Chapter 346

346.65 Annotation The state has exclusive jurisdiction over second offense for drunk driving. It is criminal and may not be prosecuted as an ordinance violation. County of Walworth v. Rohner, 108 Wis. 2d 713, 324 N.W.2d 682 (1982). But see City of Eau Claire v. Booth, 2016 WI 65, 370 Wis. 2d 595, 882 N.W.2d 738, 15-0869.

346.65 Annotation Under sub. (3), a fine is mandatory but a jail sentence is discretionary. State v. McKenzie, 139 Wis. 2d 171, 407 N.W.2d 274 (Ct. App. 1987).

346.65 Annotation Probation with a condition of 30-days’ confinement in the county jail is inadequate to meet the mandatory imprisonment requirement of sub. (2) (c) [now sub. (2) (am) 3.]. State v. Meddaugh, 148 Wis. 2d 204, 435 N.W.2d 269 (Ct. App. 1988).

346.65 Annotation An operating while intoxicated conviction in another state need not be under a law with the same elements as the Wisconsin statute to be counted as a prior conviction. State v. White, 177 Wis. 2d 121, 501 N.W.2d 463 (Ct. App. 1993).

346.65 Annotation A judgment entered in municipal court against a defendant for what is actually a second or subsequent offense is void. The state may proceed against the defendant criminally regardless of whether the judgment in municipal court is vacated. City of Kenosha v. Jensen, 184 Wis. 2d 91, 516 N.W.2d 4 (Ct. App. 1994).

346.65 Annotation The general requirements for establishing prior criminal offenses in s. 973.12 are not applicable to the penalty enhancement provisions for drunk driving offenses under sub. (2). There is no presumption of innocence accruing to the defendant as to prior convictions, but the accused must have an opportunity to challenge the existence of the prior offense. State v. Wideman, 206 Wis. 2d 91, 556 N.W.2d 737 (1996), 95-0852.

346.65 Annotation Sub. (2) is primarily a penalty enhancement statute. When a prior conviction is determined to be constitutionally defective, that conviction cannot be relied on for either charging or sentencing a present offense. State v. Foust, 214 Wis. 2d 568, 570 N.W.2d 905 (Ct. App. 1997), 97-0499.

346.65 Annotation A trial court cannot accept guilty pleas to both a second and a third offense operating a vehicle while intoxicated (OWI), and then apply the increased penalties of third offense OWI to the second offense conviction at sentencing. There must be a conviction before the graduated penalties can be used. State v. Skibinski, 2001 WI App 109, 244 Wis. 2d 229, 629 N.W.2d 12, 00-1278.

346.65 Annotation A defendant convicted of a second or subsequent offense operating while intoxicated is subject to the penalty enhancements provided for in both sub. (2) and s. 939.62 if the application of each enhancer is based on a separate and distinct prior conviction or convictions. State v. Delaney, 2003 WI 9, 259 Wis. 2d 77, 658 N.W.2d 416, 01-1051.

346.65 Annotation Nothing in sub. (2m) (a) prohibits chief judges from linking the aggravating and mitigating factors with an appropriate sentence within the broader range of sentences allowed under this section when adopting guidelines for their districts. A court may refer to the guidelines when sentencing under s. 346.63 (1) (a), but as the guidelines specifically only apply to s. 343.63 (1) (b) and (5), it is inappropriate for a court to apply the guidelines as the sole basis for its sentence in a s. 346.63 (1) (a) case. That the various judicial districts have different guidelines and defendants may receive different sentences based on where the crime was committed does not make guidelines adopted under sub. (2m) (a) unconstitutional. State v. Jorgensen, 2003 WI 105, 264 Wis. 2d 157, 667 N.W.2d 318, 01-2690.

346.65 Annotation The proper time to determine the number of a defendant’s prior operating a motor vehicle while under the influence of an intoxicant convictions for sentence enhancement purposes is at sentencing, regardless of whether some convictions may have occurred after a defendant committed the present offense. State v. Matke, 2005 WI App 4, 278 Wis. 2d 403, 692 N.W.2d 265, 03-2278.

346.65 Annotation Although the defendant’s Michigan and Wisconsin convictions stemmed from one continuous stint of driving, they arose from two separate incidents—one incident in Michigan and one incident in Wisconsin. Because the extraterritorial jurisdiction exceptions in Wisconsin and Michigan were not applicable to the defendant’s separate convictions in Wisconsin and Michigan, each state had jurisdiction only over the defendant’s act of driving while intoxicated within each state’s own boundaries. State v. Holder, 2011 WI App 116, 337 Wis. 2d 79, 803 N.W.2d 82, 09-2952.

