343.30(1q)(d)1.1. The assessment report shall order compliance with a driver safety plan. The report shall inform the person of the fee provisions under s. 46.03 (18) (f). The driver safety plan may include a component that makes the person aware of the effect of his or her offense on a victim and a victim’s family. The driver safety plan may include treatment for the person’s misuse, abuse or dependence on alcohol, controlled substances or controlled substance analogs, or attendance at a school under s. 345.60, or both. If the plan requires treatment at an approved tribal treatment facility, as defined in s. 51.01 (2c), the plan may include traditional tribal treatment modes. If the plan requires inpatient treatment, the treatment shall not exceed 30 days. A driver safety plan under this paragraph shall include a termination date consistent with the plan which shall not extend beyond one year. 343.30(1q)(d)2.2. The county department under s. 51.42 or approved tribal treatment facility under s. 51.45 (7) (h) shall assure notification of the department of transportation, in a manner prescribed by the department, and the person of the person’s compliance or noncompliance with assessment and with treatment. The school under s. 345.60 shall notify the department, the county department under s. 51.42, and the person of the person’s compliance or noncompliance with the requirements of the school. Nonpayment of the assessment fee or, if the person has the ability to pay, nonpayment of the driver safety plan fee is noncompliance with the court order. If the department is notified of any noncompliance, other than for nonpayment of the assessment fee or driver safety plan fee, it shall revoke the person’s operating privilege until the county department under s. 51.42, the approved tribal treatment facility under s. 51.45 (7) (h), or the school under s. 345.60 notifies the department that the person is in compliance with assessment or the driver safety plan. If the department is notified that a person has not paid the assessment fee, or that a person with the ability to pay has not paid the driver safety plan fee, the department shall suspend the person’s operating privilege for a period of 2 years or until it receives notice that the person has paid the fee, whichever occurs first. 343.30(1q)(d)3.3. The department shall notify the person of the suspension or revocation under subd. 2., the reason for the suspension or revocation and the person’s right to a review. A person may request a review of a revocation based upon failure to comply with a driver safety plan within 10 days of notification. The review shall be handled by the subunit of the department of transportation designated by the secretary. The issues at the review are limited to whether the driver safety plan, if challenged, is appropriate and whether the person is in compliance with the assessment order or the driver safety plan. The review shall be conducted within 10 days after a request is received. If the driver safety plan is determined to be inappropriate, the department shall order a reassessment and, if the person is otherwise eligible, the department shall reinstate the person’s operating privilege. If the person is determined to be in compliance with the assessment or driver safety plan, and if the person is otherwise eligible, the department shall reinstate the person’s operating privilege. If there is no decision within the 10-day period, the department shall issue an order reinstating the person’s operating privilege until the review is completed, unless the delay is at the request of the person seeking the review. 343.30(1q)(e)(e) Notwithstanding par. (c), if the court finds that the person is already covered by an assessment or is participating in a driver safety plan or has had evidence presented to it by a county department under s. 51.42 that the person has recently completed assessment, a driver safety plan or both, the court is not required to make an order under par. (c). This paragraph does not prohibit the court from making an order under par. (c), if it deems such an order advisable. 343.30(1q)(f)(f) The department may make any order which the court is authorized or required to make under this subsection if the court fails to do so. 343.30(1q)(h)(h) The court or department shall provide that the period of suspension or revocation imposed under this subsection shall be reduced by any period of suspension or revocation previously served under s. 343.305 if the suspension or revocation under s. 343.305 and the conviction for violation of s. 346.63 (1) or (2m) or a local ordinance in conformity therewith arise out of the same incident or occurrence. The court or department shall order that the period of suspension or revocation imposed under this subsection run concurrently with any period of time remaining on a suspension or revocation imposed under s. 343.305 arising out of the same incident or occurrence. The court may modify an occupational license authorized under s. 343.305 (8) (d) in accordance with this subsection. 