Chapter 23

23.335(11)(b)2.a. a. The off-highway motorcycle is being operated during hours of daylight.

23.335(11)(b)2.b. b. The off-highway motorcycle is being operated during hours of darkness and the off-highway motorcycle route or off-highway motorcycle trail is located at least 40 feet from the roadway or is separated from the roadway by a head lamp barrier.

23.335(11)(c) (c) Other limitation. A person operating an off-highway motorcycle on an off-highway motorcycle route or off-highway motorcycle trail adjacent to a roadway shall comply with the speed limits of the adjacent roadway and with rules promulgated by the department and approved by the department of transportation.

23.335(12) (12) Intoxicated operation.

23.335(12)(a) (a) Operation.

23.335(12)(a)1. 1. No person may operate an off-highway motorcycle while under the influence of an intoxicant to a degree which renders him or her incapable of safe operation of the off-highway motorcycle.

23.335(12)(a)2. 2. No person may engage in the operation of an off-highway motorcycle while the person has an alcohol concentration of 0.08 or more.

23.335(12)(a)2m. 2m. No person may engage in the operation of an off-highway motorcycle while the person has a detectable amount of a restricted controlled substance in his or her blood.

23.335(12)(a)3. 3. If a person has not attained the age of 21, the person may not engage in the operation of an off-highway motorcycle while he or she has an alcohol concentration of more than 0.0 but not more than 0.08.

23.335(12)(a)4. 4. 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. (23) (c) 2. and 3. Subdivisions 1., 2., and 2m. each require proof of a fact for conviction which the others do not require.

23.335(12)(a)5. 5. In an action under subd. 2m. that is based on the defendant allegedly having a detectable amount of methamphetamine, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol.

23.335(12)(b) (b) Operation causing injury.

23.335(12)(b)1. 1. No person while under the influence of an intoxicant to a degree which renders him or her incapable of safe operation of an off-highway motorcycle may cause injury to another person by the operation of an off-highway motorcycle.

23.335(12)(b)2. 2. No person who has an alcohol concentration of 0.08 or more may cause injury to another person by the operation of an off-highway motorcycle.

23.335(12)(b)2m. 2m. No person who has a detectable amount of a restricted controlled substance in his or her blood may cause injury to another person by the operation of an off-highway motorcycle.

23.335(12)(b)3. 3. 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. (23) (c) 2. and 3. Subdivisions 1., 2., and 2m. each require proof of a fact for conviction which the others do not require.

23.335(12)(b)4. 4. In an action under this paragraph, the defendant has a defense if he or she proves by a preponderance of the evidence that the injury would have occurred even if he or she had been exercising due care and even if he or she had not been under the influence of an intoxicant to a degree which rendered him or her incapable of safe operation, did not have an alcohol concentration of 0.08 or more, or did not have a detectable amount of a restricted controlled substance in his or her blood.

23.335(12)(b)5. 5. In an action under subd. 2m. that is based on the defendant allegedly having a detectable amount of methamphetamine, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol.

23.335(12)(c) (c) Implied consent. Any person who engages in the operation of an off-highway motorcycle upon the public highways of this state, or in those areas enumerated in par. (d), is considered to have given consent to provide one or more samples of his or her breath, blood, or urine for the purpose of authorized analysis as required under pars. (f) and (g). Any person who engages in the operation of an off-highway motorcycle within this state is considered to have given consent to submit to one or more chemical tests of his or her breath, blood, or urine for the purpose of authorized analysis as required under pars. (f) and (g).

23.335(12)(d) (d) Applicability of law. The intoxicated operation of an off-highway motorcycle law applies to all of the following:

23.335(12)(d)1. 1. The operation of an off-highway motorcycle on any off-highway motorcycle corridor or any off-highway motorcycle route.

23.335(12)(d)2. 2. The operation of any off-highway motorcycle on other premises or areas located off the highways that are held out to the public for the recreational use of off-highway motorcycles whether such premises or areas are publicly or privately owned and whether or not a fee is charged for the use of an off-highway motorcycle.

23.335(12)(d)3. 3. The operation of a limited use off-highway motorcycle on a highway as authorized under sub. (10).

23.335(12)(d)4. 4. The operation of an off-highway motorcycle adjacent to a highway as authorized under sub. (11).

23.335(12)(e) (e) Preliminary breath screening.

23.335(12)(e)1. 1. A person shall provide a sample of his or her breath for a preliminary breath screening test if a law enforcement officer has probable cause to believe that the person is violating or has violated the intoxicated operation of an off-highway motorcycle law and if, prior to an arrest, the law enforcement officer requested the person to provide this sample.

23.335(12)(e)2. 2. A law enforcement officer may use the results of a preliminary breath screening test for the purpose of deciding whether or not to arrest a person for a violation of the intoxicated operation of an off-highway motorcycle law or for the purpose of deciding whether or not to request a chemical test under par. (f). Following the preliminary breath screening test, chemical tests may be required of the person under par. (f).

23.335(12)(e)3. 3. The result of a preliminary breath screening test is not admissible in any action or proceeding except to show probable cause for an arrest, if the arrest is challenged, or to show that a chemical test was properly required of a person under par. (f).

23.335(12)(e)4. 4. There is no penalty for a violation of subd. 1. Subsection (23) (a) and the general penalty provision under s. 939.61 do not apply to the violation.

23.335(12)(f) (f) Chemical tests; requirement.

23.335(12)(f)1. 1. A person shall provide one or more samples of his or her breath, blood, or urine for the purpose of authorized analysis if he or she is arrested for a violation of the intoxicated operation of an off-highway motorcycle law and if he or she is requested to provide the sample by a law enforcement officer. A person shall submit to one or more chemical tests of his or her breath, blood, or urine for the purpose of authorized analysis if he or she is arrested for a violation of the intoxicated operation of an off-highway motorcycle law and if he or she is requested to submit to the test by a law enforcement officer.

23.335(12)(f)2. 2. A law enforcement officer requesting a person to provide a sample or to submit to a chemical test under subd. 1. shall inform the person of all of the following at the time of the request and prior to obtaining the sample or administering the test:

23.335(12)(f)2.a. a. That he or she is deemed to have consented to tests under par. (c).

23.335(12)(f)2.b. b. That a refusal to provide a sample or to submit to a chemical test constitutes a violation under par. (h) and is subject to the same penalties and procedures as a violation of par. (a) 1.

23.335(12)(f)2.c. c. That in addition to the designated chemical test under par. (g) 2., he or she may have an additional chemical test under par. (g) 4.

23.335(12)(f)3. 3. A person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent under this paragraph, and if a law enforcement officer has probable cause to believe that the person violated the intoxicated operation of an off-highway motorcycle law, one or more chemical tests may be administered to the person without a request under subd. 1. and without providing information under subd. 2.

23.335(12)(g) (g) Chemical tests; procedures.

23.335(12)(g)1. 1. Upon the request of a law enforcement officer, a test facility shall administer a chemical test of breath, blood, or urine for the purpose of authorized analysis. A test facility shall be prepared to administer 2 out of 3 of these tests for the purpose of authorized analysis. The department may enter into agreements for the cooperative use of test facilities.

23.335(12)(g)2. 2. A test facility shall designate one chemical test of breath, blood, or urine which it is prepared to administer first as the primary test for the purpose of authorized analysis.

23.335(12)(g)3. 3. A test facility shall designate another chemical test of breath, blood, or urine, other than the test designated under subd. 2., which it is prepared to administer as an additional chemical test for the purpose of authorized analysis.

23.335(12)(g)4. 4. If a person is arrested for a violation of the intoxicated operation of an off-highway motorcycle law or is the operator of an off-highway motorcycle involved in an accident resulting in great bodily harm to or the death of someone and if the person is requested to provide a sample or to submit to a test under par. (f) 1., the person may request the test facility to administer the additional chemical test specified under subd. 3. or, at his or her own expense, reasonable opportunity to have any qualified person administer a chemical test of his or her breath, blood, or urine for the purpose of authorized analysis.

23.335(12)(g)5. 5. If a person is arrested for a violation of the intoxicated operation of an off-highway motorcycle law and if the person is not requested to provide a sample or to submit to a test under par. (f) 1., the person may request the test facility to administer a chemical test of his or her breath or may request, at his or her own expense, a reasonable opportunity to have any qualified person administer a chemical test of his or her breath, blood, or urine for the purpose of authorized analysis. If a test facility is unable to perform a chemical test of breath, the person may request the test facility to administer the chemical test designated under subd. 2. or the additional chemical test designated under subd. 3.

23.335(12)(g)6. 6. A test facility shall comply with a request under this paragraph to administer any chemical test it is able to perform.

23.335(12)(g)7. 7. The failure or inability of a person to obtain a chemical test at his or her own expense does not preclude the admission of evidence of the results of a chemical test required and administered under this paragraph or par. (f).

23.335(12)(g)8. 8. A chemical test of blood or urine conducted for the purpose of authorized analysis is valid as provided under s. 343.305 (6). The duties and responsibilities of the laboratory of hygiene, department of health services, and department of transportation under s. 343.305 (6) apply to a chemical test of blood or urine conducted for the purpose of authorized analysis under this paragraph and par. (f). Blood may be withdrawn from a person arrested for a violation of the intoxicated operation of an off-highway motorcycle law only by a physician, registered nurse, medical technologist, physician assistant, phlebotomist, or other medical professional who is authorized to draw blood, or person acting under the direction of a physician, and the person who withdraws the blood, the employer of that person, and any hospital where blood is withdrawn have immunity from civil or criminal liability as provided under s. 895.53.

23.335(12)(g)9. 9. A test facility which administers a chemical test of breath, blood, or urine for the purpose of authorized analysis under this paragraph and par. (f) shall prepare a written report which shall include the findings of the chemical test, the identification of the law enforcement officer or the person who requested a chemical test, and the identification of the person who provided the sample or submitted to the chemical test. The test facility shall transmit a copy of the report to the law enforcement officer and the person who provided the sample or submitted to the chemical test.

23.335(12)(h) (h) Chemical tests; refusal. No person may refuse a lawful request to provide one or more samples of his or her breath, blood, or urine or to submit to one or more chemical tests under par. (f). A person shall not be considered to have refused to provide a sample or to submit to a chemical test if it is shown by a preponderance of the evidence that the refusal was due to a physical inability to provide the sample or to submit to the test due to a physical disability or disease unrelated to the use of an intoxicant. Issues in any action concerning violation of par. (f) or this paragraph are limited to the following:

23.335(12)(h)1. 1. Whether the law enforcement officer had probable cause to believe the person was violating or had violated the intoxicated operation of an off-highway motorcycle law.

23.335(12)(h)2. 2. Whether the person was lawfully placed under arrest for violating the intoxicated operation of an off-highway motorcycle law.

23.335(12)(h)3. 3. Whether the law enforcement officer requested the person to provide a sample or to submit to a chemical test and provided the information required under par. (f) 2. or whether the request and information was unnecessary under par. (f) 3.

23.335(12)(h)4. 4. Whether the person refused to provide a sample or to submit to a chemical test.

23.335(12)(i) (i) Chemical tests; effect of test results. The results of a chemical test required or administered under par. (f) or (g) are admissible in any civil or criminal action or proceeding arising out of the acts committed by a person alleged to have violated the intoxicated operation of an off-highway motorcycle law on the issue of whether the person was under the influence of an intoxicant or the issue of whether the person had alcohol concentrations at or above specified levels or a detectable amount of a restricted controlled substance in his or her blood. Results of these chemical tests shall be given the effect required under s. 885.235. Paragraphs (f) to (h) do not limit the right of a law enforcement officer to obtain evidence by any other lawful means.

23.335(12)(j) (j) Report of arrest to department. If a law enforcement officer arrests a person for a violation of the intoxicated operation of an off-highway motorcycle law or the refusal law, the law enforcement officer shall notify the department of the arrest as soon as practicable.

23.335(12)(k) (k) Release of persons arrested.

23.335(12)(k)1. 1. A person arrested for a violation of the intoxicated operation of the off-highway motorcycle law may not be released until 12 hours have elapsed from the time of his or her arrest or unless a chemical test administered under par. (a) 1. or 2. shows that the person has an alcohol concentration of 0.05 or less, except as provided in subd. 2.

23.335(12)(k)2. 2. A person arrested for a violation of the intoxicated operation of the off-highway motorcycle law may be released to his or her attorney, spouse, relative, or other responsible adult at any time after arrest.

23.335(12)(L) (L) Public education program.

23.335(12)(L)1. 1. The department shall promulgate rules to provide for a public education program to:

23.335(12)(L)1.a. a. Inform off-highway motorcycle operators of the prohibitions and penalties included in the intoxicated operation of an off-highway motorcycle law.

23.335(12)(L)1.b. b. Provide for the development of signs briefly explaining the intoxicated operation of an off-highway motorcycle law.

23.335(12)(L)2. 2. The department shall develop and issue an educational pamphlet on the intoxicated operation of an off-highway motorcycle law to be distributed to persons issued off-highway motorcycle registration certificates under sub. (3).

23.335(13) (13) Age restrictions; safety certificate requirements.

23.335(13)(a) (a) Under 12 years of age. A person who is under 12 years of age may not operate an off-highway motorcycle on a roadway under any circumstances and may not operate an off-highway motorcycle off a roadway unless he or she is accompanied by a parent or guardian or by a person who is at least 18 years of age who has been designated by the parent or guardian.

23.335(13)(b) (b) At least 12 years of age. No person who is at least 12 years of age and born after January 1, 1998, may operate an off-highway motorcycle off the highways unless the person holds a valid certificate issued by the department under sub. (14) or by another state or a province of Canada.

