Resource Center on Impaired Driving

http://www.legis.state.wi.us/

OAR: Civil or Criminal???

2009 Wisconsin Act 28 (Budget Act) has amended the basis for what makes an OAR a crime. Operating after revocation is only a crime if the revocation resulted from an OWI or a chemical test refusal.

Section 343.44(2)(as) now states, “Any person who violates sub. (1)(b) after July 27, 2005, shall forfeit not more than $2,500, except that if the revocation identified under sub. (1)(b) resulted from an offense that may be counted under s. 343.307 (2), the penalty under par. (b) shall apply.”

Effective date: Applies to offenses committed on or after July 1, 2009.

Under previous law: 1st offense OAR was either civil or criminal, depending on the reason a person had a revoked status.

As of July 1, 2009, ALL OARs are either civil or criminal, depending on the reason a person has a revoked status. If the revoked status results from an OWI type conviction counted under s. 343.307(2), the OAR is criminal. If the status is revoked for another reason, the OAR is civil.

NOTE: If a revoked driver causes property damage, injury, great bodily harm or death, the penalties under s. 343.44(2)(e) to (h) apply. No changes were made to this section of the statute

Wisconsin has adopted a primary safety belt law, effective July 1, 2009. Law enforcement can now stop and ticket vehicles in which the driver or a passenger is noticed without a seat belt regardless if the officer observes another traffic or vehicle equipment violation. Previously, officers would have had to stop motorist for another vehicle or traffic violation and then could issue a seat belt citation.

Currently, Wisconsin’s seat belt use rate is approximately 74 percent, which is one of the lowest in the nation. Studies conducted by the National Highway Safety Administration (NHTSA) found that when states changed to primary enforcement, the safety belt use rate increased approximately 10 percent.

A change to primary enforcement does not increase the cost of a safety belt citation in Wisconsin, which is $10 and does not include a point assessment on a driver’s license. By enacting a primary enforcement seat belt law, Wisconsin is now eligible to receive $15.2 million in federal funding.

For more information or to view the entire article see: http://www.dot.wisconsin.gov/opencms/export/nr/modules/news/news_1424.html_786229440.html

Pending Legislation

The 2009-2010 Legislative Session has already proven to be an active one for OWI and alcohol-related legislation. Below is a summary of the most pertinent OWI and alcohol-related bills that have been proposed so far this session (6/15/09).

Assembly Bill 130 –
--A person convicted of an OWI-related offense must be assessed any costs associated with acquiring a blood sample and administering a blood test or analysis that were charged to or paid by law enforcement agency.
--The bill requires law enforcement to inform each person from whom the officer wishes to obtain a blood sample that the person will be responsible for the costs of testing the blood if the person is convicted of any OWI-related offense.
--Exception: The court may not impose on the defendant any cost for an alternative test the law enforcement agency provides free of charge as described in s. 343.305(4), Stats. (per Assembly Substitute Amendment 1)

Assembly Bill 283 –
--Mandates IIDs on first offense with AC of .15 or higher or on all 2nd offenses
--Makes PAC .02 for 2 years after a person has committed an OWI
--Makes 4th offense a felony if it occurs within 5 years of a previous offense
--Requires defendants serve a minimum of 2 yrs in prison on 4th, 5th and 6th OWI offenses
--Requires defendants serve a minimum of 3 yrs in prison on 7th, 8th and 9th OWI offenses
--Serve a minimum of 4 yrs in prison on 10th & subsequent OWI offenses
--Allows probation on 2nd or 3rd OWI offenses (expands the current provision available on 4th offense)

Note: Public hearing held in West Allis on June 2, 2009. ("Drunken driving bill wins backing," by Gina Barton, posted June 3, 2009.) http://www.jsonline.com/news/statepolitics/46772252.html

Assembly Bill 287 –
--Increases the tax rate on fermented malt beverages from $2 per barrel to $10 per barrel. In addition, an amount of the taxes collected on fermented malt beverages equal to $2 per barrel will be used by OJA in the Dept. of Admin. to provide grants to counties and municipalities to reduce crimes related to alcohol use by employing additional law enforcement officers and obtaining equipment and training, and an amount of the taxes equal to $4 per barrel will be used for community aids related to alcohol and drug abuse treatment services.
--An amount of the taxes equal to $2 per barrel will be used for grants for substance abuse treatment and prevention programs.