343.30(1r)(1r) For any revocation the court orders under sub. (1q), the court shall extend the revocation period by the number of days to which the court sentences the person to imprisonment in a jail or prison for an offense related to the revocation. 343.30(1z)(1z) If a court imposes a driver improvement surcharge under s. 346.655 or a safe ride program surcharge under s. 346.657 and the person fails to pay all surcharges imposed under s. 346.655 or 346.657 within 60 days after the date by which the court ordered payment, the court may suspend the person’s operating privilege until the person pays all surcharges imposed under s. 346.655 or 346.657, except that the suspension period may not exceed 2 years. 343.30(2d)(2d) A court may suspend a person’s operating privilege upon conviction of any offense specified under ss. 940.225, 948.02, 948.025, 948.07, or 948.085, if the court finds that it is inimical to the public safety and welfare for the offender to have operating privileges. The suspension shall be for one year or until discharge from prison or jail sentence or probation, extended supervision or parole with respect to the offenses specified, whichever date is later. Receipt of a certificate of discharge from the department of corrections or other responsible supervising agency, after one year has elapsed since the suspension, entitles the holder to reinstatement of operating privileges. The holder may be required to present the certificate to the secretary if the secretary deems necessary. 343.30(2g)(2g) A court may suspend or revoke a person’s operating privilege for any period not exceeding one year upon conviction of that person for violating s. 346.67, 346.68 or 346.69. This subsection does not apply to circumstances that require the department to revoke a person’s operating privilege under s. 343.31 (1) (d) or (3) (i) or (j). 343.30(2j)(2j) A court may suspend a person’s operating privilege upon the person’s first conviction for violating s. 346.44 or 346.62 (2m) and shall suspend a person’s operating privilege upon the person’s 2nd or subsequent conviction within a 5-year period for violating s. 346.44 or 346.62 (2m). The suspension shall be for a period of 6 months. For purposes of determining prior convictions for purposes of this subsection, the 5-year period shall be measured from the dates of the violations that resulted in the convictions. Each conviction under s. 346.44 or 346.62 (2m) shall be counted, except that convictions under s. 346.44 and 346.62 (2m) arising out of the same incident or occurrence shall be counted as a single conviction. 343.30(3)(3) The court that ordered the issuance of an occupational license under s. 343.10 (4) (b) may withdraw the order to issue the license whenever the court, upon the facts, does not see fit to permit the licensee to retain the occupational license. Upon receiving notice that a court has withdrawn its order to issue an occupational license, the department shall cancel that license. 343.30(4)(4) Whenever a court suspends or revokes an operating privilege under this section, the court may take possession of any suspended or revoked license. If the court takes possession of a license, it shall destroy the license. The court shall forward, as provided in s. 345.48, to the department the record of conviction and notice of suspension or revocation. Whenever a court restricts the operating privilege of a person, the court shall forward notice of the restriction to the department. 343.30(5)(5) No court may suspend or revoke an operating privilege except as authorized by this chapter or ch. 345, 351, or 938 or s. 767.73, 800.095 (1) (a), 943.21 (3m), or 961.50. When a court revokes, suspends, or restricts a juvenile’s operating privilege under ch. 938, the department of transportation shall not disclose information concerning or relating to the revocation, suspension, or restriction to any person other than a court, district attorney, county corporation counsel, city, village, or town attorney, law enforcement agency, driver licensing agency of another jurisdiction, or the minor whose operating privilege is revoked, suspended, or restricted, or his or her parent or guardian. Persons entitled to receive this information shall not disclose the information to other persons or agencies. 343.30(6)(a)(a) In this subsection, “violation” means a violation of s. 125.07 (4) (a) or (b), 125.085 (3) (b) or 125.09 (2) or a local ordinance that strictly conforms to one of those statutes or a law of a federally recognized American Indian tribe or band in this state that strictly conforms to one of those statutes. 