23.335(13)(bg) (bg) Proof required. Any person who is required under sub. (13) to hold a safety certificate while operating an off-highway motorcycle shall carry proof that the person holds a valid safety certificate and shall display that proof to a law enforcement officer on request.

23.335(13)(br) (br) Operation during safety certification program. Persons enrolled in a safety certification program under sub. (14) may operate an off-highway motorcycle in an area designated by the instructor.

23.335(13)(c) (c) Exemptions.

23.335(13)(c)1. 1. The restrictions under pars. (a) and (b) do not apply to the operation of an off-highway motorcycle on private property if the owner of the property has given consent for the operation and does not hold the property out to the public for use of off-highway motorcycles.

23.335(13)(c)2. 2. The restriction under par. (a) does not apply to a person who is operating a limited use off-highway motorcycle at an off-highway motorcycle event sponsored by a local governmental unit, by an off-highway motorcycle association, or by a similar organization that is approved by a local governmental unit, who is wearing protective headgear in compliance with sub. (8) (a) or (b), and who is accompanied by a person who is at least 18 years of age or a parent or guardian.

23.335(14) (14) Safety certification program. The department shall establish or supervise the establishment of a program of instruction on laws related to the operation of off-highway motorcycles for recreational purposes off the highways. The program shall include instruction on the intoxicated operation of an off-highway motorcycle law, safety, and related subjects. The department shall establish by rule an instruction fee for this program. All or part of this program may be conducted by means of online instruction. The department shall issue certificates to persons successfully completing the program. An instructor conducting the program of instruction under this subsection shall collect the fee from each person who receives instruction. The department may determine the portion of this fee, which may not exceed 50 percent, that the instructor may retain to defray expenses incurred by the instructor in conducting the program. The instructor shall remit the remainder of the fee or, if nothing is retained, the entire fee to the department. The department shall issue a duplicate certificate of accomplishment to a person who is entitled to a duplicate certificate of accomplishment and who pays a fee of $2.75.

23.335(15) (15) Safety grant program.

23.335(15)(a) (a) The department shall establish a program to award grants to organizations that meet the eligibility requirements under par. (b).

23.335(15)(b) (b) To be eligible for a grant under this subsection, an organization shall meet all of the following requirements:

23.335(15)(b)1. 1. The organization is a nonstock corporation organized in this state.

23.335(15)(b)2. 2. The organization promotes the off-highway operation of off-highway motorcycles in a manner that is safe and responsible and that does not harm the environment.

23.335(15)(b)3. 3. The organization promotes the off-highway operation of off-highway motorcycles in a manner that does not conflict with the laws, rules, and departmental policies that are applicable to the operation of off-highway motorcycles.

23.335(15)(b)4. 4. The interest of the organization is limited to the recreational operation of off-highway motorcycles on off-highway motorcycle trails, off-highway motorcycle routes, and other areas that are off the highways.

23.335(15)(b)5. 5. The organization provides support to off-highway motorcycle clubs.

23.335(15)(c) (c) An organization receiving a grant under this subsection shall use the grant moneys to promote and provide support to the safety certification program established under sub. (14) by conducting activities that include all of the following:

23.335(15)(c)1. 1. Collecting data on the recreational off-highway operation of off-highway motorcycles.

23.335(15)(c)2. 2. Providing assistance to the department in locating, recruiting, and training instructors for the safety certification program established under sub. (14).

23.335(15)(c)3. 3. Attempting to increase participation by current and future off-highway motorcycle operators and owners in the safety certification program established under sub. (14).

23.335(15)(c)4. 4. Assisting the department of natural resources and the department of tourism in creating an outreach program to inform local communities of appropriate recreational off-highway use of off-highway motorcycles in their communities and of the economic benefits that may be gained from promoting tourism to attract persons who will participate in the recreational off-highway use of off-highway motorcycles.

23.335(15)(c)5. 5. Attempting to improve and maintain its relationship with all of the following:

23.335(15)(c)5.a. a. The department of natural resources and the department of tourism.

23.335(15)(c)5.b. b. Off-highway motorcycle dealers and manufacturers of off-highway motorcycles.

23.335(15)(c)5.c. c. All-terrain vehicle dealers, as defined in s. 23.33 (1) (bd), and all-terrain vehicle manufacturers, as defined in s. 23.33 (1) (bp).

23.335(15)(c)5.d. d. Snowmobile clubs, as defined in s. 350.138 (1) (e), snowmobile alliances, as defined in s. 350.138 (1) (d), and other organizations that promote the recreational operation of snowmobiles.

23.335(15)(c)6. 6. Recruiting, assisting in the training of, and providing support to, a corps of volunteers that will assist in providing instruction on the safe and responsible off-highway operation of off-highway motorcycles that is given in the field to operators of off-highway motorcycles.