Chapter 346

346.63 Annotation Criminal prosecution for operating a motor vehicle with a prohibited blood alcohol content subsequent to administrative suspension of a driver’s operating privileges does not constitute multiple punishment and double jeopardy. State v. McMaster, 206 Wis. 2d 30, 556 N.W.2d 673 (1996), 95-1159.

346.63 Annotation Evidence of a refusal that follows an inadequate warning under s. 343.305 (4) violates due process, but admission is subject to harmless error analysis. State v. Schirmang, 210 Wis. 2d 324, 565 N.W.2d 225 (Ct. App. 1997), 96-2008.

346.63 Annotation A defendant’s refusal to submit to a field sobriety test is not protected by the right against self-incrimination and is admissible as evidence. State v. Mallick, 210 Wis. 2d 427, 565 N.W.2d 245 (Ct. App. 1997), 96-3048.

346.63 Annotation While prior convictions are an element of a violation of sub. (1) (b), admitting evidence of that element may not be proper. Admitting any evidence of prior convictions and submitting the element of the defendant’s status as a prior offender to the jury when the defendant admitted to the element was an erroneous exercise of discretion. State v. Alexander, 214 Wis. 2d 628, 571 N.W.2d 662 (1997), 96-1973. See also State v. Diehl, 2020 WI App 16, 391 Wis. 2d 353, 941 N.W.2d 272, 19-1176.

346.63 Annotation Prosecution under both sub. (1) (a) and (b) does not violate double jeopardy because there can only be one conviction and one punishment. Dual prosecution also does not violate due process. State v. Raddeman, 2000 WI App 190, 238 Wis. 2d 628, 618 N.W.2d 258, 00-0143.

346.63 Annotation A warrantless blood draw is permissible when: 1) the blood is taken to obtain evidence of intoxication from a person lawfully arrested; 2) there is a clear indication that evidence of intoxication will be produced; 3) the method used is reasonable and performed in a reasonable manner; and 4) the arrestee presents no reasonable objection. State v. Thorstad, 2000 WI App 199, 238 Wis. 2d 666, 618 N.W.2d 240, 99-1765.

346.63 Annotation A department of transportation driving record abstract presented at a preliminary examination to show prior convictions was sufficient to establish probable cause of prior offenses. State v. Lindholm, 2000 WI App 225, 239 Wis. 2d 167, 619 N.W.2d 267, 99-2298.

346.63 Annotation Sub. (1), operating while intoxicated and with a prohibited alcohol concentration, is not a lesser included offense of sub. (2) (a), injury-related operating while intoxicated and with a prohibited alcohol concentration. State v. Smits, 2001 WI App 45, 241 Wis. 2d 374, 626 N.W.2d 42, 00-1158.

346.63 Annotation That a person agreed to a breath test, but not a blood test, did not render police insistence on a blood test unreasonable. State v. Wodenjak, 2001 WI App 216, 247 Wis. 2d 554, 634 N.W.2d 867, 00-3419.

346.63 Annotation By consenting to the taking of a blood sample, the defendant also consented to the chemical analysis of the sample. Those are not separate events for warrant requirement purposes. State v. VanLaarhoven, 2001 WI App 275, 248 Wis. 2d 881, 637 N.W.2d 411, 01-0222.

346.63 Annotation Probation is permitted under s. 973.09 (1) (d) for fourth and subsequent operating a motor vehicle with a prohibited alcohol concentration violations, as long as the probation requires confinement for at least the mandatory minimum time period under this section. State v. Eckola, 2001 WI App 295, 249 Wis. 2d 276, 638 N.W.2d 903, 01-1044.

346.63 Annotation The analysis of blood taken in a warrantless nonconsensual draw, constitutional under Krajewski, 2002 WI 97, is the examination of evidence obtained pursuant to a valid search and not a second search requiring a warrant. State v. Riedel, 2003 WI App 18, 259 Wis. 2d 921, 656 N.W.2d 789, 02-1772.

346.63 Annotation Evidence from a warrantless nonconsensual blood draw is admissible when: 1) the blood is drawn to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation; 2) there is a clear indication that the blood draw will produce evidence of intoxication; 3) the method used to take the blood sample is reasonable and performed in a reasonable manner; and 4) the arrestee presents no reasonable objection to the blood draw. In the absence of an arrest, probable cause to believe blood currently contains evidence of a drunk-driving-related violation satisfies the first and second prongs. State v. Erickson, 2003 WI App 43, 260 Wis. 2d 279, 659 N.W.2d 407, 01-3367.

346.63 Annotation A Department of Transportation certified driving transcript was admissible evidence that established the defendant’s repeater status as an element of the prohibited alcohol concentration offense beyond a reasonable doubt. State v. Van Riper, 2003 WI App 237, 267 Wis. 2d 759, 672 N.W.2d 156, 03-0385.

346.63 Annotation Field sobriety tests are not scientific tests but are observational tools that law enforcement officers commonly use to assist them in discerning various indicia of intoxication, the perception of which is necessarily subjective. The procedures an officer employs in determining probable cause for intoxication go to the weight of the evidence, not its admissibility. City of West Bend v. Wilkens, 2005 WI App 36, 278 Wis. 2d 643, 693 N.W.2d 324, 04-1871.

346.63 Annotation The per se ban on driving or operating a motor vehicle with a detectable amount of a restricted controlled substance in one’s blood under sub. (1) (am) bears a reasonable and rational relationship to the goal of regulating the safety of roadways and is not fundamentally unfair such that there is a due process violation, nor does the statute offend principles of equal protection. State v. Smet, 2005 WI App 263, 288 Wis. 2d 525, 709 N.W.2d 474, 05-0690.

346.63 Annotation A defendant was not operating a vehicle under this section by merely sitting in the driver’s seat of a parked vehicle, although the engine was running, when the uncontested evidence showed that the defendant was not the person who left the engine running, had never physically manipulated or activated the controls necessary to put the vehicle in motion, and there was no circumstantial evidence that the defendant recently operated the vehicle, while another person had operated the vehicle. Village of Cross Plains v. Haanstad, 2006 WI 16, 288 Wis. 2d 573, 709 N.W.2d 447, 04-2232.

346.63 Annotation Weaving within a single traffic lane does not alone give rise to the reasonable suspicion necessary to conduct an investigative stop of a vehicle. The reasonableness of a stop must be determined based on the totality of the facts and circumstances. State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634, 05-2778.

346.63 Annotation Circumstantial evidence may be used to prove operation of a motor vehicle. While the motor in this case was not running, the keys were in the ignition and the parking and dash lights were on. Even absent a running motor, the jury was entitled to consider the circumstantial evidence to determine how and when the car arrived where it did and whether it was the defendant who operated it. State v. Mertes, 2008 WI App 179, 315 Wis. 2d 756, 762 N.W.2d 813, 07-2757.

346.63 Annotation Although evidence of intoxicant usage, such as odors, an admission, or containers, ordinarily exists in drunk driving cases and strengthens the existence of probable cause, such evidence is not required. The totality of the circumstances is the test. State v. Lange, 2009 WI 49, 317 Wis. 2d 383, 766 N.W.2d 551, 08-0882.

346.63 Annotation The legislature meant to make the crime of operating a motor vehicle with a prohibited alcohol concentration (PAC) one that requires a person to have the PAC at the time the person drives or operates the motor vehicle. A defendant who has two countable operating a motor vehicle while intoxicated (OWI) convictions at the time of arrest has a blood alcohol content (BAC) limit of 0.08 percent. Accordingly, the state could not properly charge the defendant with a PAC based on a BAC of 0.048 percent. The circuit court properly dismissed the charge of fourth offense PAC although a third OWI conviction was entered subsequent to the arrest. State v. Sowatzke, 2010 WI App 81, 326 Wis. 2d 227, 784 N.W.2d 700, 09-1990.

