Chapter 23

23.33(4c)(b)4. 4. ‘Defenses.’

23.33(4c)(b)4.a. a. 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 he or she had not been under the influence of an intoxicant, 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.

23.33(4c)(b)4.b. b. 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.

23.33(4g) (4g) Preliminary breath screening test.

23.33(4g)(a) (a) Requirement. 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 all-terrain vehicle or utility terrain vehicle law and if, prior to an arrest, the law enforcement officer requested the person to provide this sample.

23.33(4g)(b) (b) Use of test results. 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 all-terrain vehicle or utility terrain vehicle law or for the purpose of deciding whether or not to request a chemical test under sub. (4p). Following the preliminary breath screening test, chemical tests may be required of the person under sub. (4p).

23.33(4g)(c) (c) Admissibility. 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 sub. (4p).

23.33(4g)(d) (d) Refusal. There is no penalty for a violation of par. (a). Subsection (13) (a) and the general penalty provision under s. 939.61 do not apply to that violation.

23.33(4j) (4j) Applicability of the intoxicated operation of an all-terrain vehicle or utility terrain vehicle law. In addition to being applicable upon highways, the intoxicated operation of an all-terrain vehicle or utility terrain vehicle law is applicable upon all premises held out to the public for use of their all-terrain vehicles or utility terrain vehicles, whether such premises are publicly or privately owned and whether or not a fee is charged for the use thereof.

23.33(4L) (4L) Implied consent. Any person who engages in the operation of an all-terrain vehicle or utility terrain vehicle upon the public highways of this state, or in those areas enumerated in sub. (4j), is deemed 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 sub. (4p). Any person who engages in the operation of an all-terrain vehicle or utility terrain vehicle within this state is deemed 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 sub. (4p).

23.33(4p) (4p) Chemical tests.

23.33(4p)(a) (a) Requirement.

23.33(4p)(a)1. 1. ‘Samples; submission to tests.’ 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 all-terrain vehicle or utility terrain vehicle 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 all-terrain vehicle or utility terrain vehicle law and if he or she is requested to submit to the test by a law enforcement officer.

23.33(4p)(a)2. 2. ‘Information.’ 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:

23.33(4p)(a)2.a. a. That he or she is deemed to have consented to tests under sub. (4L).

23.33(4p)(a)2.b. b. That a refusal to provide a sample or to submit to a chemical test constitutes a violation under par. (e) and is subject to the same penalties and procedures as a violation of sub. (4c) (a) 1.

23.33(4p)(a)2.c. c. That in addition to the designated chemical test under par. (b) 2., he or she may have an additional chemical test under par. (c) 1.

23.33(4p)(a)3. 3. ‘Unconscious person.’ 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 all-terrain vehicle or utility terrain vehicle 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.

23.33(4p)(b) (b) Chemical tests.

23.33(4p)(b)1. 1. ‘Test facility.’ 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 of the 3 chemical tests of breath, blood or urine for the purpose of authorized analysis. The department may enter into agreements for the cooperative use of test facilities.

23.33(4p)(b)2. 2. ‘Designated chemical test.’ A test facility shall designate one chemical test of breath, blood or urine which it is prepared to administer first for the purpose of authorized analysis.

23.33(4p)(b)3. 3. ‘Additional chemical test.’ A test facility shall specify one chemical test of breath, blood or urine, other than the test designated under subd. 2., which it is prepared to administer for the purpose of authorized analysis as an additional chemical test.

23.33(4p)(b)4. 4. ‘Validity; procedure.’ 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 subsection. Blood may be withdrawn from a person arrested for a violation of the intoxicated operation of an all-terrain vehicle or utility terrain vehicle 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.

23.33(4p)(b)5. 5. ‘Report.’ A test facility which administers a chemical test of breath, blood or urine for the purpose of authorized analysis under this subsection 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.

23.33(4p)(c) (c) Additional and optional chemical tests.

23.33(4p)(c)1. 1. ‘Additional chemical test.’ If a person is arrested for a violation of the intoxicated operation of an all-terrain vehicle or utility terrain vehicle law or is the operator of an all-terrain vehicle or utility terrain vehicle 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. (a) 1., the person may request the test facility to administer the additional chemical test specified under par. (b) 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.

23.33(4p)(c)2. 2. ‘Optional test.’ If a person is arrested for a violation of the intoxicated operation of an all-terrain vehicle or utility terrain vehicle law and if the person is not requested to provide a sample or to submit to a test under par. (a) 1., the person may request the test facility to administer a chemical test of his or her breath 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. If a test facility is unable to perform a chemical test of breath, the person may request the test facility to administer the designated chemical test under par. (b) 2. or the additional chemical test under par. (b) 3.

23.33(4p)(c)3. 3. ‘Compliance with request.’ A test facility shall comply with a request under this paragraph to administer any chemical test it is able to perform.

23.33(4p)(c)4. 4. ‘Inability to obtain chemical test.’ 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 pars. (a) and (b).

