AB356: Bill Text

LRB-3657/1

EHS:ahe

2019 - 2020 LEGISLATURE

2019 Assembly BILL 356

August 12, 2019 - Introduced by Representatives Spiros, Horlacher, James, Kulp, L. Myers, Ramthun, Stubbs and Tusler, cosponsored by Senators Jacque and Bewley. Referred to Committee on Judiciary.

AB356,2,11 An Act to repeal 23.33 (13) (br); to renumber 30.80 (6) (c) and 350.11 (3) (a) 4.; to renumber and amend 23.33 (1) (jm), 23.33 (13) (b) 4., 23.33 (13) (d), 23.335 (1) (zf), 23.335 (23) (c) 4., 23.335 (23) (g), 30.50 (9x), 350.01 (10r) and 350.11 (3) (c); to amend 23.33 (4c) (a) 3., 23.33 (4c) (a) 4., 23.33 (4c) (b) 3., 23.33 (4t), 23.33 (13) (b) 1., 23.33 (13) (b) 2., 23.33 (13) (b) 3., 23.33 (13) (bg), 23.33 (13) (cm), 23.33 (13) (dm), 23.335 (12) (a) 3., 23.335 (12) (a) 4., 23.335 (12) (b) 3., 23.335 (12) (j), 23.335 (23) (c) 1., 23.335 (23) (c) 2., 23.335 (23) (c) 3., 23.335 (23) (h), 30.681 (1) (bn), 30.681 (1) (c), 30.681 (2) (c), 30.681 (2) (d) 1. a., 30.686, 30.74 (1) (bn), 30.80 (6) (a) 1., 30.80 (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 (6) (e), 59.54 (14) (g), 343.10 (1) (a), 343.10 (2) (a) 1., 343.10 (9), 343.21 (1) (jr), 350.101 (1) (d), 350.101 (2) (c), 350.106, 350.11 (3) (a) 1., 350.11 (3) (a) 2., 350.11 (3) (a) 3., 350.11 (3) (bm), 350.11 (3) (cm), 940.09 (1m) (b) and 940.25 (1m) (b); and to create 23.33 (1) (ib), 23.33 (1) (ih), 23.33 (1) (jd), 23.33 (1) (jh), 23.33 (1) (jk), 23.33 (4y), 23.33 (13) (b) 4b., 23.33 (13) (b) 5., 23.33 (13) (bm), 23.33 (13) (ce), 23.33 (13) (d) 2., 23.33 (13) (eg), 23.335 (1) (km), 23.335 (1) (nm), 23.335 (1) (zdr), 23.335 (1) (zer), 23.335 (1) (zet), 23.335 (12) (km), 23.335 (23) (c) 4b., 23.335 (23) (c) 5., 23.335 (23) (cg), 23.335 (23) (dm), 23.335 (23) (dr), 23.335 (23) (fm), 23.335 (23) (g) 2., 23.335 (23) (im), 30.50 (4n), 30.50 (4v), 30.50 (9fm), 30.50 (9m), 30.50 (9s), 30.50 (9t), 30.688, 30.80 (6) (am), 30.80 (6) (ar), 30.80 (6) (bg), 30.80 (6) (bn), 30.80 (6) (c) 2., 30.80 (6) (cm), 350.01 (9b), 350.01 (10c), 350.01 (10p), 350.01 (10q), 350.1075, 350.11 (3) (a) 4b., 350.11 (3) (a) 5., 350.11 (3) (am), 350.11 (3) (ar), 350.11 (3) (bg), 350.11 (3) (c) 2. and 350.11 (3) (e) of the statutes; relating to: intoxicated operation of all-terrain vehicles, utility terrain vehicles, off-highway motorcycles, snowmobiles, and motorboats and providing a penalty.

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 or UTV 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 all of the following:

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 eliminates the impositions of fines and mandatory terms of confinement in the county jail for a person who is found guilty of a violation of a refusal law who has, within the previous five years, violated the intoxicated operation of an ATV or UTV, the intoxicated operation of an OHM, the intoxicated boating, or the intoxicated snowmobiling law one or more times. Under the bill, the penalty for violating a refusal law is a forfeiture of at least $400 but not more than $550 regardless of the number of prior violations.

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.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report.

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:

AB356,1 Section 1 . 23.33 (1) (ib) of the statutes is created to read:

AB356,5,3 23.33 (1) (ib) “Intoxicated operating law" means the intoxicated operation of an all-terrain or utility terrain vehicle law, the intoxicated operation of an off-highway motorcycle law, as defined in s. 23.335 (1) (km), the intoxicated boating law, as defined in s. 30.50 (4m), or the intoxicated snowmobiling law, as defined in s. 350.01 (9c).