346.65 Annotation The elements of an underlying first-offense operating while intoxicated (OWI) need not be proven to a jury beyond a reasonable doubt in a criminal proceeding for a subsequent OWI violation. State v. Verhagen, 2013 WI App 16, 346 Wis. 2d 196, 827 N.W.2d 891, 11-2033.

346.65 Annotation A circuit court lacks competency but retains subject matter jurisdiction when the court enters a civil forfeiture judgment under a municipal ordinance for a first-offense operating while intoxicated (OWI) that factually should have been criminally charged as a second-offense OWI under sub. (2) due to an undiscovered prior countable conviction. Unlike defects in subject matter jurisdiction, challenges to circuit court competency may be forfeited. In this case, the defendant forfeited the right to challenge a 1992 first-offense OWI judgment by failing to timely raise the challenge. City of Eau Claire v. Booth, 2016 WI 65, 370 Wis. 2d 595, 882 N.W.2d 738, 15-0869.

346.65 Annotation A prior expunged operating while intoxicated (OWI) conviction constitutes a prior conviction under s. 343.307 (1) when determining the penalty for OWI-related offenses. State v. Braunschweig, 2018 WI 113, 384 Wis. 2d 742, 921 N.W.2d 199, 17-1261.

346.65 Annotation This section does not provide a standard of proof for the penalties assigned. When a predicate prior offense is not an element that must be proven beyond a reasonable doubt, the offense need be proven by only a preponderance of the evidence. Unlike some operating with a prohibited alcohol concentration charges, a prior operating while intoxicated conviction is not an element under sub. (2) (am). State v. Braunschweig, 2018 WI 113, 384 Wis. 2d 742, 921 N.W.2d 199, 17-1261.

346.65 Annotation The plain text of this section requires a court sentencing a defendant convicted of a third-offense operating while intoxicated (OWI) with penalty enhancers for having a minor in the car and a high blood alcohol concentration (BAC) to impose a fine reflecting both penalty enhancers. Sub. (2) (am) 3. says the minimum fine for third-offense OWI is $600. Sub. (2) (f) 2. requires doubling the $600 fine. Sub. (2) (g) 3. requires quadrupling the $600 fine. Applying the enhanced fines to the defendant in this case requires the defendant to pay $1,200 for having a minor passenger plus $2,400 for having a high BAC. State v. Neill, 2020 WI 15, 390 Wis. 2d 248, 938 N.W.2d 521, 18-0075.

346.65 Annotation A mandatory minimum term of initial confinement under sub. (2) (am) 6. must be served in full, regardless of a defendant’s successful completion of the Wisconsin Substance Abuse Program under s. 302.05. State v. Gramza, 2020 WI App 81, 395 Wis. 2d 215, 952 N.W.2d 836, 20-0100.

346.65 Annotation Under Birchfield, 579 U.S. 438 (2016), and Dalton, 2018 WI 85, Wisconsin’s operating while intoxicated graduated-penalty scheme is unconstitutional to the extent it counts prior revocations for refusing to submit to a warrantless blood draw as offenses for the purpose of increasing the criminal penalty. State v. Forrett, 2022 WI 37, 401 Wis. 2d 678, 974 N.W.2d 422, 19-1850.

346.65 Annotation Sub. (2) (am) 5. requires a circuit court to impose a bifurcated sentence that includes a minimum of 18 months of initial confinement served in prison, unless the circuit court finds the exception allowing the court to impose a minimum of one year of initial confinement applies and states its reasons for doing so on the record. However, even if the court imposes sentence under the exception, the court’s sentence must still comply with the bifurcated sentence minimum—that is, it must have at least one year of initial confinement in prison as required under s. 973.01 (2) (b). The law does not authorize the circuit court to stay the sentence and instead place the offender on probation. State v. Shirikian, 2023 WI App 13, 406 Wis. 2d 633, 987 N.W.2d 819, 21-0859.

346.65 Annotation When a person is charged under s. 346.63 (1) with a second offense, the charge may not be reduced to a first offense and the court may not sentence under sub. (2) (a) 1. [now sub. (2) (a) 1m.]. The Department of Transportation must treat this as a second offense for purposes of revocation. 69 Atty. Gen. 47.