346.63 Annotation A “motor bicycle,” as defined in s. 340.01 (30), is a “motor vehicle,” as defined in s. 340.01 (35), and as used in sub. (1), at least when the motor bicycle being operated is self-propelled, rather than pedaled. State v. Koeppen, 2014 WI App 94, 356 Wis. 2d 812, 854 N.W.2d 849, 13-2539.

346.63 Annotation In light of McNeely, 569 U.S. 141 (2013), the holding in Bohling, 173 Wis. 2d 529 (1993), that the rapid dissipation of alcohol alone constitutes an exigent circumstance sufficient for law enforcement officers to order a warrantless investigatory blood draw, is no longer an accurate interpretation of the 4th amendment’s protection against unreasonable searches and seizures. The rapid dissipation of alcohol alone no longer constitutes a per se exigent circumstance. Exigent circumstances, sufficient to justify a warrantless investigatory blood draw of a drunk-driving suspect, are to be determined on a case-by-case totality of the circumstances analysis. State v. Kennedy, 2014 WI 132, 359 Wis. 2d 454, 856 N.W.2d 834, 12-0523.

346.63 Annotation Under the facts and circumstances of this case, the deputy reasonably responded to an accident, secured the scene, investigated the matter, and ultimately was left with a very narrow time frame in which the defendant’s blood could be drawn so as to produce reliable evidence of intoxication. This sort of “now or never” moment is the epitome of an exigent circumstance justifying a warrantless blood draw. State v. Tullberg, 2014 WI 134, 359 Wis. 2d 421, 857 N.W.2d 120, 12-1593.

346.63 Annotation Operation of a motor vehicle with a detectable amount of a restricted controlled substance in the blood under sub. (1) (am) is a strict liability offense that does not require scienter and is constitutional. State v. Luedtke, 2015 WI 42, 362 Wis. 2d 1, 863 N.W.2d 592, 13-1737.

346.63 Annotation A court of appeals’ decision remanding the case to the circuit court with instructions to enter an amended judgment of conviction for operating with a prohibited alcohol concentration (PAC) as a seventh offense and impose sentence for a seventh offense violated the defendant’s right to due process after the defendant entered a knowing, intelligent, and voluntary guilty plea to operating with a PAC as a sixth offense. Because a seventh offense carries a greater range of punishment than does a sixth offense, the court of appeals’ remedy rendered the plea unknowing, unintelligent, and involuntary. State v. Chamblis, 2015 WI 53, 362 Wis. 2d 370, 864 N.W.2d 806, 12-2782.

346.63 Annotation Upon a defendant’s lawful arrest for drunk driving, the defendant has no constitutional or statutory right to refuse to take a breathalyzer test, and the state can comment at trial on the defendant’s improper refusal to take the test. State v. Lemberger, 2017 WI 39, 374 Wis. 2d 617, 893 N.W.2d 232, 15-1452.

346.63 Annotation Former sub. (2) (am) 2. to 7., 2011 stats., clearly provides for increasing fines and terms of imprisonment based on the number of convictions amassed by a defendant. Sub. (2) (am) 6. provides that an individual convicted of nine operating while intoxicated offenses is guilty of a Class G [now Class F] felony and subject to the penalty for that class of felony. State v. Wortman, 2017 WI App 61, 378 Wis. 2d 105, 902 N.W.2d 561, 16-1144.

346.63 Annotation In this case, the defendant’s riding lawn mower was not an “all-terrain vehicle” under s. 340.01 (2g) because it did not satisfy the requirement of having a straddle seat. It was, however, a “motor vehicle” under s. 340.01 (35), and the defendant therefore was validly prosecuted for operating a motor vehicle while intoxicated in violation of sub. (1) (a). State v. Shoeder, 2019 WI App 60, 389 Wis. 2d 244, 936 N.W.2d 172, 18-0997.