AB356,2 Section 2 . 23.33 (1) (ih) of the statutes is created to read:

AB356,5,5 23.33 (1) (ih) “Legal drinking age" means 21 years of age.

AB356,3 Section 3 . 23.33 (1) (jd) of the statutes is created to read:

AB356,5,12 23.33 (1) (jd) “Public premises" means all premises held out to the public for use of a motor vehicle, including highways, all premises provided by employers to employees for the use of their motor vehicles, and all premises provided to tenants of rental housing in buildings of 4 or more units for the use of their motor vehicles, whether such premises are publicly or privately owned and whether or not a fee is charged for the use of those premises.

AB356,4 Section 4 . 23.33 (1) (jh) of the statutes is created to read:

AB356,5,17 23.33 (1) (jh) “Recreational vehicle" means an all-terrain vehicle, a utility terrain vehicle, an off-highway motorcycle as defined in s. 23.335 (1) (q), a recreational motorboat as defined in s. 30.50 (9m), or a snowmobile, as defined in s. 340.01 (58a).

AB356,5 Section 5 . 23.33 (1) (jk) of the statutes is created to read:

AB356,5,21 23.33 (1) (jk) “Recreational vehicle and boating refusal law" means the all-terrain or utility terrain vehicle refusal law, the boating refusal law, as defined in s. 30.50 (2c), or the snowmobiling refusal law, as defined in s. 350.01 (17m).

AB356,6 Section 6 . 23.33 (1) (jm) of the statutes is renumbered 23.33 (1) (at) and amended to read:

AB356,5,25 23.33 (1) (at) “Refusal “ All-terrain or utility terrain vehicle refusal law" means sub. (4p) (e) or a local ordinance in conformity therewith.

AB356,7 Section 7. 23.33 (4c) (a) 3. of the statutes is amended to read:

AB356,6,6 23.33 (4c) (a) 3. `Operating with alcohol concentrations at specified levels; below legal drinking age 21.' If a A person who has not attained the legal drinking age of 21, the person may not engage in the operation of an all-terrain vehicle or utility terrain vehicle while he or she has an alcohol concentration of more than 0.0 but not more less than 0.08.

AB356,8 Section 8 . 23.33 (4c) (a) 4. of the statutes is amended to read:

AB356,6,16 23.33 (4c) (a) 4. `Related charges.' A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of any combination of subd. 1., 2., or 2m. for acts arising out of the same incident or occurrence. If the person is charged with violating any combination of subd. 1., 2., or 2m., the offenses shall be joined. If the person is found guilty of any combination of subd. 1., 2., or 2m. for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under sub. (13) (b) 2. and 3. to 5. Subdivisions 1., 2., and 2m. each require proof of a fact for conviction which that the others do not require.

AB356,9 Section 9 . 23.33 (4c) (b) 3. of the statutes is amended to read:

AB356,7,2 23.33 (4c) (b) 3. `Related charges.' A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of any combination of subd. 1., 2., or 2m. for acts arising out of the same incident or occurrence. If the person is charged with violating any combination of subd. 1., 2., or 2m. in the complaint, the crimes shall be joined under s. 971.12. If the person is found guilty of any combination of subd. 1., 2., or 2m. for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under sub. (13) (b) 2. and 3. to 5. Subdivisions 1., 2., and 2m. each require proof of a fact for conviction which that the others do not require.

AB356,10 Section 10 . 23.33 (4t) of the statutes is amended to read:

AB356,7,7 23.33 (4t) Report arrest to department. If a law enforcement officer arrests a person for a violation of the intoxicated operation of an all-terrain vehicle or utility terrain vehicle law or the all-terrain or utility terrain vehicle refusal law, the law enforcement officer shall notify the department of the arrest as soon as practicable.

AB356,11 Section 11 . 23.33 (4y) of the statutes is created to read:

AB356,7,19 23.33 (4y) Suspension or revocation of operating privileges. (a) Orders to suspend or revoke. 1. If a court imposes a penalty for a violation of the intoxicated operation of an all-terrain or utility terrain vehicle law or the all-terrain or utility terrain vehicle refusal law, the court shall order the suspension of the person's privilege to operate a recreational vehicle for a period of not less than 12 months and not more than 16 months. As part of the order, the court may authorize the person to operate an all-terrain vehicle or utility terrain vehicle exclusively on land under the management and control of the person's immediate family if the court finds that such operation is essential for the purpose of engaging in an occupation or trade. Whenever a court suspends an operating privilege under this subdivision, the court shall notify the department of that action.

