RESOURCE CENTER REPORT

Number 98-1

July 1998

University of Wisconsin Law School

Resource Center on Impaired Driving

RECENT LEGISLATIVE DEVELOPMENTS IN TRAFFIC AND IMPAIRED DRIVING LAW

Maureen D. Boyle, Assistant Director

Steve C. Hurley, Research Assistant

Introduction

This report documents a few keylegislative updates in traffic andimpaired driving law occurringduring the 1997-98 legislativesession which are of greatimport to law enforcement,prosecutors and others. Outlinedbelow are summaries of thoseacts, and in some instances,suggestions or comments on howlaw enforcement should respondto those changes. This list is notintended as a comprehensivereview of all 1997-98 traffic-related legislative actions,however, any questions abouttraffic legislation not describedbelow may also be directed tothe Resource Center.

New Informing the AccusedForm Must Be Used StartingAugust 1, 1998!

1997 Wisconsin Act 107substantially revised section343.305(4), Wis. Stats., which isthe statutory basis for theInforming the Accused form. The new form is not onlysimpler for officers to read, ithas been promoted as easier forpersons under the influence tounderstand. Plain and simplelanguage explicitly informs thesubject that he or she has beenarrested for OWI, and that one ormore samples of breath, blood,or urine are being requested. The form explains theconsequences of both a refusaland/or positive test results, andmakes clear that after taking therequired tests, the alternate testprovided by the law enforcementagency can be administered freeof charge, or the subject canarrange an independent test attheir own expense. Finally,consistent with recent case law,the form eliminates the need fora separate section regardingcommercial drivers and simplynotifies everyone thatcommercial drivers are subjectto additional consequences ifthey refuse or have a positivetest result.

1997 Wisconsin Act 107 takeseffect August 1, 1998. Therefore, on July 31, 1998, lawenforcement agencies MUSTDESTROY all copies of the oldinforming the accused form! Because the new statute requiresthat specific statutory languagebe read to the accused, readingan old form will not in any waycomply with that requirement. The end result is that the testresults will NOT be affordedautomatic admissibility if theofficer uses an old form!

The new form, a copy of whichis included in this publication,eliminates the need for the lawenforcement officer to make adecision as to whether to readonly Section A, or read bothSection A and B. The simplifiedlanguage should also act todiscourage officers from offeringadditional information orinterpretation. Officers shouldread the form and only theform. If a subject has a questionregarding something he or shewas read, officers should readthe appropriate paragraph again. Rest assured that the newlanguage was created by acommittee which included notonly critics of the old form, butone of the old form's mainchallengers. This group workedlong and hard to write the newlanguage, and therefore, theform represents all theinformation a law enforcementofficer is required to give. Officers should not feelcompelled to supplement thisinformation in any way.

All police agencies should havereceived a letter along with astarter packet of the new formsfrom the State Patrol ChemicalTest Section regarding thechangeover. The new informingthe accused forms are availablenow from DOT stores. Ask forform number SP4197 898. Order your supply today!

Prison a Sentencing OptionFor OWI5th and Higher

Effective January 1, 1999,1997 Wisconsin Act 237 willchange the way prior OWI, PACor implied consent convictionsare counted under Sec.343.307(1). The Act increasesthe period in which a priorconviction is counted for asecond offense from five to tenyears. A driver who has morethan one prior conviction willhave a permanent record of allconvictions for the purpose ofcounting under Sec. 343.307(1),meaning that all previousconvictions OWI, PAC orimplied consent, whether in orout of Wisconsin, which showup on a person's driver recordshould be counted as priorswhen determining what offenseto charge for violationsoccurring on or after January 1,1999.