346.63 Annotation Under the facts of this case, there was a reasonable likelihood that the state was effectively relieved of its burden to prove that the defendant was “under the influence” of cocaine and marijuana while driving, in violation of the defendant’s right to due process of law. The jury instruction was incomplete and therefore ambiguous to the extent that it failed to inform the jury of two related propositions: 1) not every person who has consumed cocaine and THC is under the influence; and 2) a person is not under the influence unless the person has consumed a sufficient amount of cocaine and THC to cause the person to be less able to exercise the clear judgment and steady hand necessary to handle and control a motor vehicle. The jury here was not explicitly informed that it could not find the defendant guilty of operating while intoxicated under sub. (1) (a) based merely on a finding that the defendant had consumed cocaine and THC before driving. State v. McAdory, 2021 WI App 89, 400 Wis. 2d 215, 968 N.W.2d 770, 20-2001.

346.63 Annotation Natural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the warrant requirement for nonconsensual blood testing in all drunk-driving cases. Consistent with general 4th amendment principles, exigency in this context must be determined case by case based on the totality of the circumstances. Missouri v. McNeely, 569 U.S. 141, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).

346.63 Annotation First offense violations of sub. (1) (a) are assimilated under the federal Assimilative Crimes Act when committed on federal enclave. United States v. Manning, 700 F. Supp. 1001 (1988).

346.63 Annotation Offense Definition in Wisconsin’s Impaired Driving Statutes. Hammer. 69 MLR 165 (1986).

346.63 Annotation Alcohol and Other Drugs in Wisconsin Drivers: The Laboratory Perspective. Field. 69 MLR 235 (1986).

346.63 Annotation Effective Use of Expert Testimony in the Defense of Drunk Driving Cases. Olson. WBB Dec. 1981.

346.63 Annotation The new OMVWI law: Wisconsin changes its approach to the problem of drinking and driving: Part I. Hammer. WBB Apr. 1982.

346.63 Annotation The new OMVWI law: Wisconsin changes its approach to the problem of drinking and driving: Part II. Hammer. WBB May 1982.

346.63 Annotation Double Jeopardy: A New Tool in the Arsenal of Drunk Driving Defenses. Sines & Ekman. Wis. Law. Dec. 1995.

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

346.635 346.635 Report arrest or out-of-service order to department. Whenever a law enforcement officer arrests a person for a violation of s. 346.63 (1), (5) or (7), 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, the officer shall notify the department of the arrest and of issuance of an out-of-service order under s. 343.305 (7) (b) or (9) (am) as soon as practicable.

346.635 History History: 1981 c. 20; 1989 a. 105.

346.637 346.637 Driver awareness program. The department shall conduct a campaign to educate drivers in this state concerning:

346.637(1) (1) The laws relating to operating a motor vehicle and drinking alcohol, using controlled substances or controlled substance analogs, or using any combination of alcohol, controlled substances and controlled substance analogs.

346.637(2) (2) The effects of alcohol, controlled substances or controlled substance analogs, or the use of them in any combination, on a person’s ability to operate a motor vehicle.

346.637 History History: 1981 c. 20; 1995 a. 448.

346.64 346.64 Employment of drunken operators.

346.64(1) (1) No person who owns or has direct control of a commercial motor vehicle or any vehicle operated upon a highway for the conveyance of passengers for hire shall employ as an operator of such vehicle and retain in the person’s employment any person who is addicted to the excessive use of intoxicating liquor or to the use of a controlled substance or controlled substance analog under ch. 961. In addition to being subject to fine or imprisonment as prescribed by law, such person shall forfeit $5 for each day such operator is retained in the person’s employ.