Senate Bill 209 –
(Same summary as above)

See uwhealth.org/aware for discussion of beer tax proposal and other legislative proposals.

Assembly Bill 17 – Ignition Interlock Devices
02/03/09: Introduced by Representatives Staskunas, Kaufert, and 19 other representatives. Co-sponsored by Senator Plale (and 19 other senators). Referred to Committee; Hearing held on 3/3/09.

Key Components:
• Eliminates sentencing options of vehicle immobilization and seizure/forfeiture for repeat OWI offenders. Requires court to order operating privilege of Class D vehicles be restricted to vehicles equipped with ignition interlock devices (IID) for one-year minimum on conviction for 1st offense with BAC of 0.15 or higher and for all 2nd offenses. Requires all vehicles owned by the offender to be equipped with an IID.
• Establishes a $50 surcharge to be paid upon installation and requires offender to assume the full cost of installing and monitoring all devices. If offender fails to pay the surcharge or fails to have the IID installed, he or she may not obtain an occupational license.
• A court may order that a person who removes, disconnects, tampers with, or otherwise circumvents the operation of an IID to be imprisoned for not more than six months for a first offense.
• A person who fails to have an IID installed as ordered by the court would be subject to the same penalties as a person who removes, disconnects, tampers with, or otherwise circumvents the operation the operation of an IID.

Assembly Bill 50
2/17/09: Introduced by Representatives Schneider and Vruwink, co-sponsored by Senator Lasee. Referred to Committee.

Key Components:
• Shortens the retention period for OWI convictions on a driver record from lifetime to ten years (except for CDL holders).
• Requires DMV to purge a person’s record of conviction, suspension or revocation that is related to OWI after ten years, unless the offense was committed by a person with a commercial driver license or who was operating a commercial motor vehicle at the time of the offense.

Assembly Bill 79
2/24/09: Introduced by Representatives Kleefisch, Ziegelbauer, Davis, Kerkman and 11 other representatives; co-sponsored by Senators Carpenter, Darling and Leibham. Referred to Committee.

Key Components:
• Makes 3rd offense OWI a Class H felony and 4th offense OWI a Class G felony.
• Increases the penalties for other repeat OWI offenses: 5th & 6th offense OWI becomes a Class F felony; 7th-9th offense becomes a Class E felony; 10th offense becomes a Class D felony.
• Prohibits the release of a person convicted of a 3rd offense OWI before the person begins to serve any period of incarceration imposed for the OWI.
• Grants courts the authority to deny pretrial release to a person who is charged with certain felony OWIs if the person has a previous conviction for a felony OWI.

Assembly Bill 130
3/9/09: Introduced by Gundrum, Petersen, Ziegelbauer, and 19 other representatives; co-sponsored by Senators Kedzie, Lazich, Plale, Darling and Schultz. Referred to Committee.

Key Components:
• Requires that upon conviction for an OWI-related offense, the offender must be assessed any costs associated with acquiring and administering a blood test that were charged to or paid by the law enforcement agency.

Assembly Bill 151
3/17/09: Introduced by Representatives Zepnick, Hixson and Bies; co-sponsored by Senator Sullivan. Referred to Committee.

Key Components:
• Modifies penalties for all OWI offenses, including imposing mandatory imprisonment for first offenses if offender has BAC greater than or equal to 0.12.
• Requires that occupational licenses restrict person to operating a vehicle equipped with an IID upon conviction of first offense OWI.
• Eliminates the option of immobilization of a motor vehicle upon conviction for OWI.
• Allows court to restrict the offender’s operating privilege to driving a vehicle equipped with an IID upon conviction for first offense if the offender had a BAC of 0.12 or more.
• Requires court to restrict the offender’s operating privilege to driving a vehicle equipped with an IID upon conviction for second and subsequent offense.
• Requires DOT to publish statistical information about the number of circumstances of traffic accidents at least monthly. Requires that the published information include the number of accidents in which the consumption of intoxicants or controlled substances were contributing factors and the amount of intoxicants or controlled substances that were in the blood of the drivers involved in those accidents.