346.65 Annotation An uncounseled civil forfeiture conviction may provide the basis for criminal penalties for a subsequent offense. Schindler v. Clerk of Circuit Court, 715 F.2d 341 (1983).

346.65 Annotation New Law’s ‘Get Tough’ Provisions Fall Short of the Mark. Pangman & Mutschler. Wis. Law. Feb. 1993.

346.65 Annotation Targeting the Repeat Offender. Emerson & Maassen. Wis. Law. Feb. 1993.

346.65 Annotation Wisconsin’s New OWI Law. Mishlove & Stuckert. Wis. Law. June 2010.

346.655 346.655 Driver improvement surcharge.

346.655(1) (1) If a court imposes a fine or a forfeiture for a violation of s. 346.62 or 346.63 (1) 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, it shall impose a driver improvement surcharge in an amount of $535 under ch. 814 in addition to the fine or forfeiture, plus costs, fees, and other surcharges imposed under ch. 814.

346.655(2) (2) 

346.655(2)(a) (a) Except as provided in par. (b), the clerk of court shall collect and transmit the amount under sub. (1) to the county treasurer as provided in s. 59.40 (2) (m). The county treasurer shall then make payment to the secretary of administration as provided in s. 59.25 (3) (f) 2. of 59.1 percent of the amount.

346.655(2)(b) (b) If the forfeiture is imposed by a municipal court, the court shall transmit the amount to the treasurer of the county, city, town, or village, and that treasurer shall make payment to the secretary of administration as provided in s. 66.0114 (1) (bm) of 59.1 percent of the amount. The treasurer of the city, town, or village shall transmit the remaining amount to the treasurer of the county.

346.655(3) (3) 

346.655(3)(a) (a) Except as provided in par. (b), all moneys collected from the driver improvement surcharge that are transmitted to the county treasurer under sub. (2) (a) or (b), except the amounts that the county treasurer is required to transmit to the secretary of administration under sub. (2) (a) or (b), shall be retained by the county treasurer and disbursed to the county department under s. 51.42 for services under s. 51.42 for drivers referred through assessment.

346.655(3)(b) (b) If a person receives treatment from an approved tribal treatment facility, as defined in s. 51.01 (2c), in accordance with a driver safety plan under s. 343.30 (1q) (d), the county treasurer shall transmit the amount collected from the person’s driver improvement surcharge except the amounts that the treasurer is required to transmit to the secretary of administration under sub. (2) (a) or (b), to the facility for treatment services for drivers referred through assessment.

346.655(4) (4) Any person who fails to pay a driver improvement surcharge imposed under sub. (1) is subject to s. 343.30 (1z).

346.655 History History: 1981 c. 20; 1981 c. 314; 1983 a. 27 s. 2202 (20); 1985 a. 29, 337; 1987 a. 3, 27, 399; 1989 a. 31, 105; 1991 a. 39; 1993 a. 16; 1995 a. 27, 201; 1997 a. 27; 1999 a. 109; 1999 a. 150 s. 672; 2001 a. 16, 104; 2003 a. 30, 33, 139, 326; 2007 a. 111; 2009 a. 100; 2013 a. 20, 246; 2023 a. 9, 19.

346.655 Annotation Imprisonment or suspension of a license under s. 345.47 (1) (a) and (b) does not eliminate the liability of a defendant for payment of a surcharge under this section. 73 Atty. Gen. 24.

346.657 346.657 Safe ride program surcharge.

346.657(1) (1) If a court imposes a fine or a forfeiture for a violation of s. 346.62 or 346.63 (1) 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, it shall impose a safe ride program surcharge under ch. 814 in an amount of $75 in addition to the fine or forfeiture, plus costs, fees, and other surcharges imposed under ch. 814.

346.657(2) (2) 

346.657(2)(a) (a) Except as provided in par. (b), the clerk of court shall collect and transmit the amount under sub. (1) to the county treasurer as provided in s. 59.40 (2) (m). The county treasurer shall then make payment to the secretary of administration as provided in s. 59.25 (3) (f) 2.

346.657(2)(b) (b) If the forfeiture is imposed by a municipal court, the court shall transmit the amount under sub. (1) to the treasurer of the county, city, town, or village, and that treasurer shall make payment to the secretary of administration as provided in s. 66.0114 (1) (bm).

346.657(3) (3) Any person who fails to pay a driver improvement surcharge imposed under sub. (1) is subject to s. 343.30 (1z).