346.64(2) (2) Upon conviction of an operator of a commercial motor vehicle or any vehicle operated for the conveyance of passengers for hire, for driving or operating such vehicle while under the influence of an intoxicant, the owner or person having direct control of such vehicle shall discharge such operator from such employment. No person shall employ or retain in employment as an operator of a commercial motor vehicle or a vehicle operated upon a highway for the conveyance of passengers for hire any person who has been so convicted within the preceding 6-month period or any person during a period of disqualification under s. 343.315, unless s. 343.055 (2) applies. In addition to being subject to fine or imprisonment as prescribed by law, such person shall forfeit $5 for each day such operator is retained in the person’s employ contrary to the provisions of this subsection.

346.64 History History: 1971 c. 219; 1989 a. 105, 359; 1995 a. 448.

346.65 346.65 Penalty for violating sections 346.62 to 346.64.

346.65(1) (1) Except as provided in sub. (5m), any person who violates s. 346.62 (2):

346.65(1)(a) (a) May be required to forfeit not less than $50 nor more than $400, except as provided in par. (b).

346.65(1)(b) (b) May be fined not less than $100 nor more than $1,000 or imprisoned for not more than one year in the county jail or both for a 2nd or subsequent violation.

346.65(2) (2) 

346.65(2)(am) (am) Any person violating s. 346.63 (1):

346.65(2)(am)1. 1. Shall forfeit not less than $150 nor more than $300, except as provided in subds. 2. to 7. and par. (f).

346.65(2)(am)2. 2. Except as provided in pars. (bm) and (f), shall be fined not less than $350 nor more than $1,100 and imprisoned for not less than 5 days nor more than 6 months if the number of convictions under ss. 940.09 (1) and 940.25 in the person’s lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1) within a 10-year period, equals 2, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one.

346.65(2)(am)3. 3. Except as provided in pars. (cm), (f), and (g), shall be fined not less than $600 nor more than $2,000 and imprisoned for not less than 45 days nor more than one year in the county jail if the number of convictions under ss. 940.09 (1) and 940.25 in the person’s lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1), equals 3, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one.

346.65(2)(am)4. 4. Except as provided in pars. (dm), (f), and (g), is guilty of a Class H felony and shall be fined not less than $600 and imprisoned for not less than 60 days if the number of convictions under ss. 940.09 (1) and 940.25 in the person’s lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1), equals 4, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one.

346.65(2)(am)5. 5. Except as provided in pars. (f) and (g), is guilty of a Class G felony and shall be fined not less than $600 if the number of convictions under ss. 940.09 (1) and 940.25 in the person’s lifetime, plus the total number of suspensions, revocations and other convictions counted under s. 343.307 (1), equals 5 or 6, except that suspensions, revocations or convictions arising out of the same incident or occurrence shall be counted as one. The court shall impose a bifurcated sentence under s. 973.01, and the confinement portion of the bifurcated sentence imposed on the person shall be not less than one year and 6 months. The court may impose a term of confinement that is less than one year and 6 months if the court finds that the best interests of the community will be served and the public will not be harmed and if the court places its reasons on the record.

346.65(2)(am)6. 6. Except as provided in par. (f), is guilty of a Class F felony if the number of convictions under ss. 940.09 (1) and 940.25 in the person’s lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1), equals 7, 8, or 9, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one. The court shall impose a bifurcated sentence under s. 973.01 and the confinement portion of the bifurcated sentence imposed on the person shall be not less than 3 years.

346.65(2)(am)7. 7. Except as provided in par. (f), is guilty of a Class E felony if the number of convictions under ss. 940.09 (1) and 940.25 in the person’s lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1), equals 10 or more except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one. The court shall impose a bifurcated sentence under s. 973.01 and the confinement portion of the bifurcated sentence imposed on the person shall be not less than 4 years.