For example, suppose Joe Publicis arrested for OWI on January3, 1999. Upon checking hisrecord, you find that he has oneprior OWI conviction for anoffense committed on January 4,1989. Mr. Public would becharged with OWI secondoffense because he has one priorconviction within ten years. Ifyou find more than one priorOWI conviction, then you neednot worry about the time period-- simply add up all convictionswhich appear on the driverrecord, regardless of whether ornot any of the priors occurredwithin 10 years of the presentviolation date. (See Exhibit 1)

Additionally, 1997 WisconsinAct 237 also increases themaximum prison term for a 5^th orsubsequent OWI convictionfrom one year to five years.(See Sec. 346.65(2)(e)). Theincrease makes a 5^th orsubsequent OWI conviction afelony and as such a preliminaryhearing will be required. (SeeSec. 971.02). The penalty isstill doubled under Sec.346.65(2)(f) where there is aminor under the age of 16 yearsin the car at the time of theviolation. The Act makes noprovisions for probation,therefore, the sentencing courtmust either sentence thedefendant to one year or lesscounty jail or to the WisconsinState Prison System if the courtdetermines a higher sentence iswarranted. The penalty increasedoes not take effect until January1, 1999.

OAR/OWS No LongerConsidered Major TrafficOffenses for HTO Status

1997 Wisconsin Act 84represents the legislature'scomprehensive overhaul ofWisconsin's license revocationand suspension system. Although the major portion ofthe act does not take effect untilMay 1, 2000, there is a sectionof 1997 Wisconsin Act 84 whichtakes effect on August 1, 1998. Beginning on August 1, 1998,OAR/OWS offenses will nolonger be classified as majortraffic violations for purposes ofdetermining Habitual TrafficOffender status. Officers shouldalso be aware that OAR/OWSwill now result in three (3)demerit points instead of six (6)and should issue ticketsaccordingly.

This change will result in anumber of HTO's falling off theroles as their status is to berecalculated based under the newlaw. Drivers whose licenseswere revoked as habitual trafficoffenders can apply to have theirstatus recalculated after August1, 1998, therefore, be careful tocheck for any recent changes ina driver's HTO status. Prosecutors may also want torefer those defendants to theDOT whose driver recordsindicate they are eligible forrecalculation, e.g., where HTOrevocation is based solely onprior OAR or OWS violations,as part of your plea negotiations.

OWI Causing Death or GreatBodily Harm Extended to"Unborn Child"

1997 Wisconsin Act 295,effective July 1, 1998, createsthe new offenses of causingdeath or great bodily harm tounborn children and doubles thepenalties if an unborn child is inthe vehicle at the time the drivercommitted the offense ofcausing death or great bodilyharm by intoxicated use. Similarto the "minor passenger under 16years" penalty enhancer,applicable fines, periods ofrevocation and imprisonment aredoubled if there is an unbornchild in the motor vehicle at thetime of the violation. This"unborn child enhancer" doesnot apply to simple OWI,however, and one assumes thatis because without death orinjury to the pregnant womanand/or unborn child, it may bedifficult in many instances toknow whether or not there wasin fact an unborn child in thevehicle at the time of theviolation.

"Unborn child" is defined insection 939.75(1) as anyindividual of the human speciesfrom fertilization until birth thatis gestating inside a woman. Thelaw does not apply to a pregnantwoman who causes death orgreat bodily harm to her ownunborn child by the intoxicateduse of a motor vehicle. Thepenalty for causing death to anunborn child is a maximum of 40years imprisonment (a Class BFelony), although if the unbornchild was in the vehicle at thetime of the violation the penaltywould be increased to amaximum of 80 years. Forexample, an intoxicated driverwill face 40 years imprisonmentif s/he struck a pregnant femalepedestrian killing the unbornchild, but not the mother. If themother was also killed, then thedriver will face two counts ofhomicide by intoxicated use anda maximum of 80 years prison. However, if a pregnant womanrides in the vehicle driven by theintoxicated driver and both sheand the unborn child are killed,then the driver will face 160years in imprisonment using thepenalty enhancer. This is thesame result as that whichoccurred if there was minorchild in the vehicle at the time ofthe crash, although it may bemore difficult to determine ifthere was in fact an "unbornchild" in the vehicle at the timeof the crash. Obviously, medicalrecords will be required and lawenforcement should be sure toobtain an authorization to releaserecords if the mother is capableof providing such, or if that isnot possible, then obtain therecords with a search warrant orsubpoena for documents.