Assembly Bill 155
3/19/09: Introduced by Representatives Bies, Kerkman, Mursau, Ott, Townsend and Zepnick; co-sponsored by Sen. Lehman. Referred to Committee.

Key Components:
• Creates penalties for persons who unlawfully provide, on licensed premises, alcohol beverages to underage persons who are 18, 19, or 20 years of age, if the provider knows or should know that the person is underage and the underage person suffers great bodily harm or death as a result of consuming the alcohol beverages.
• Provider is subject to a fine of not more than $10,000 or a term of imprisonment of up to nine months in the county jail or both if the person suffers great bodily harm and must be fined not more than $10,000 or imprisoned for not more than one year in the county jail or both if the underage person dies.

Assembly Bill 156
3/19/09: Introduced by Representatives Bies, Mursa, Ott and Zepnick. Referred to Committee.

Key Components:
• Modifies penalties for all OWI offenses, including imposing mandatory imprisonment for first offenses.
• Adds provision related to counties seeking reimbursement by prisoners for confinement. Specifically, if a county seeks reimbursement from person confined for OWI violation, DOT may not reinstate operating privilege until the county notifies DOT that the person has reimbursed the county.
• Shortens the retention period for OWI convictions on a driver record from lifetime to ten years, unless the prior convictions are for OWI-related offenses that resulted in injury or death.

Senate Bill 30
2-03-09: Introduced by Senator Robson and Kreitlow (co-sponsored by 12 representatives). Referred to Committee.

Key Components:
• Establishes 18 as minimum age for underage person to possess, consume or be provided alcohol beverages on licensed premises if accompanied by parent, guardian, or spouse who has attained legal drinking age.
• An underage person of any age may still enter or be on licensed premises if accompanied by a parent, guardian, or spouse who has attained the legal drinking age.

Senate Bill 32
02-03-09: Introduced by Senators Kedzie and Schultz, co-sponsored by Representative Smith (and five other representatives). Referred to Committee.

Key Components:
• Amends the definition of prohibited alcohol concentration in s. 340.01(46m) (a) and (c), lowering the PAC for second and third offenders from .08 to .02.

Senate Bill 33
02-03-09: Introduced by Senator Kedzie, Leibham and Lasee and co-sponsored by eleven representatives. Referred to Committee.

Key Components:
• Prohibits a person from purchasing or leasing a motor vehicle while their operating privilege is revoked or suspended due to prior OWI convictions, unless the person holds a valid occupational license.
• A person who purchases or leases a motor vehicle in violation of the prohibition is guilty of a Class I felony.

Senate Bill 34
02-03-09: Introduced by Senator Kedzie, Olsen and Cowles and co-sponsored by nine representatives. Referred to
Committee

Key Components:
• Removes the immediate eligibility for an occupational license for people suspended or revoked for the following reasons:
- An administrative suspension after a chemical test indicates the presence of a restricted controlled substance
or prohibited alcohol concentration
- Conviction of first offense OWI
- Underage absolute sobriety violation
• The minimum wait time for eligibility for an occupational license for persons suspended or revoked for one of the above reasons is increased from 0 to 15 days.

Senate Bill 66
02-18-09: Introduced by Senators Sullivan, Plale, Lehman (and ten others) and co-sponsored by Representative Zepnick (and four other representatives). Referred to Committee.

Key Components:
IID Provisions:
• Requires courts to order the installation of an Ignition Interlock Device on a person’s vehicle upon a third OWI conviction or upon a second OWI conviction if the person had an alcohol concentration of 0.16 or higher.
• If an IID is ordered, the court must determine the income of the violator, and if the violator’s income is less than the income limit for the Wisconsin Works program, the court must reduce the amount of the fine imposed by the amount necessary to pay for the installation and maintenance of the IID.
• Prohibits the company that equips a motor vehicle with an IID from removing the device or terminating the contract for the maintenance of the device during the period that the court ordered without first receiving the court’s permission.
Increased Penalty Provisions:
• Makes third offense and fourth offense OWI Class I felonies.
• Eliminates the .08-.099 first offense PAC loophole, so that first offenders with a PAC of .08-.099 are subject to the same penalties as other offenders convicted of first offense OWI.
• Expands Winnebago County Probation Pilot Program so that it is an option for other counties.

Recently Enacted Legislation

Below is a brief summary of recently enacted legislation pertinent to traffic safety. The acts are arranged chronologically according to the date of enactment. For further information, or to view the acts in their entirety, go to http://www.legis.state.wi.us

Note: Any legislative changes that affect penalties, surcharges, etc., can be found in the Bond Book online.

Full text of the Bond Book: www.wicourts.gov/about/pubs/index.htm

2007 Wisconsin Act 111 Read the Act

This Act amends the law relating to the penalty imposed on repeat drunken driving offenders. The Act creates a higher penalty for 7th and subsequent OWI offenses. It also increases the OWI surcharge from $355 to $365, which represents an increase to the county of conviction, the State, and the Safe-Ride Program.

The statutes are amended as follows:

Sec. 346.65(2)(am)5:
5th and 6th Offenses= Class H Felony
Fine not less than $600 nor more than $10,000, imprisonment for not less than 6 months nor more than 6 years, or both.

Sec. 346.65(2)(am)6:
7th – 9th Offenses = Class G Felony
Fine not to exceed $25,000, imprisonment not to exceed 10 years, or both.

Sec. 346.65(2)(am)7:
10th and subsequent offenses = Class F Felony
Fine not to exceed $25,000, imprisonment not to exceed 12 years and 6 months, or both.

Note: Under Sec. 346.65(2c), the time period shall be measured from the dates of the refusals or violations that resulted in the revocation or conviction. Effective date: April 2, 2008

2005 Wisconsin Act 411 Read the Act

This act creates s. 346.675, which imposes liability upon the owner of a vehicle operated in the commission of a failure-to-stop violation under s. 346.67(1), 346.68 or 346.69. Under this act, if within 72 hours of receiving a report from a person who observed a failure-to-stop violation, an officer investigates the violation, verifies certain information, and determines there is probable cause to believe that a violation has occurred, he or she may prepare a uniform traffic citation and serve it upon the owner of the vehicle being operated in the commission of the violation. An owner has a defense to liability if: (1) a report that the vehicle was stolen was given to an officer before the violation occurred or within a reasonable time after the violation occurred; or (2) the owner provides an officer with the name and address of the person operating the vehicle at the time of the violation and sufficient information to determine that probable cause does not exist to believe that the owner was operating the vehicle at the time of the violation. An owner may also avoid liability if the vehicle operator has been convicted of the failure-to-stop violation. (Lessors and dealers of vehicles are provided similar defenses under this act.) A vehicle owner found liable may be required to forfeit not more than $100 for striking an unattended vehicle or property and not more than $1,000 for striking a person or occupied vehicle. Effective date: June 3, 2006.

2005 Wisconsin Act 412 Read the Act

This act creates s. 343.05(5)(b)3, which provides penalties applicable to people who cause property damage, injury, or death while operating a vehicle without a valid driver’s license or after suspension, revocation or cancellation of an operating privilege. Under this act, a person who operates a motor vehicle knowingly without a valid license or knowingly with a license that has been revoked, suspended, or canceled, and causes damage to another’s property is subject to a $1,000 forfeiture. If a person causes injury to another person, the forfeiture amount is increased to $5,000. Finally, if a person causes great bodily harm or death to another person, he or she is guilty of a Class A misdemeanor. This act applies to violations that occur on or after June 3, 2006.

2005 Wisconsin Act 413 Read the Act

This act creates Wis. Stat. § 343.305(3)(ar), which provides that if a person is the operator of a vehicle that is involved in an accident that causes death or great bodily harm to another person, and an officer detects any presence of alcohol, a controlled substance, a controlled substance analog or other drug, or a combination thereof, the officer may request the operator to provide one or more samples of his or her breath, blood, or urine, for the purpose of determining the presence or quantity of any of the above-named substances. If a person refuses to take a test, he or she may be arrested under s. 343.305(3)(a) for a violation of s. 343.305(3)(ar). Effective date: June 3, 2006.

