Chapter 346

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.

346.675(4)(b)3. 3. Subject to subd. 2., if the vehicle is owned by a lessor of vehicles and at the time of the violation the vehicle was in the possession of a lessee, and the lessor provides a traffic officer with the information required under s. 343.46 (3), then the lessee and not the lessor shall be charged under this section.

346.675(4)(b)4. 4. Subject to subd. 2., if the vehicle is owned by a dealer as defined in s. 340.01 (11) (intro.) but including the persons specified in s. 340.01 (11) (a) to (d), and at the time of the violation the vehicle was being operated by any person on a trial run, and if the dealer provides a traffic officer with the name, address, and operator’s license number of the person authorized to operate the vehicle on the trial run, then this person, and not the dealer, shall be charged under this section.

346.675(4)(b)5. 5. That another person has been convicted under s. 346.67 (1), 346.68, or 346.69 for the violation of s. 346.67 (1), 346.68, or 346.69 specified in sub. (1).

346.675 History History: 2005 a. 411.

346.68 346.68 Duty upon striking unattended vehicle. The operator of any vehicle which collides with any vehicle which is unattended shall immediately stop and either locate and notify the operator or owner of such vehicle of the name and address of the operator and owner of the vehicle striking the unattended vehicle or leave in a conspicuous place in the vehicle struck, a written notice giving the name and address of the operator and of the owner of the vehicle doing the striking and a statement of the circumstances thereof. Any such stop shall be made without obstructing traffic more than is necessary.

346.68 History History: 1997 a. 258.

346.68 Annotation A driver’s knowledge of a collision with an unattended vehicle need not be proved under this section. 68 Atty. Gen. 274.

346.69 346.69 Duty upon striking property on or adjacent to highway. The operator of any vehicle involved in an accident resulting only in damage to fixtures or other property legally upon or adjacent to a highway shall take reasonable steps to locate and notify the owner or person in charge of such property of such fact and of the operator’s name and address and of the registration number of the vehicle the operator is driving and shall upon request and if available exhibit his or her operator’s license and shall make report of such accident when and as required in s. 346.70.

346.69 History History: 1991 a. 316.

346.70 346.70 Duty to report accident; assistance following accident.

346.70(1) (1) Immediate notice of accident. The operator or occupant of a vehicle involved in an accident resulting in injury to or death of any person, any damage to state or other government-owned property, except a state or other government-owned vehicle, to an apparent extent of $200 or more, or total damage to property owned by any one person or to a state or other government-owned vehicle to an apparent extent of $1,000 or more shall immediately by the quickest means of communication give notice of such accident to the police department, the sheriff’s department or the traffic department of the county or municipality in which the accident occurred or to a state traffic patrol officer. In this subsection, “injury” means injury to a person of a physical nature resulting in death or the need of first aid or attention by a physician or surgeon, whether or not first aid or medical or surgical treatment was actually received; “total damage to property owned by one person” means the sum total cost of putting the property damaged in the condition it was before the accident, if repair thereof is practical, and if not practical, the sum total cost of replacing such property. For purposes of this subsection if any property which is damaged is held in a form of joint or multiple ownership, the property shall be considered to be owned by one person.

346.70(1m) (1m) Law enforcement contact and involvement following an accident.

346.70(1m)(a) (a)

346.70(1m)(a)1. 1. No person in the business of towing, recovery, or repair of motor vehicles may contract for retrieval, recovery, or removal from the scene of a traffic accident described in sub. (1) of any motor vehicle that has sustained damage unless the person notifies, or has been contacted by, a law enforcement agency prior to retrieval, recovery, or removal of the vehicle.

346.70(1m)(a)2. 2. This paragraph does not apply with respect to removal of a motor vehicle from the roadway at the scene of an accident if such removal is necessary to avoid imminent danger to motorists or other persons.

346.70(1m)(b) (b) No person may knowingly assist an operator or occupant of a motor vehicle involved in an accident as described in sub. (1) to flee the scene of the accident unless the accident has, or the person is advised that the accident has, first been reported to a law enforcement agency, except to provide medical assistance.

346.70(2) (2) Written report of accident. Unless a report is made under sub. (4) by a law enforcement agency, within 10 days after an accident of the type described in sub. (1), the operator of a vehicle involved in the accident shall forward a written report of the accident to the department. The department may accept or require a report of the accident to be filed by an occupant or the owner in lieu of a report from the operator. Every accident report required to be made in writing shall be made on the appropriate form approved by the department and shall contain all of the information required therein unless not available. The report shall include information sufficient to enable the department to determine whether the requirements for deposit of security under s. 344.14 are inapplicable by reason of the existence of insurance or other exceptions specified in ch. 344.

346.70(3) (3) Who to report when operator unable. Whenever the operator of a vehicle is physically incapable of giving the notice and making the report required by subs. (1) and (2), the owner of the vehicle involved in the accident shall give the notice and make the report required by subs. (1) and (2). If the owner of the vehicle is physically or mentally incapable of making the report required by sub. (2), and if there was another occupant in the vehicle at the time of the accident capable of making the report, the occupant shall make the report.