OTHER RECENTLYENACTED LEGISLATION

Underage Drinking Law

Effective July 16, 1998, 1997Wisconsin Act 337 provides fora new statutory subsection (125.07(1)(b)(6)) which clarifiesthat only one penalty may beimposed for each violation of theprohibition on providing alcoholto an underage person. Forexample, law enforcementcannot charge both the provider(i.e., a bartender) and thelicense-holder who employs theprovider for providing alcohol toa minor.

Penalty for OWI HomicideIncreased to 40 Years

For offenses occurring on orafter July 4, 1998, the maximumprison term for Homicide byIntoxicated Use pursuant toSection 940.09(1), Wis. Stats., isincreased from 10 to 40 years(Class C to Class B). Thispenalty is equal to that for firstdegree reckless homicide andmakes second degree recklesshomicide as well as homicide bynegligent operation of vehiclelesser included offenses.

Conclusion

This brief list of updates isintended to alert you to recentlegislative changes in impaireddriving and related traffic laws.Of particular importance is thelegislative revisionimplementing the new Informingthe Accused form which takeseffect August 1, 1998. A copyof the new form has beenincluded in this publication. Foradditional information, or if youhave questions about othertraffic legislation, please contactthe Resource Center on ImpairedDriving at 1-800-862-1048 orcontact Maureen Boyle directlyat 608-262-6882. Finally, pleasenote that the opinions expressedregarding law enforcementresponses to these legislativechanges are those of the authorsand do not necessarily representthose of the Department ofTransportation or the Universityof Wisconsin Law School.

The Resource Center invitesyour comments, inquiries, andsuggestions. Call toll-free 1(800) 862-1048 or in Madison265-3411.

The Resource Center on ImpairedDriving

The Resource Center on ImpairedDriving represents the combinedefforts of the Department ofTransportation and the University ofWisconsin Law School. TheResource Center is designed toprovide a wide range of alcoholrelated data and legal information onimpaired driving issues to judges,prosecutors, defense attorneys, lawenforcement agencies, educators, andcitizens. In addition, the ResourceCenter plays an integral role ineducation and training programs ondevelopments in the drunk drivingfield.

The Department of Transportation(DOT) initially proposed the conceptof a clearinghouse for information onoperating while intoxicated and relatedissues in developing its AlcoholTraffic Safety Plan. The plan, fundedthrough federal highway safety grantmonies and implemented by the DOT,identified public information andeducation as importantcountermeasures to the problem ofimpaired driving. A similar idea wasalso proposed in the DOT Task ForceReport on Repeat Offenders (1991).

The Resource Center on ImpairedDriving is located in the law schoolOffice of Continuing Legal Educationand Outreach. The law schoolprovides a natural setting because ofsubstantial work done in the past onissues related to impaired driving. The Office of Continuing LegalEducation and Outreach has hadextensive experience in working withother state agencies, trial judges, andlawyers. The combined expertise,experience, and objectivity willenhance the Resource Center's abilityto develop effective responses to theproblem of the impaired driver.

From the point of view of the lawschool and the university, theResource Center on Impaired Drivingprovides an opportunity to be ofservice to the state in the tradition of"The Wisconsin Idea." Specifically,the Resource Center creates apartnership between state governmentand the university in addressing anissue of statewide importance. TheResource Center's initial service-oriented activities will provide aresearch base that will be instrumentalin the development of new policyinitiatives on impaired driving issues.

The Resource Center invites yourcomments, inquiries, and suggestions. Call toll free 1 (800) 862-1048 or inMadison 265-3411. The ResourceCenter's new address is:

UW Law School Resource Center onImpaired Driving

975 Bascom Mall, Room 2348

Madison, WI 53706-1399

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