346.657 History History: 2015 a. 55; 2023 a. 9, 73.

subch. XI of ch. 346 SUBCHAPTER XI

ACCIDENTS AND ACCIDENT REPORTS

346.66 346.66 Applicability of sections relating to accidents and accident reporting.

346.66(1) (1) 

346.66(1)(a) (a) In addition to being applicable upon highways, ss. 346.67 to 346.70 are applicable upon all premises held out to the public for use of their motor vehicles, 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 thereof.

346.66(1)(b) (b) Except as provided in sub. (2), ss. 346.67 to 346.70 do not apply to private parking areas at farms or single-family residences.

346.66(1)(c) (c) Sections 346.67 to 346.70 do not apply to accidents involving only snowmobiles, all-terrain vehicles, utility terrain vehicles, off-highway motorcycles, as defined in s. 23.335 (1) (q), that were being operated off the highways, as defined in s. 23.335 (1) (y), or vehicles propelled by human power or drawn by animals.

346.66(2) (2) 

346.66(2)(a) (a) Sections 346.67, 346.68, and 346.69 apply to the operator of a vehicle that, whether by operator intention or lack of control, departs a highway or premises described in sub. (1) (a) immediately prior to an accident if the accident does not occur on real property owned or leased by the operator.

346.66(2)(b) (b) Sections 346.675 and 346.70 apply to an accident described in par. (a).

346.66 History History: 1971 c. 277; 1985 a. 29; 1995 a. 127; 2009 a. 62; 2011 a. 208; 2015 a. 170.

346.66 Annotation The test for whether a premises is held out to the public is whether, on any given day, potentially any resident of the community with a driver’s license and access to a motor vehicle could use the premises in an authorized manner. State v. Carter, 229 Wis. 2d 200, 598 N.W.2d 619 (Ct. App. 1999), 98-1688.

346.665 346.665 Definition. In ss. 346.67 to 346.72, notwithstanding s. 340.01 (42), “owner” means, with respect to a vehicle that is registered, or required to be registered, by a lessee of the vehicle under ch. 341, the lessee of the vehicle.

346.665 History History: 1997 a. 27.

346.67 346.67 Duty upon striking person or attended or occupied vehicle.

346.67(1) (1) The operator of a vehicle involved in an accident shall reasonably investigate what was struck and if the operator knows or has reason to know that the accident resulted in injury or death of a person or in damage to a vehicle that is driven or attended by a person, the operator shall stop the vehicle he or she is operating as close to the scene of the accident as possible and remain at the scene of the accident until the operator has done all of the following:

346.67(1)(a) (a) The operator shall give his or her name, address and the registration number of the vehicle he or she is driving to the person struck or to the operator or occupant of or person attending any vehicle collided with; and

346.67(1)(b) (b) The operator shall, upon request and if available, exhibit his or her operator’s license to the person struck or to the operator or occupant of or person attending any vehicle collided with; and

346.67(1)(c) (c) The operator shall render reasonable assistance to any person injured in the accident, including transporting, or making arrangements to transport the person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that medical or surgical treatment is necessary or if requested by the injured person.

346.67(2) (2) Any stop required under sub. (1) shall be made without obstructing traffic more than is necessary.

346.67(3) (3) A prosecutor is not required to allege or prove that an operator knew that he or she collided with a person or a vehicle driven or attended by a person in a prosecution under this section.

346.67 History History: 1991 a. 316; 1997 a. 258; 2015 a. 319.

346.67 Annotation Violation of this section is a felony. State ex rel. McDonald v. Circuit Court, 100 Wis. 2d 569, 302 N.W.2d 462 (1981).

346.67 Annotation Discussing the elements of the duty under this section. State v. Lloyd, 104 Wis. 2d 49, 310 N.W.2d 617 (Ct. App. 1981).

346.67 Annotation A “person injured” in sub. (1) (c) includes a person who is fatally injured. A subsequent determination of instantaneous death does not absolve a person of the duty to investigate whether assistance is possible. State v. Swatek, 178 Wis. 2d 1, 502 N.W.2d 909 (Ct. App. 1993).

346.67 Annotation “Accident” in sub. (1) means an unexpected, undesirable event and may encompass intentional conduct. By including intentional conduct within the definition, the reporting requirements do not infringe on the 5th amendment privilege against self-incrimination. State v. Harmon, 2006 WI App 214, 296 Wis. 2d 861, 723 N.W.2d 732, 05-2480.