343.30(6)(b)2.2. For a violation committed within 12 months of a previous violation, suspension for not more than one year. 343.30(6)(b)3.3. For a violation committed within 12 months of 2 or more previous violations, suspension for not more than 2 years. 343.30(6)(bm)(bm) If the court imposes a suspension of a person’s operating privilege under s. 125.085 (3) (bd), the suspension shall be for 30 to 90 days. 343.30(6)(c)(c) Except as provided by par. (d), the suspension of the operating privilege under this subsection shall commence on the date of disposition. 343.30(6)(d)(d) If the person subject to suspension under this subsection does not hold a valid license under this chapter other than a license under s. 343.07 or 343.08 on the date of disposition, the suspension under par. (b) shall commence on the date on which the person is first eligible for issuance, renewal, or reinstatement of an operator’s license under this chapter. 343.30 HistoryHistory: 1971 c. 213 s. 5; 1971 c. 278; 1973 c. 70, 218; 1975 c. 5; 1975 c. 184 s. 13; 1975 c. 199, 297, 421; 1977 c. 29 s. 1654 (7) (a), (c); 1977 c. 30, 64, 193, 203; 1979 c. 221, 300, 331, 333, 355; 1981 c. 20; 1981 c. 79 s. 18; 1983 a. 17; 1983 a. 74 ss. 23m to 26, 32; 1983 a. 192; 1985 a. 80, 176, 337; 1987 a. 3, 17, 285; 1987 a. 332 s. 64; 1989 a. 7, 31, 105, 121, 336; 1991 a. 39, 251, 277, 316; 1993 a. 16, 227, 317; 1995 a. 27, 77, 269, 338, 401, 425, 448; 1997 a. 35, 84, 135, 237, 283; 1999 a. 32, 109, 143; 2001 a. 15, 16, 38; 2003 a. 30, 80; 2005 a. 277; 2005 a. 443 s. 265; 2005 a. 466; 2007 a. 20 ss. 3300, 9121 (6) (a); 2007 a. 134; 2009 a. 100, 102, 103, 402; 2011 a. 113, 173, 262; 2013 a. 246; 2015 a. 55; 2017 a. 105; 2021 a. 238 s. 44. 343.30 Cross-referenceCross-reference: See also ch. DHS 62, Wis. adm. code. 343.30 AnnotationThe limitation under sub. (5) that no court may suspend or revoke an operating privilege except as authorized by statute precludes not only restrictions on obtaining a physical license document, but also on the privilege to operate a vehicle. A court’s broad authority to fashion appropriate conditions of extended supervision is limited by the provisions of this section concerning suspension and revocation of operating privileges by the courts. State v. Hoppe, 2014 WI App 51, 354 Wis. 2d 219, 847 N.W.2d 869, 13-1457. 343.30 AnnotationSuspension or revocation of operating privileges applies to both a regular driver license and to a chauffeur’s license. 63 Atty. Gen. 240.
343.301343.301 Installation of ignition interlock device. 343.301(1g)(a)(a) A court shall enter an order under par. (am) if either of the following applies: 343.301(1g)(a)2.a.a. The person had an alcohol concentration of 0.15 or more at the time of the offense. 343.301(1g)(a)2.b.b. The person has a total of one or more prior convictions, suspensions, or revocations, counting convictions under ss. 940.09 (1) and 940.25 in the person’s lifetime and other convictions, suspensions, and revocations counted under s. 343.307 (1). 343.301(1g)(am)1.1. That the person’s operating privilege for the operation of “Class D” vehicles be restricted to operating vehicles that are equipped with an ignition interlock device and, except as provided in sub. (1m), shall order that each motor vehicle for which the person’s name appears on the vehicle’s certificate of title or registration be equipped with an ignition interlock device. 343.301(1g)(am)2.2. That the person participate in a program described in s. 165.957 or that meets the definition of a 24-7 sobriety program under 23 USC 405 (d) (7) (A) and regulations adopted thereunder. If the court enters an order under this subdivision, when the person completes or otherwise does not participate in the program, the court shall order that the person’s operating privilege for the operation of “Class D” vehicles be restricted to operating vehicles that are equipped with an ignition interlock device, shall specify the duration of the order, shall, except as provided in sub. (1m), order that each motor vehicle for which the person’s name appears on the vehicle’s certificate of title or registration be equipped with an ignition interlock device, and shall notify the department of such order. 343.301(1m)(a)(a) If equipping each motor vehicle with an ignition interlock device under sub. (1g) would cause an undue financial hardship, the court may order that one or more vehicles described in sub. (1g) not be equipped with an ignition interlock device. 343.301(1m)(b)(b) An order under sub. (1g) does not apply to a vehicle for which the department has not approved an ignition interlock device capable of being installed on the vehicle. 