23.33(4p)(d) (d) Admissibility; effect of test results; other evidence. The results of a chemical test required or administered under par. (a), (b) or (c) 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 all-terrain vehicle or utility terrain vehicle 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. This subsection does not limit the right of a law enforcement officer to obtain evidence by any other lawful means.

23.33(4p)(e) (e) 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. (a). A person shall not be deemed to refuse 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. (a) or this paragraph are limited to:

23.33(4p)(e)1. 1. Whether the law enforcement officer had probable cause to believe the person was violating or had violated the intoxicated operation of an all-terrain vehicle or utility terrain vehicle law.

23.33(4p)(e)2. 2. Whether the person was lawfully placed under arrest for violating the intoxicated operation of an all-terrain vehicle or utility terrain vehicle law.

23.33(4p)(e)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. (a) 2. or whether the request and information was unnecessary under par. (a) 3.

23.33(4p)(e)4. 4. Whether the person refused to provide a sample or to submit to a chemical test.

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

23.33(4x) (4x) Officer’s action after arrest for operating an all-terrain vehicle or utility terrain vehicle while under influence of intoxicant. A person arrested for a violation of sub. (4c) (a) 1. or 2. or a local ordinance in conformity therewith or sub. (4c) (b) 1. or 2. may not be released until 12 hours have elapsed from the time of his or her arrest or unless a chemical test administered under sub. (4p) (a) 1. shows that the person has an alcohol concentration of 0.05 or less, but the person may be released to his or her attorney, spouse, relative or other responsible adult at any time after arrest.

23.33(4z) (4z) Public education program.

23.33(4z)(a) (a) The department shall promulgate rules to provide for a public education program to:

23.33(4z)(a)1. 1. Inform all-terrain vehicle and utility terrain vehicle operators of the prohibitions and penalties included in the intoxicated operation of an all-terrain vehicle or utility terrain vehicle law.

23.33(4z)(a)2. 2. Provide for the development of signs briefly explaining the intoxicated operation of an all-terrain vehicle or utility terrain vehicle law.

23.33(4z)(a)3. 3. Provide for the development of safety information signs.

23.33(4z)(b) (b) The department shall develop and issue an educational pamphlet on the intoxicated operation of an all-terrain vehicle or utility terrain vehicle law to be distributed, beginning in 1989, to persons issued all-terrain vehicle or utility terrain vehicle registration certificates under subs. (2) and (2g).

23.33(5) (5) Age restrictions; safety certification program.

23.33(5)(a) (a) All-terrain vehicles; age restriction.

23.33(5)(a)1. 1. Subject to subds. 2. to 5., no person under 12 years of age may operate an all-terrain vehicle unless any of the following applies:

23.33(5)(a)1.a. a. He or she is operating the all-terrain vehicle for an agricultural purpose and he or she is under the supervision of a person over 18 years of age. For purposes of this subd. 1. a., supervision does not require that the person under 12 years of age be subject to continuous direction or control by the person over 18 years of age.

23.33(5)(a)1.b. b. He or she is operating a small all-terrain vehicle on an all-terrain vehicle trail designated by the department and he or she is accompanied by his or her parent or guardian or by a person who is at least 18 years of age who is designated by the parent or guardian.

23.33(5)(a)2. 2. No person who is under 12 years of age may operate an all-terrain vehicle that is an implement of husbandry on a roadway under any circumstances.

23.33(5)(a)3. 3. No person who is under 12 years of age may operate an all-terrain vehicle on a roadway under the authorization provided under sub. (4) (d) 6. under any circumstances.

23.33(5)(a)4. 4. No person who is under 16 years of age may operate an all-terrain vehicle under the authority provided under sub. (4) (d) 4. or 7. unless the person is accompanied by his or her parent or guardian or by a person who is at least 18 years of age who is designated by the parent or guardian.

23.33(5)(a)5. 5. No person who is under 16 years of age may operate an all-terrain vehicle under the authorization provided under sub. (4) (f) under any circumstances.

23.33(5)(a)6. 6. No person who is under 12 years of age may rent or lease an all-terrain vehicle.

23.33(5)(am) (am) Utility terrain vehicles; age restriction.

23.33(5)(am)1. 1. No person under 16 years of age may operate, rent, or lease a utility terrain vehicle unless any of the following apply:

23.33(5)(am)1.a. a. He or she is operating the utility terrain vehicle for an agricultural purpose and he or she is under the supervision of a person over 18 years of age. For purposes of this subd. 1. a., supervision does not require that the person under 16 years of age be subject to continuous direction or control by the person over 18 years of age.

23.33(5)(am)1.b. b. He or she is at least 12 years of age, is operating a small utility terrain vehicle on an all-terrain vehicle trail designated by the department and he or she is accompanied by his or her parent or guardian or by a person who is at least 18 years of age who is designated by the parent or guardian.

23.33(5)(am)3. 3. Except as provided in par. (4) (d) 1., 2., and 3. a., no person who is under 16 years of age may operate a utility terrain vehicle on a roadway.

23.33(5)(b) (b) Safety certificate.