AB356,8,6 2. In addition to the order under subd. 1., the court shall also order the revocation of the person's privilege to operate a motor vehicle on public premises if the person, within 5 years prior to the arrest for the current violation of the intoxicated operation of an all-terrain or utility terrain vehicle law or the all-terrain or utility terrain vehicle refusal law, violated the intoxicated operating law or the recreational vehicle and boating refusal law. The period of revocation shall be not less than 6 months and not more than 12 months. Whenever a court revokes an operating privilege under this subdivision, the court may take possession of the revoked license. If the court takes possession of the revoked license, the court shall destroy the license. The court shall forward to the department of transportation the record of the conviction and notice of revocation. The person is eligible for an occupational license under s. 343.10 at any time.

AB356,8,8 (b) Operating while suspended or revoked. 1. No person may operate a recreational vehicle in violation of a suspension order imposed under par. (a) 1.

AB356,8,11 2. No person may operate an all-terrain vehicle or utility terrain vehicle during the time that the person's motor vehicle operating privilege is suspended or revoked for a conviction counted under s. 343.307 (1).

AB356,12 Section 12 . 23.33 (13) (b) 1. of the statutes is amended to read:

AB356,8,15 23.33 (13) (b) 1. Except as provided under subds. 2. and 3. to 5., a person who violates sub. (4c) (a) 1., 2., or 2m. or (4p) (e) shall forfeit not less than $150 $400 nor more than $300 $550.

AB356,13 Section 13 . 23.33 (13) (b) 2. of the statutes is amended to read:

AB356,8,23 23.33 (13) (b) 2. Except as provided under subd. 3., a A person who violates sub. (4c) (a) 1., 2., or 2m. or (4p) (e) and who, within 5 years prior to the arrest for the current violation, was convicted one time previously under the intoxicated operation of an all-terrain vehicle or utility terrain vehicle operating law or the recreational vehicle and boating refusal law shall be fined not less than $300 nor more than $1,100 and shall be imprisoned not less than 5 days nor more than 6 months one year in the county jail.

AB356,14 Section 14 . 23.33 (13) (b) 3. of the statutes is amended to read:

AB356,9,7 23.33 (13) (b) 3. A person who violates sub. (4c) (a) 1., 2., or 2m. or (4p) (e) and who, within 5 years prior to the arrest for the current violation, was convicted 2 or more times previously under the intoxicated operation of an all-terrain vehicle or utility terrain vehicle operating law or, the recreational vehicle and boating refusal law, or any combination of these laws, shall be fined not less than $600 nor more than $2,000 and shall be imprisoned not less than 30 days nor more than one year in the county jail.

AB356,15 Section 15 . 23.33 (13) (b) 4. of the statutes is renumbered 23.33 (13) (b) 6. and amended to read:

AB356,9,12 23.33 (13) (b) 6. A person who violates sub. (4c) (a) 3. or who violates sub. (4p) (e) and who has not attained the legal drinking age of 21 shall forfeit not more than $50.

AB356,16 Section 16 . 23.33 (13) (b) 4b. of the statutes is created to read:

AB356,9,19 23.33 (13) (b) 4b. A person who violates sub. (4c) (a) 1., 2., or 2m. and who, within 5 years prior to the arrest for the current violation, was convicted 3 times previously under the intoxicated operating law, the recreational vehicle and boating refusal law, or any combination of these laws, shall be fined not less than $600 nor more than $2,000 and shall be imprisoned not less than 60 days nor more than one year in the county jail.

AB356,17 Section 17 . 23.33 (13) (b) 5. of the statutes is created to read:

AB356,9,24 23.33 (13) (b) 5. A person who violates sub. (4c) (a) 1., 2., or 2m. and who, within 5 years prior to the arrest for the current violation, was convicted 4 or more times previously under the intoxicated operating law, the recreational vehicle and boating refusal law, or any combination of these laws, shall be fined not less than $600 nor more than $2,000 and shall be imprisoned not less than 6 months nor more than one year in the county jail.

AB356,18 Section 18 . 23.33 (13) (bg) of the statutes is amended to read:

AB356,10,9 23.33 (13) (bg) Penalties related to intoxicated operation of an all-terrain vehicle or utility terrain vehicle; underage passengers. If there is a passenger under 16 years of age on the all-terrain vehicle or utility terrain vehicle at the time of a violation that gives rise to a conviction under sub. (4c) (a) 1. or, 2., or 2m. or (4p) (e), the applicable minimum and maximum forfeitures, fines, and terms of imprisonment under pars. par. (b) 1., 2., and 3. to 5. for the conviction are doubled.