343.301(2m)(a)(a) If the court enters an order under sub. (1g) (am) 1., the restriction of the person’s operating privilege under the order under sub. (1g) (am) 1. shall begin on the date the order under sub. (1g) (am) 1. is issued and extend for a period of not less than one year after the date the department issues any license granted under this chapter nor more than the maximum operating privilege revocation period permitted for the refusal or violation after the date the department issues any license granted under this chapter except that if the maximum operating privilege revocation period is less than one year, the restriction of the person’s operating privilege under sub. (1g) (am) 1. shall extend for a period of one year after the department issues any license granted under this chapter. If the court enters an order under sub. (1g) (am) 1., the court may specify the date by which an ignition interlock device under sub. (1g) (am) 1. shall be installed. 343.301(2m)(b)(b) If the court enters an order under sub. (1g) (am) 2. that does not restrict a person’s operating privilege for the operation of “Class D” vehicles to operating vehicles that are equipped with an ignition interlock device while he or she participates in a program, the court shall order that the time period during which the person participates in a program, combined with the time period for which the person’s operating privilege is restricted under sub. (1g) (am) 2. equals not less than one year nor more than the maximum operating privilege revocation period permitted for the refusal or violation, except that if the maximum operating privilege revocation period is less than one year, the time period shall equal one year. The time period for which the person’s operating privilege is restricted under sub. (1g) (am) 2. begins on the date the department issues any license granted under this chapter. The court may order the person to install an ignition interlock device under sub. (1g) (am) 2. immediately after his or her participation in the program ends or while the person completes the program and for the additional period of time required under this paragraph, and shall notify the department of the date the person’s participation ended and the duration of the order restricting the operating privilege. A person subject to an order requiring installation of an ignition interlock device shall, within 2 weeks after the date on which installation of the ignition interlock device is required under the order, submit proof to the sheriff in his or her county of residence that an ignition interlock device has been installed in each motor vehicle to which the order applies. 343.301(3)(a)(a) Except as provided in par. (b), if the court enters an order under sub. (1g), the person shall be liable for the reasonable cost of equipping and maintaining any ignition interlock device installed on his or her motor vehicle. 343.301(3)(b)(b) If the court finds that the person who is subject to an order under sub. (1g) has a household income that is at or below 150 percent of the nonfarm federal poverty line for the continental United States, as defined in 42 USC 9902 (2), the court shall limit the person’s liability under par. (a) to one-half of the cost of equipping each motor vehicle with an ignition interlock device and one-half of the cost per day per vehicle of maintaining the ignition interlock device. 343.301(4)(4) A person to whom an order under sub. (1g) applies violates that order if he or she fails to have an ignition interlock device installed as ordered, removes or disconnects an ignition interlock device, requests or permits another to blow into an ignition interlock device or to start a motor vehicle equipped with an ignition interlock device for the purpose of providing the person an operable motor vehicle without the necessity of first submitting a sample of his or her breath to analysis by the ignition interlock device, or otherwise tampers with or circumvents the operation of the ignition interlock device. 343.301(5)(5) If the court enters an order under sub. (1g), the court shall impose and the person shall pay to the clerk of court an ignition interlock surcharge of $50. The clerk of court shall transmit the amount to the county treasurer. 343.301 AnnotationSub. (1g) (b) 2. requires an order for ignition interlock devices when a person violates s. 346.63 (1) and has one or more prior operating while intoxicated (OWI) convictions. Sub. (1g) (b) 2. provides no restrictions on how to count prior convictions for purposes of ordering ignition interlock devices. The ten-year look-back provision in s. 346.65 (2) (am) 2. for purposes of determining whether to charge or penalize a repeat OWI offender civilly or criminally is independent of and has no effect on orders for ignition interlock devices under this section. Village of Grafton v. Seatz, 2014 WI App 23, 352 Wis. 2d 747, 845 N.W.2d 672, 13-1414. 343.301 AnnotationWisconsin’s New OWI Law. Mishlove & Stuckert. Wis. Law. June 2010.
343.303343.303 Preliminary breath screening test. If a law enforcement officer has probable cause to believe that the person is violating or has violated s. 346.63 (1) or (2m) or a local ordinance in conformity therewith, or s. 346.63 (2) or (6) or 940.25 or s. 940.09 where the offense involved the use of a vehicle, or if the officer detects any presence of alcohol, a controlled substance, controlled substance analog or other drug, or a combination thereof, on a person driving or operating or on duty time with respect to a commercial motor vehicle or has reason to believe that the person is violating or has violated s. 346.63 (7) or a local ordinance in conformity therewith, the officer, prior to an arrest, may request the person to provide a sample of his or her breath for a preliminary breath screening test using a device approved by the department for this purpose. The result of this preliminary breath screening test may be used by the law enforcement officer for the purpose of deciding whether or not the person shall be arrested for a violation of s. 346.63 (1), (2m), (5) or (7) or a local ordinance in conformity therewith, or s. 346.63 (2) or (6), 940.09 (1) or 940.25 and whether or not to require or request chemical tests as authorized under s. 343.305 (3). The result of the preliminary breath screening test shall not be admissible in any action or proceeding except to show probable cause for an arrest, if the arrest is challenged, or to prove that a chemical test was properly required or requested of a person under s. 343.305 (3). Following the screening test, additional tests may be required or requested of the driver under s. 343.305 (3). The general penalty provision under s. 939.61 (1) does not apply to a refusal to take a preliminary breath screening test. 343.303 AnnotationA prosecutor’s statement that the defendant failed a preliminary breath test was improper, but evidence that the defendant refused to take a breathalyzer test was relevant and constitutionally admissible. State v. Albright, 98 Wis. 2d 663, 298 N.W.2d 196 (Ct. App. 1980). 343.303 AnnotationA preliminary breath test result is not determinative of probable cause to arrest for driving while intoxicated. A low test result does not void the grounds for arrest. Dane County v. Sharpee, 154 Wis. 2d 515, 453 N.W.2d 508 (Ct. App. 1990). 343.303 AnnotationThe bar of preliminary breath tests under this section is limited to proceedings related to arrests for offenses contemplated under this statute including those related to motor vehicles and intoxication. State v. Beaver, 181 Wis. 2d 959, 512 N.W.2d 254 (Ct. App. 1994). 343.303 AnnotationThis section bars the evidentiary use of preliminary breath test (PBT) results in motor vehicle violation cases, but not in other actions. Prosecutors who wish to rely on PBT results are required to present evidence of the device’s scientific accuracy as a foundation for admission. State v. Doerr, 229 Wis. 2d 616, 599 N.W.2d 897 (Ct. App. 1999), 98-1047. 343.303 Annotation“Probable cause to believe” refers to a quantum of evidence greater than reasonable suspicion to make an investigative stop, but less than probable cause to make an arrest. County of Jefferson v. Renz, 231 Wis. 2d 293, 603 N.W.2d 541 (1999), 97-3512. 343.303 AnnotationBlood may be drawn in a search incident to an arrest for a non-drunk-driving offense if the police reasonably suspect that the defendant’s blood contains evidence of a crime. This section does not prohibit the consideration of a suspect’s refusal to submit to a preliminary breath test for purposes of determining whether a warrantless involuntary draw of the suspect’s blood was supported by reasonable suspicion. State v. Repenshek, 2004 WI App 229, 277 Wis. 2d 780, 691 N.W.2d 369, 03-3089. 343.303 AnnotationUnder St. George, 2002 WI 50, for a defendant to establish a constitutional right to the admissibility of proffered expert testimony, the defendant must satisfy a two-part inquiry determining whether the evidence is clearly central to the defense and the exclusion of the evidence is arbitrary and disproportionate to the purpose of the rule of exclusion, so that exclusion undermines fundamental elements of the defendant’s defense. In an operating while intoxicated prosecution, even if a defendant establishes a constitutional right to present an expert opinion that is based in part on preliminary breath test results, the right to do so is outweighed by the state’s compelling interest to exclude that evidence. State v. Fischer, 2010 WI 6, 322 Wis. 2d 265, 778 N.W.2d 629, 07-1898. But see Fischer v. Ozaukee County Circuit Court, 741 F. Supp. 2d 944 (2010). 343.303 AnnotationProbable cause exists to request a preliminary breath test sample when the driver is known to be subject to a 0.02 prohibited alcohol content standard, the officer knows it would take very little alcohol for the driver to exceed that limit, and the officer smells alcohol on the driver. State v. Goss, 2011 WI 104, 338 Wis. 2d 72, 806 N.W.2d 918, 10-1113. 343.303 AnnotationA preliminary breath test may be requested when an officer has a basis to justify an investigative stop but has not established probable cause to justify an arrest. Under the facts of this case, the officer would have been justified in asking the defendant to take a preliminary breath test without asking him to perform any field-sobriety tests. That the defendant successfully completed all properly administered field-sobriety tests did not subtract from the common-sense view that the defendant may have had an impermissible blood-alcohol level. State v. Felton, 2012 WI App 114, 344 Wis. 2d 483, 824 N.W.2d 871, 11-2119. 343.303 AnnotationThe Wisconsin Supreme Court’s decision in Fischer, 2010 WI 6, affirming the exclusion of the defendant’s expert’s testimony using preliminary breath test results involved an unreasonable application of federal law as determined by the U.S. Supreme Court. Fischer v. Ozaukee County Circuit Court, 741 F. Supp. 2d 944 (2010). 343.305343.305 Tests for intoxication; administrative suspension and court-ordered revocation. 343.305(1)(b)(b) “Drive” means the exercise of physical control over the speed and direction of a motor vehicle while it is in motion. 343.305(1)(c)(c) “Operate” means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion. 343.305(2)(2) Implied consent. Any person who is on duty time with respect to a commercial motor vehicle or drives or operates a motor vehicle upon the public highways of this state, or in those areas enumerated in s. 346.61, is deemed to have given consent to one or more tests of his or her breath, blood or urine, for the purpose of determining the presence or quantity in his or her blood or breath, of alcohol, controlled substances, controlled substance analogs or other drugs, or any combination of alcohol, controlled substances, controlled substance analogs and other drugs, when requested to do so by a law enforcement officer under sub. (3) (a) or (am) or when required to do so under sub. (3) (ar) or (b). Any such tests shall be administered upon the request of a law enforcement officer. The law enforcement agency by which the officer is employed shall be prepared to administer, either at its agency or any other agency or facility, 2 of the 3 tests under sub. (3) (a), (am), or (ar), and may designate which of the tests shall be administered first. 343.305(3)(a)(a) Upon arrest of a person for violation of s. 346.63 (1), (2m) or (5) or a local ordinance in conformity therewith, or for a violation of s. 346.63 (2) or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, or upon arrest subsequent to a refusal under par. (ar), a law enforcement officer may request the person to provide one or more samples of his or her breath, blood or urine for the purpose specified under sub. (2). Compliance with a request for one type of sample does not bar a subsequent request for a different type of sample. 343.305(3)(am)(am) Prior to arrest, a law enforcement officer may request the person to provide one or more samples of his or her breath, blood or urine for the purpose specified under sub. (2) whenever a law enforcement officer detects any presence of alcohol, a controlled substance, a controlled substance analog or other drug, or a combination thereof, on a person driving or operating or on duty time with respect to a commercial motor vehicle or has reason to believe the person is violating or has violated s. 346.63 (7). Compliance with a request for one type of sample does not bar a subsequent request for a different type of sample. For the purposes of this paragraph, “law enforcement officer” includes inspectors in the performance of duties under s. 110.07 (3). 343.305(3)(ar)1.1. If a person is the operator of a vehicle that is involved in an accident that causes substantial bodily harm, as defined in s. 939.22 (38), to any person, and a law enforcement officer detects any presence of alcohol, a controlled substance, a controlled substance analog or other drug, or a combination thereof, the law enforcement officer may request the operator to provide one or more samples of his or her breath, blood, or urine for the purpose specified under sub. (2). Compliance with a request for one type of sample does not bar a subsequent request for a different type of sample. A person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent under this subdivision and one or more samples specified in par. (a) or (am) may be administered to the person. If a person refuses to take a test under this subdivision, he or she may be arrested under par. (a). 343.305 NoteNOTE: In State v. Prado, 2021 WI 64, the Wisconsin Supreme Court held that the incapacitated driver provision is unconstitutional. 343.305(3)(ar)2.2. If a person is the operator of a vehicle that is involved in an accident that causes the death of or great bodily harm to any person and the law enforcement officer has reason to believe that the person violated any state or local traffic law, the officer may request the operator to provide one or more samples of his or her breath, blood, or urine for the purpose specified under sub. (2). Compliance with a request for one type of sample does not bar a subsequent request for a different type of sample. A person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent under this subdivision and one or more samples specified in par. (a) or (am) may be administered to the person. If a person refuses to take a test under this subdivision, he or she may be arrested under par. (a). 