346.67 Annotation “Accident” in the context of sub. (1) includes, at a minimum, the operator’s loss of control of the vehicle that results in a collision. Because the defendant’s loss of control of the vehicle occurred on the highway, even though the resulting collision occurred off the highway, the defendant was “involved in an accident” “upon a highway” within the meaning of sub. (1) and s. 346.02 (1). State v. Dartez, 2007 WI App 126, 301 Wis. 2d 499, 731 N.W.2d 340, 06-1845.

346.67 Annotation Sub. (1) requires an operator of a vehicle to identify him or herself as the operator of the vehicle. State v. Wuteska, 2007 WI App 157, 303 Wis. 2d 646, 735 N.W.2d 574, 06-2248.

346.67 Annotation Given the general rule that “where the crime is against persons rather than property, there are as many offenses as individuals affected” and the statute’s clear imposition of duties with regard to each of the victims at an accident scene, it is reasonable to presume that the legislature authorized multiple punishments under sub. (1). The defendant owed a distinct set of duties under sub. (1) to each of the two victims at the accident scene that the defendant fled. Although stopping one’s vehicle at the scene of the accident is one obligation that sub. (1) imposes, that requirement is manifestly in service of the statute’s true focus: the operator’s obligation to remain at the scene of the accident until the operator has fulfilled each of the enumerated statutory obligations owed to specified persons at the scene. State v. Pal, 2017 WI 44, 374 Wis. 2d 759, 893 N.W.2d 848, 15-1782.

346.675 346.675 Vehicle owner’s liability for failing to stop at the scene of an accident.

346.675(1) (1) Subject to s. 346.01 (2), the owner of a vehicle operated in the commission of a violation of s. 346.67 (1), 346.68, or 346.69 shall be liable for the violation as provided in this section.

346.675(2) (2) Any person who observes a violation of s. 346.67 (1), 346.68, or 346.69 may, within 24 hours after observing the violation, report the violation to a traffic officer of the county or municipality in which the violation occurred. If possible, the report shall contain the following information:

346.675(2)(a) (a) A description of the violation alleged.

346.675(2)(b) (b) The time and the approximate location at which the violation occurred.

346.675(2)(c) (c) The vehicle registration number and color of all vehicles involved in the violation.

346.675(2)(d) (d) Identification of each vehicle involved in the violation as an automobile, station wagon, motor truck, motor bus, motorcycle, or other type of vehicle.

346.675(2)(e) (e) If the violation included damage to property other than a vehicle, a description of such property.

346.675(3) (3) 

346.675(3)(a) (a) Within 72 hours after receiving a report containing all of the information in sub. (2), the traffic officer may investigate the violation and, after verifying the information provided under sub. (2) (c) to (e) and determining that there is probable cause to believe that a violation of s. 346.67 (1), 346.68, or 346.69 has occurred, may prepare a uniform traffic citation under s. 345.11 and personally serve it upon the owner of the vehicle being operated in the commission of the violation of s. 346.67 (1), 346.68, or 346.69.

346.675(3)(b) (b) If with reasonable diligence the owner specified in par. (a) cannot be served under par. (a), service may be made by leaving a copy of the citation at the owner’s usual place of abode within this state in the presence of a competent member of the family at least 14 years of age, who shall be informed of the contents thereof.

346.675(3)(c) (c) If with reasonable diligence the owner specified in par. (a) cannot be served under par. (a) or (b) or if the owner specified in par. (a) lives outside of the jurisdiction of the issuing authority, service may be made by certified mail addressed to the owner’s last-known address.

346.675(4) (4) 

346.675(4)(a) (a) Except as provided in par. (b), it shall be no defense to a violation of this section that the owner was not operating the vehicle at the time of the violation.

346.675(4)(b) (b) The following are defenses to a violation of this section:

346.675(4)(b)1. 1. That a report that the vehicle was stolen was given to a traffic officer before the violation occurred or within a reasonable time after the violation occurred.

346.675(4)(b)2. 2. If the owner of the vehicle, including a lessee specified in subd. 3., or a person on a trial run specified in subd. 4. provides a traffic officer with the name and address of the person operating the vehicle at the time of the violation and sufficient information for the officer to determine that probable cause does not exist to believe that the owner of the vehicle was operating the vehicle at the time of the violation, then the person operating the vehicle shall be charged under s. 346.67 (1), 346.68, or 346.69 and the owner, including a lessee, or person on a trial run shall not be charged under this section.