346.65(2)(bm) (bm) In any county that opts to offer a reduced minimum period of imprisonment for the successful completion of a probation period that includes alcohol and other drug treatment, if the number of convictions under ss. 940.09 (1) and 940.25 in the person’s lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1) within a 10-year period, equals 2, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one, the fine shall be the same as under par. (am) 2., but the period of imprisonment shall be not less than 5 days, except that if the person successfully completes a period of probation that includes alcohol and other drug treatment, the period of imprisonment shall be not less than 5 nor more than 7 days. A person may be sentenced under this paragraph or under par. (cm) or (dm) or sub. (2j) (bm), (cm), or (cr) or (3r) once in his or her lifetime.

346.65(2)(cm) (cm) In any county that opts to offer a reduced minimum period of imprisonment for the successful completion of a probation period that includes alcohol and other drug treatment, if the number of convictions under ss. 940.09 (1) and 940.25 in the person’s lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1) equals 3, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one, the fine shall be the same as under par. (am) 3., but the period of imprisonment shall be not less than 45 days, except that if the person successfully completes a period of probation that includes alcohol and other drug treatment, the period of imprisonment shall be not less than 14 days. A person may be sentenced under this paragraph or under par. (bm) or (dm) or sub. (2j) (bm), (cm), or (cr) or (3r) once in his or her lifetime.

346.65(2)(dm) (dm) In any county that opts to offer a reduced minimum period of imprisonment for the successful completion of a probation period that includes alcohol and other drug treatment, if the number of convictions under ss. 940.09 (1) and 940.25 in the person’s lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1) equals 4, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one, the fine shall be the same as under par. (am) 4., but the period of imprisonment shall be not less than 60 days, except that if the person successfully completes a period of probation that includes alcohol and other drug treatment, the period of imprisonment shall be not less than 29 days. A person may be sentenced under this paragraph or under par. (bm) or (cm) or sub. (2j) (bm), (cm), or (cr) or (3r) once in his or her lifetime.

346.65(2)(f) (f)

346.65(2)(f)1. 1. If there was a minor passenger under 16 years of age in the motor vehicle at the time of the violation that gave rise to the conviction under s. 346.63 (1), the person shall be fined not less than $350 nor more than $1,100 and imprisoned for not less than 5 days nor more than 6 months, except as provided in subd. 2.

346.65(2)(f)2. 2. If there was a minor passenger under 16 years of age in the motor vehicle at the time of the violation that gave rise to the conviction under s. 346.63 (1), the applicable minimum and maximum fines and imprisonment under par. (am) 2. to 7. for the conviction are doubled. An offense under s. 346.63 (1) that subjects a person to a penalty under par. (am) 3., 4., 5., 6., or 7. when there is a minor passenger under 16 years of age in the motor vehicle is a felony and the place of imprisonment shall be determined under s. 973.02.

346.65(2)(g) (g)

346.65(2)(g)1. 1. If a person convicted had an alcohol concentration of 0.17 to 0.199, the applicable minimum and maximum fines under par. (am) 3. to 5. are doubled.

346.65(2)(g)2. 2. If a person convicted had an alcohol concentration of 0.20 to 0.249, the applicable minimum and maximum fines under par. (am) 3. to 5. are tripled.

346.65(2)(g)3. 3. If a person convicted had an alcohol concentration of 0.25 or above, the applicable minimum and maximum fines under par. (am) 3. to 5. are quadrupled.

346.65(2c) (2c) In sub. (2) (am) 2., 3., 4., 5., 6., and 7., the time period shall be measured from the dates of the refusals or violations that resulted in the revocation or convictions. If a person has a suspension, revocation, or conviction for any offense under a local ordinance or a state statute of another state that would be counted under s. 343.307 (1), that suspension, revocation, or conviction shall count as a prior suspension, revocation, or conviction under sub. (2) (am) 2., 3., 4., 5., 6., and 7.

346.65(2e) (2e) If the court determines that a person does not have the ability to pay the costs and fine or forfeiture imposed under sub. (2) (am), (f), or (g), the court may reduce the costs, fine, and forfeiture imposed and order the person to pay, toward the cost of the assessment and driver safety plan imposed under s. 343.30 (1q) (c), the difference between the amount of the reduced costs and fine or forfeiture and the amount of costs and fine or forfeiture imposed under sub. (2) (am), (f), or (g).

346.65(2g) (2g) 

346.65(2g)(a) (a) In addition to the authority of the court under s. 973.05 (3) (a) to provide that a defendant perform community service work for a public agency or a nonprofit charitable organization in lieu of part or all of a fine imposed under sub. (2) (am) 2., 3., 4., and 5., (f), and (g) and except as provided in par. (ag), the court may provide that a defendant perform community service work for a public agency or a nonprofit charitable organization in lieu of part or all of a forfeiture under sub. (2) (am) 1. or may require a person who is subject to sub. (2) to perform community service work for a public agency or a nonprofit charitable organization in addition to the penalties specified under sub. (2).

346.65(2g)(ag) (ag) If the court determines that a person does not have the ability to pay a fine imposed under sub. (2) (am) 2., 3., 4., or 5., (f), or (g), the court shall require the defendant to perform community service work for a public agency or a nonprofit charitable organization in lieu of paying the fine imposed or, if the amount of the fine was reduced under sub. (2e), in lieu of paying the remaining amount of the fine. Each hour of community service performed in compliance with an order under this paragraph shall reduce the amount of the fine owed by an amount determined by the court.

346.65(2g)(am) (am) Notwithstanding s. 973.05 (3) (b), an order under par. (a) or (ag) may apply only if agreed to by the organization or agency. The court shall ensure that the defendant is provided a written statement of the terms of the community service order and that the community service order is monitored. Any organization or agency acting in good faith to which a defendant is assigned pursuant to an order under this subsection has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the defendant. The issuance or possibility of the issuance of a community service order under this subsection does not entitle an indigent defendant who is subject to sub. (2) (am) 1. to representation by counsel under ch. 977.

346.65(2g)(b) (b) The court may require a person ordered to perform community service work under par. (a) or (ag), or under s. 973.05 (3) (a) if that person’s fine resulted from violating s. 346.63 (2), 940.09 (1) or 940.25, to participate in community service work that demonstrates the adverse effects of substance abuse or of operating a vehicle while under the influence of an intoxicant or other drug, including working at a treatment facility approved under s. 51.45, an emergency room of a general hospital or a driver awareness program under s. 346.637. The court may order the person to pay a reasonable fee, based on the person’s ability to pay, to offset the cost of establishing, maintaining and monitoring the community service work ordered under this paragraph. If the opportunities available to perform community service work are fewer in number than the number of defendants eligible under this subsection, the court shall, when making an order under this paragraph, give preference to defendants who were under 21 years of age at the time of the offense. All provisions of par. (am) apply to any community service work ordered under this paragraph.

346.65(2g)(c) (c) If there was a minor passenger under 16 years of age in the motor vehicle or commercial motor vehicle at the time of the violation that gave rise to the conviction, the court may require a person ordered to perform community service work under par. (a) or (ag), under s. 973.05 (3) (a) if that person’s fine resulted from violating s. 346.63 (2), (5) (a) or (6) (a), 940.09 (1) or 940.25, or under s. 973.05 (3) (a) if that person’s fine resulted from violating s. 346.63 (1) (am) and the motor vehicle that the person was driving or operating was a commercial motor vehicle, to participate in community service work that benefits children or that demonstrates the adverse effects on children of substance abuse or of operating a vehicle while under the influence of an intoxicant or other drug. The court may order the person to pay a reasonable fee, based on the person’s ability to pay, to offset the cost of establishing, maintaining and monitoring the community service work ordered under this paragraph.

346.65(2g)(d) (d) With respect to imprisonment under sub. (2) (am) 2., the court shall ensure that the person is imprisoned for not less than 5 days or ordered to perform not less than 30 days of community service work under s. 973.03 (3) (a).