AB356,19 Section 19 . 23.33 (13) (bm) of the statutes is created to read:

AB356,10,21 23.33 (13) (bm) Alcohol and drug treatment alternatives. 1. In any county that opts to offer a reduced minimum period of imprisonment for the successful completion of a probation period that includes alcohol and other drug treatment, if the number of suspensions, revocations, and convictions for a violation of the intoxicated operation of an all-terrain or utility terrain vehicle law or of the all-terrain or utility terrain vehicle refusal law within a 5-year period equals 2, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one, the fine shall be the same as under par. (b) 2., but the period of imprisonment shall be not less than 5 days, except that if the person successfully completes a period of probation that includes alcohol and other drug treatment, the period of imprisonment shall be not less than 5 nor more than 7 days.

AB356,11,6 2. In any county that opts to offer a reduced minimum period of imprisonment for the successful completion of a probation period that includes alcohol and other drug treatment, if the number of suspensions, revocations, and convictions for a violation of the intoxicated operation of an all-terrain or utility terrain vehicle law or of the all-terrain or utility terrain vehicle refusal law within a 5-year period equals 3, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one, the fine shall be the same as under par. (b) 3., but the period of imprisonment shall be not less than 30 days, except that if the person successfully completes a period of probation that includes alcohol and other drug treatment, the period of imprisonment shall be not less than 14 days.

AB356,11,16 3. In any county that opts to offer a reduced minimum period of imprisonment for the successful completion of a probation period that includes alcohol and other drug treatment, if the number of suspensions, revocations, and convictions for a violation of the intoxicated operation of an all-terrain or utility terrain vehicle law or of the all-terrain or utility terrain vehicle refusal law within a 5-year period equals 4, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one, the fine shall be the same as under par. (b) 4b., but the period of imprisonment shall be not less than 60 days, except that if the person successfully completes a period of probation that includes alcohol and other drug treatment, the period of imprisonment shall be not less than 29 days.

AB356,11,18 4. A person may be sentenced under this paragraph or under s. 23.335 (23) (dm), 30.80 (6) (ar), or 350.11 (3) (ar) once in his or her lifetime.

AB356,20 Section 20 . 23.33 (13) (br) of the statutes is repealed.

AB356,21 Section 21 . 23.33 (13) (ce) of the statutes is created to read:

AB356,12,2 23.33 (13) (ce) Penalties related to suspension and revocation. 1. A person who operates a recreational vehicle in violation of sub. (4y) (b) 1. is subject to a forfeiture of not less than $50 nor more than $250. In addition, for each such violation, the court may suspend the person's privilege to operate a recreational vehicle for a period of not more than 6 months. Whenever a court suspends an operating privilege under this subdivision, the court shall notify the department of that action.

AB356,12,8 2. A person who operates an all-terrain vehicle or utility terrain vehicle in violation of sub. (4y) (b) 2. is subject to a forfeiture of not less than $150 nor more than $300. In addition, the court may suspend the person's privilege to operate a recreational vehicle for a period of not more than 6 months. Whenever a court suspends an operating privilege under this subdivision, the court shall notify the department of that action.

AB356,22 Section 22 . 23.33 (13) (cm) of the statutes is amended to read:

AB356,12,13 23.33 (13) (cm) Sentence of detention. The legislature intends that courts use the sentencing option under s. 973.03 (4) whenever appropriate for persons subject to par. (b) 2. or, 3., 4b., or 5., or (c). The use of this option can result in significant cost savings for the state and local governments.

AB356,23 Section 23 . 23.33 (13) (d) of the statutes is renumbered 23.33 (13) (d) 1. and amended to read:

AB356,12,18 23.33 (13) (d) 1. In determining the number of previous convictions under par. (b) 2. and 3. to 5., convictions arising out of the same incident or occurrence shall be counted as one previous conviction.

AB356,24 Section 24 . 23.33 (13) (d) 2. of the statutes is created to read:

AB356,13,5 23.33 (13) (d) 2. In determining the number of previous convictions under par. (b) 2. to 5., previous convictions under the intoxicated operation of an all-terrain or utility terrain vehicle law or under the all-terrain or utility terrain vehicle refusal law that occurred before, on, or after the effective date of this subdivision .... [LRB inserts date], and previous convictions under the intoxicated operation of an off-highway motorcycle law, as defined in s. 23.335 (1) (L), the off-highway motorcycle refusal law, as defined in s. 23.335 (1) (tm), the intoxicated boating law, as defined in s. 30.50 (4m), the boating refusal law, as defined in s. 30.50 (2c), the intoxicated snowmobiling law, as defined in s. 350.01 (9c), or the snowmobiling refusal law, as defined in s. 350.01 (17m), that occur after the effective date of this subdivision .... [LRB inserts date], shall count as previous convictions.

AB356,25 Section 25 . 23.33 (13) (dm) of the statutes is amended to read: