for improperly refusing to take a test under
s. 343.305, violating
s. 346.63 (1) or
(5) or a local ordinance in conformity therewith, or violating
s. 346.63 (2) or
(6),
940.09 (1) or
940.25.
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)(h)
(h) Violation of a restriction on that person's license or a serious traffic violation by the holder of an occupational license.
343.31(1)(i)
(i) Knowingly fleeing or attempting to elude a traffic officer.
343.31(1m)
(1m) The department shall revoke or suspend a person's operating privilege upon receiving a record of conviction showing that the person has been convicted under a law of a federally recognized American Indian tribe or band in this state which is in conformity with
s. 346.63 (1).
343.31(2)
(2) The department shall revoke or suspend, respectively, 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 or suspension under this section or under
s. 343.30 (1q). Such offenses shall include violation of any law of another jurisdiction that prohibits use of a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof, or with an excess or specified range of alcohol concentration, or under the influence of any drug to a degree that renders the person incapable of safely driving, 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 or suspend, respectively, the privilege of the nonresident to operate a motor vehicle in this state. Such 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.
343.31(2m)
(2m) The department may revoke the operating privilege of any resident upon receiving notice of the conviction of that person of 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 revocation of the person's operating privilege under
s. 343.30 (1g). Upon receiving similar notice with respect to a nonresident, the department may revoke the privilege of the nonresident to operate a motor vehicle in this state. The 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 revocation under this subsection shall be for any period not exceeding 6 months.
343.31(3)(a)(a) Except as otherwise provided in this subsection or
sub. (2m), all revocations or suspensions under this section shall be for a period of one year.
343.31(3)(b)
(b) If the suspension 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 suspension 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. The department shall suspend or 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 suspend the person's operating privilege for not less than 6 months nor more than 9 months. If an Indian tribal court in this state suspends 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 suspension. 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 suspensions, revocations and convictions within a 5-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, 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 suspensions, revocations and convictions within a 10-year period 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 the first 90 days of the revocation period, 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 suspension or revocation periods under
subd. 2.,
3. or
4. for the conviction are doubled.
343.31(3)(bm)5.
5. The 5-year or 10-year 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 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 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 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).
343.31(3)(d)3.
3. If the offense results in great bodily harm to another, for 2 years.
343.31(3)(d)4.
4. If the offense results in the death of another, for 5 years.
343.31(3)(e)
(e) Any person convicted under
s. 346.63 (2) shall have his or her operating privilege revoked for not less than one year nor more than 2 years. If there was a minor passenger under 16 years of age in the motor vehicle at the time of the violation that gave rise to the conviction under
s. 346.63 (2), the minimum and maximum revocation periods are doubled.
343.31(3)(f)
(f) Any person convicted under
s. 940.25 shall have his or her operating privilege revoked for 2 years. If there was a minor passenger under 16 years of age in the motor vehicle at the time of the violation that gave rise to the conviction under
s. 940.25, the revocation period is 4 years.
343.31(3)(g)
(g) Any person convicted for operating a motor vehicle while operating privileges are suspended or revoked shall have his or her operating privilege revoked for 6 months if the suspension or revocation was for improperly refusing to take a test under
s. 343.305, violating
s. 346.63 (1) or
(5) or a local ordinance in conformity therewith, or violating
s. 346.63 (2) or
(6),
940.09 (1) or
940.25.
343.31(3)(h)
(h) Any person subject to
s. 343.10 (8) shall have his or her operating privilege revoked for 6 months.
343.31(3)(i)
(i) If a person is convicted for a violation of
s. 346.67 where the accident involved great bodily harm, the period of revocation is 2 years.
343.31(3)(j)
(j) If a person is convicted for a violation of
s. 346.67 where the accident involved death, the period of revocation is 5 years.
343.31(3m)(a)(a) Any person who has his or her operating privilege revoked under
sub. (3) (c) or
(f) is eligible for an occupational license under
s. 343.10 after the first 120 days of the revocation period.
343.31(3m)(b)
(b) Any person who has his or her operating privilege revoked under
sub. (3) (e) is eligible for an occupational license under
s. 343.10 after the first 60 days of the revocation period.
343.31(4)
(4) Any person denied an operator's license under
s. 343.06 (1) (i) or whose operator's license was revoked under s.
343.31 (1) (i), 1961 stats., before October 9, 1963, may be granted the license or have his or her operating privileges reinstated upon recommendation of the department of corrections or other responsible agency having supervision of the applicant, and approval of the court in which the applicant was convicted of the offense upon which the revocation or suspension was based.