23.33(5)(b)1. 1. No person who is at least 12 years of age and who is born on or after January 1, 1988, may operate an all-terrain vehicle unless he or she holds a valid safety certificate issued by the department, another state, or a province of Canada.

23.33(5)(b)1m. 1m. No person who is at least 12 years of age and who is born on or after January 1, 1988, may operate a utility terrain vehicle unless he or she holds a valid safety certificate issued by the department, another state, or a province of Canada.

23.33(5)(b)2. 2. Any person who is required to hold an all-terrain vehicle or utility terrain vehicle safety certificate while operating an all-terrain vehicle or utility terrain vehicle shall carry proof that the person holds a valid safety certificate and shall display this proof to a law enforcement officer on request.

23.33(5)(b)3. 3. Persons enrolled in a safety certification program approved by the department may operate an all-terrain vehicle or utility terrain vehicle in an area designated by the instructor.

23.33(5)(c) (c) Exceptions.

23.33(5)(c)1. 1. In this paragraph, “land on which operation is authorized” means land under the management and control of a person who consents to the operation of an all-terrain vehicle or utility terrain vehicle on the land.

23.33(5)(c)2. 2. Paragraphs (a), (am), and (b) do not apply to a person who operates an all-terrain vehicle or utility terrain vehicle exclusively on land that is either of the following:

23.33(5)(c)2.a. a. Land under the management and control of the person’s immediate family.

23.33(5)(c)2.b. b. Land, other than land described under subd. 2. a., on which operation is authorized.

23.33(5)(c)3. 3. A person who operates an all-terrain vehicle or utility terrain vehicle on land on which operation is authorized qualifies for the exception under subd. 2. b. only if the person is under 12 years of age and operates the all-terrain vehicle or utility terrain vehicle when accompanied by his or her parent or guardian or by a person who is at least 18 years of age who is designated by the parent or guardian.

23.33(5)(c)4. 4. Notwithstanding the safety certificate requirements under par. (b), a person is not required to hold a safety certificate if all of the following apply:

23.33(5)(c)4.a. a. The person operates an all-terrain vehicle or utility terrain vehicle at an all-terrain vehicle or utility terrain vehicle demonstration event.

23.33(5)(c)4.b. b. The event under subd. 4. a. is sponsored by an all-terrain vehicle dealer, a utility terrain vehicle dealer, an all-terrain vehicle club, a utility terrain vehicle club, this state, a city, a village, a town, or a county.

23.33(5)(c)4.c. c. If the person is under 18 years of age, the person is accompanied by his or her parent or guardian or is accompanied by a person over 18 years of age who is designated by the parent or guardian.

23.33(5)(c)4.d. d. Notwithstanding sub. (3g) (a), the person wears protective headgear of the type required under s. 347.485 (1).

23.33(5)(c)4.e. e. The person operates the all-terrain vehicle or utility terrain vehicle in a closed-course area in the manner prescribed by the event sponsor.

23.33(5)(d) (d) Safety certification program established. The department shall establish or supervise the establishment of a program of instruction on all-terrain vehicle and utility terrain vehicle laws, including the intoxicated operation of an all-terrain vehicle or utility terrain vehicle law, regulations, safety and related subjects. The department shall establish by rule an instruction fee for this program. The department shall issue certificates to persons successfully completing the program. An instructor conducting the program of instruction under this paragraph 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.

23.33(5m) (5m) Safety enhancement program.

23.33(5m)(a) (a) The department shall establish a program to provide funding to organizations that meet the eligibility requirements under par. (b).

23.33(5m)(b) (b) To be eligible for funding under this subsection, an organization shall meet all of the following requirements:

23.33(5m)(b)1. 1. The organization is a nonstock corporation organized in this state.

23.33(5m)(b)2. 2. The organization promotes the operation of all-terrain vehicles and utility terrain vehicles in a manner that is safe and responsible and that does not harm the environment.

23.33(5m)(b)3. 3. The organization promotes the operation of all-terrain vehicles and utility terrain vehicles in a manner that does not conflict with the laws, rules, and departmental policies that relate to the operation of all-terrain vehicles or utility terrain vehicles.

23.33(5m)(b)4. 4. The interest of the organization is the recreational operation of all-terrain vehicles and utility terrain vehicles on all-terrain vehicle trails and other interconnected areas.

23.33(5m)(b)5. 5. The organization has a board of directors that has a majority of members who are representatives of all-terrain vehicle or utility terrain vehicle clubs.

23.33(5m)(b)6. 6. The organization provides support to all-terrain vehicle and utility terrain vehicle clubs.

23.33(5m)(c) (c) An organization receiving funding under this subsection shall use the moneys to promote and provide support to the program established under sub. (5) by conducting activities that include all of the following:

23.33(5m)(c)1. 1. Collecting data on the recreational operation of all-terrain vehicles and utility terrain vehicles.

23.33(5m)(c)2. 2. Providing assistance to the department in locating, recruiting, and training instructors for the program established under sub. (5) (d).

23.33(5m)(c)3. 3. Attempting to increase participation by current and future all-terrain vehicle and utility terrain vehicle operators and owners in the program established under sub. (5) (d).