343.305 NoteNOTE: In State v. Prado, 2021 WI 64, the Wisconsin Supreme Court held that the incapacitated driver provision is unconstitutional. 343.305(3)(b)(b) A person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent under this subsection, and if a law enforcement officer has probable cause to believe that the person has violated s. 346.63 (1), (2m) or (5) or a local ordinance in conformity therewith, or s. 346.63 (2) or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, or detects any presence of alcohol, controlled substance, controlled substance analog or other drug, or a combination thereof, on a person driving or operating or on duty time with respect to a commercial motor vehicle or has reason to believe the person has violated s. 346.63 (7), one or more samples specified in par. (a) or (am) may be administered to the person. 343.305 NoteNOTE: In State v. Prado, 2021 WI 64, the Wisconsin Supreme Court held that the incapacitated driver provision is unconstitutional. 343.305(3)(c)(c) This section does not limit the right of a law enforcement officer to obtain evidence by any other lawful means. 343.305(4)(4) Information. At the time that a chemical test specimen is requested under sub. (3) (a), (am), or (ar), the law enforcement officer shall read the following to the person from whom the test specimen is requested: “You have either been arrested for an offense that involves driving or operating a motor vehicle while under the influence of alcohol or drugs, or both, or you are the operator of a vehicle that was involved in an accident that caused the death of, great bodily harm to, or substantial bodily harm to a person, or you are suspected of driving or being on duty time with respect to a commercial motor vehicle after consuming an intoxicating beverage.
This law enforcement agency now wants to test one or more samples of your breath, blood or urine to determine the concentration of alcohol or drugs in your system. If any test shows more alcohol in your system than the law permits while driving, your operating privilege will be suspended. If you refuse to take any test that this agency requests, your operating privilege will be revoked and you will be subject to other penalties. The test results or the fact that you refused testing can be used against you in court.
If you take all the requested tests, you may choose to take further tests. You may take the alternative test that this law enforcement agency provides free of charge. You also may have a test conducted by a qualified person of your choice at your expense. You, however, will have to make your own arrangements for that test.
If you have a commercial driver license or were operating a commercial motor vehicle, other consequences may result from positive test results or from refusing testing, such as being placed out of service or disqualified.”
343.305(5)(5) Administering the test; additional tests. 343.305(5)(a)(a) If the person submits to a test under this section, the officer shall direct the administering of the test. A blood test is subject to par. (b). The person who submits to the test is permitted, upon his or her request, the alternative test provided by the agency under sub. (2) or, at his or her own expense, reasonable opportunity to have any qualified person of his or her own choosing administer a chemical test for the purpose specified under sub. (2). If the person has not been requested to provide a sample for a test under sub. (3) (a), (am), or (ar), the person may request a breath test to be administered by the agency or, at his or her own expense, reasonable opportunity to have any qualified person administer any test specified under sub. (3) (a), (am), or (ar). The failure or inability of a person to obtain a test at his or her own expense does not preclude the admission of evidence of the results of any test administered under sub. (3) (a), (am), or (ar). If a person requests the agency to administer a breath test and if the agency is unable to perform that test, the person may request the agency to perform a test under sub. (3) (a), (am), or (ar) that it is able to perform. The agency shall comply with a request made in accordance with this paragraph. 343.305(5)(b)(b) Blood may be withdrawn from the person arrested for violation of s. 346.63 (1), (2), (2m), (5), or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, or a local ordinance in conformity with s. 346.63 (1), (2m), or (5), or as provided in sub. (3) (am) or (b) to determine the presence or quantity of alcohol, a controlled substance, a controlled substance analog, or any other drug, or any combination of alcohol, controlled substance, controlled substance analog, and any other drug in the blood 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. 343.305(5)(c)(c) A person acting under par. (b), the employer of any such person and any hospital where blood is withdrawn by any such person have immunity from civil or criminal liability under s. 895.53.