346.65(2i) (2i) In addition to the authority of the court under sub. (2g) and s. 973.05 (3) (a), the court may order a defendant subject to sub. (2), or a defendant subject to s. 973.05 (3) (a) who violated s. 346.63 (2), 940.09 (1), or 940.25, to visit a site that demonstrates the adverse effects of substance abuse or of operating a vehicle while under the influence of an intoxicant or other drug, including a treatment facility approved under s. 51.45 or an emergency room of a general hospital in lieu of part or all of any forfeiture imposed or in addition to any penalty imposed. The court may order the defendant to pay a reasonable fee, based on the person’s ability to pay, to offset the costs of establishing, maintaining, and monitoring the visits ordered under this subsection. The court may order a visit to the site only if agreed to by the person responsible for the site. If the opportunities available to visit sites under this subsection are fewer than the number of defendants eligible for a visit, the court shall, when making an order under this subsection, give preference to defendants who were under 21 years of age at the time of the offense. The court shall ensure that the visit is monitored. A visit to a site may be ordered for a specific time and a specific day to allow the defendant to observe victims of vehicle accidents involving intoxicated drivers. If it appears to the court that the defendant has not complied with the court order to visit a site or to pay a reasonable fee, the court may order the defendant to show cause why he or she should not be held in contempt of court. Any organization or agency acting in good faith to which a defendant is assigned pursuant to an order under this subsection has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the defendant. The issuance or possibility of the issuance of an order under this subsection does not entitle an indigent defendant who is subject to sub. (2) (am) 1. to representation by counsel under ch. 977.

346.65(2j) (2j) 

346.65(2j)(am) (am) Any person violating s. 346.63 (5):

346.65(2j)(am)1. 1. Shall forfeit not less than $150 nor more than $300 except as provided in subd. 2. or 3. or par. (d).

346.65(2j)(am)2. 2. Except as provided in pars. (bm) and (d), shall be fined not less than $300 nor more than $1,000 and imprisoned for not less than 5 days nor more than 6 months if the number of prior convictions under ss. 940.09 (1) and 940.25 in the person’s lifetime, plus the total number of other convictions, suspension, and revocations counted under s. 343.307 (2) within a 10-year period, equals 2.

346.65(2j)(am)3. 3. Except as provided in pars. (cm), (cr), and (d), shall be fined not less than $600 nor more than $2,000 and imprisoned for not less than 45 days nor more than one year in the county jail if the number of convictions under ss. 940.09 (1) and 940.25 in the person’s lifetime, plus the total number of other convictions, suspensions, and revocations counted under s. 343.307 (2), equals 3 or more.

346.65(2j)(bm) (bm) In any county that opts to offer a reduced minimum period of imprisonment for the successful completion of a probation period that includes alcohol and other drug treatment, if the number of convictions under ss. 940.09 (1) and 940.25 in the person’s lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1) within a 10-year period, equals 2, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one, the fine shall be the same as under par. (am) 2., but the period of imprisonment shall be not less than 5 days, except that if the person successfully completes a period of probation that includes alcohol and other drug treatment, the period of imprisonment shall be not less than 5 nor more than 7 days. A person may be sentenced under this paragraph or under par. (cm) or (cr) or sub. (2) (bm), (cm), or (dm) or (3r) once in his or her lifetime.

346.65(2j)(cm) (cm) In any county that opts to offer a reduced minimum period of imprisonment for the successful completion of a probation period that includes alcohol and other drug treatment, if the number of convictions under ss. 940.09 (1) and 940.25 in the person’s lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1) equals 3, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one, the fine shall be the same as under par. (am) 3., but the period of imprisonment shall be not less than 45 days, except that if the person successfully completes a period of probation that includes alcohol and other drug treatment, the period of imprisonment shall be not less than 14 days. A person may be sentenced under this paragraph or under par. (bm) or (cr) or sub. (2) (bm), (cm), or (dm) or (3r) once in his or her lifetime.