2005 Wisconsin Act 332 Read the Act

This act amends the law relating to discovery in implied consent cases and in certain prosecutions for alcohol beverage violations. Specifically, the act creates s. 125.14(6)(b), which prohibits either party’s use of pretrial discovery in refusal hearings and in any prosecution for a violation of ch. 125, Stats. that may result in a forfeiture. The statute provides an exception if defendant moves within 30 days after the initial appearance in person or by an attorney and shows cause therefore, the court may order the defendant be allowed to inspect documents, including lists of names and addresses of witnesses, if available, and to test any devices (under conditions prescribed by the court) used to determine whether a violation has been committed. This act applies to violations committed or refusals occurring on or after April 29, 2006.

2005 Wisconsin Act 294 Read the Act

This act changes the penalty for persons who violate operating restrictions under an instruction permit (s. 343.07(7)) or a probationary license (s. 343.085(6)). Under this act, a person who violates the operating restrictions of a probationary license or instruction permit must forfeit $50 for a first offense and not less than $50 nor more than $100 for each subsequent offense. In addition, DOT must provide notice of the conviction to any adult sponsor of the person. This act applies to violations committed on or after August 1, 2006.

2005 Wisconsin Act 317 Read the Act

This act increases the forfeiture amount for absolute sobriety violations from $10 to $200 under s. 346.65(2q). If a minor under the age of 16 is in the vehicle at the time of the offense, the forfeiture amount is increased from $20 to $400. While the period of license suspension remains the same, DOT is now required to assess four demerit points for each violation under s. 343.32(2)(bj). Effective date: April 21, 2006.

2005 Wisconsin Act 190 Read the Act

This act grants exclusive jurisdiction to municipal courts in proceedings against juveniles 12 years of age or over, but under the age of 16, for municipal traffic ordinance violations. This act applies to violations of municipal ordinances that occurred on or after April 7, 2006.

2005 Wisconsin Act 193 Read the Act

This act renumbers s. 347.385 and amends it as s. 347.385 to allow authorized emergency vehicles to be equipped and operated with lamps designed and used with any other transmitter designed and used to activate emergency preemption devices. These are devices on a traffic control signal that permit an approaching vehicle to alter the normal sequence of the signal to provide or maintain a green light for an emergency vehicle. Under this act, a person is prohibited from operating a motor vehicle, other than an authorized emergency vehicle, that is equipped with a transmitter that emits a signal for the purpose of activating an emergency preemption device. A person convicted of such an offense is subject to a fine not to exceed $10,000 or imprisonment for not more than one year, or both. The act also prohibits the use of a transmitter in an authorized emergency vehicle except under specified emergency circumstances. Anyone convicted of this offense is punishable by a forfeiture of not less than $10 nor more than $200. Effective date: April 7, 2006.

2005 Wisconsin Act 106 Read the Act

Under this act, s. 347.48(4)(am) is amended to require any child between the ages of 4 and 8 to be secured in a booster seat while traveling in a motor vehicle. Children who weigh more than 80 pounds and are more than 4-feet 9-inches tall are exempt from this requirement. Children who cannot be placed in a booster seat because of a physical or medical condition or body size may also be exempt. In addition, the act allows drivers to be cited for having unbelted passengers of any age in their vehicle under s. 347.48(2m). While the effective date of this act was June 1, 2006, there is a 6-month written warning grace period for any violations.

2005 Wisconsin Act 25 (effective July 27, 2005) Read the Act

The new law relating to first offense OAR creates a new section, s. 343.44 (2)(as), Stats., that reduces the offense for OAR from a criminal to a civil offense, unless: (a) the individual had been convicted of operating after revocation within the preceding five-year period; or (b) the license revocation resulted from an offense of operating under the influence of an intoxicant or other drug, or of operating a commercial motor vehicle with an alcohol concentration between 0.04% and 0.08%. The penalty for a civil offense under this new act is a forfeiture of not more than $250.00. The changes first apply to violations occurring after the effective date of the bill, July 27, 2005.

2005 Wisconsin Act 14 Read the Act