What is the penalty for the third drunk driving charge?
Full Question:
I would like to knowwhat is the penalty for the third drunk driving. I am asking this question for a friend.
10/05/2007 |
Category: Criminal » Sentences |
State: Wisconsin |
#9722
Answer:
The applicable Wisconsin statutes are as follows:
346.62 Reckless driving.
(1) In this section:
(a) "Bodily harm" has the meaning designated in s. 939.22 (4).
(b) "Great bodily harm" has the meaning designated in s. 939.22 (14).
(c) "Negligent" has the meaning designated in s. 939.25 (2).
(d) "Vehicle" has the meaning designated in s. 939.22 (44), except that
for purposes of sub. (2m) "vehicle" has the meaning given in s. 340.01
(74).
(2) No person may endanger the safety of any person or property by the
negligent operation of a vehicle.
(2m) No person may recklessly endanger the safety of any person by
driving a vehicle on or across a railroad crossing in violation of s.
346.44 (1) or through, around or under any crossing gate or barrier at a
railroad crossing in violation of s. 346.44 (2).
(3) No person may cause bodily harm to another by the negligent operation
of a vehicle.
(4) No person may cause great bodily harm to another by the negligent
operation of a vehicle.
346.63 Operating under influence of intoxicant or other drug.
(1) No person may drive or operate a motor vehicle while:
(a) Under the influence of an intoxicant, a controlled substance, a
controlled substance analog or any combination of an intoxicant, a
controlled substance and a controlled substance analog, under the influence
of any other drug to a degree which renders him or her incapable of safely
driving, or under the combined influence of an intoxicant and any other
drug to a degree which renders him or her incapable of safely driving; or
(am) The person has a detectable amount of a restricted controlled
substance in his or her blood.
(b) The person has a prohibited alcohol concentration.
(c) A person may be charged with and a prosecutor may proceed upon a
complaint based upon a violation of any combination of par. (a), (am), or
(b) for acts arising out of the same incident or occurrence. If the person
is charged with violating any combination of par. (a), (am), or (b), the
offenses shall be joined. If the person is found guilty of any combination
of par. (a), (am), or (b) for acts arising out of the same incident or
occurrence, there shall be a single conviction for purposes of sentencing
and for purposes of counting convictions under ss. 343.30 (1q) and 343.305.
Paragraphs (a), (am), and (b) each require proof of a fact for conviction
which the others do not require.
(d) In an action under par. (am) 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.
(2)(a) It is unlawful for any person to cause injury to another person by
the operation of a vehicle while:
1. Under the influence of an intoxicant, a controlled substance, a
controlled substance analog or any combination of an intoxicant, a
controlled substance and a controlled substance analog, under the influence
of any other drug to a degree which renders him or her incapable of safely
driving, or under the combined influence of an intoxicant and any other
drug to a degree which renders him or her incapable of safely driving; or
2. The person has a prohibited alcohol concentration.
3. The person has a detectable amount of a restricted controlled
substance in his or her blood.
(am) A person may be charged with and a prosecutor may proceed upon a
complaint based upon a violation of any combination of par. (a) 1., 2., or
3. for acts arising out of the same incident or occurrence. If the person
is charged with violating any combination of par. (a) 1., 2., or 3. in the
complaint, the crimes shall be joined under s. 971.12. If the person is
found guilty of any combination of par. (a) 1., 2., or 3. for acts arising
out of the same incident or occurrence, there shall be a single conviction
for purposes of sentencing and for purposes of counting convictions under
ss. 343.30 (1q) and 343.305. Paragraph (a) 1., 2., and 3. each require
proof of a fact for conviction which the others do not require.
(b)1. In an action under this subsection, 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, a controlled
substance, a controlled substance analog or a combination thereof, under
the influence of any other drug to a degree which renders him or her
incapable of safely driving, or under the combined influence of an
intoxicant and any other drug to a degree which renders him or her
incapable of safely driving, did not have a prohibited alcohol
concentration described under par. (a) 2., or did not have a detectable
amount of a restricted controlled substance in his or her blood.
2. In an action under par. (a) 3. 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.
(2m) If a person has not attained the legal drinking age, as defined in
s. 125.02 (8m), the person may not drive or operate a motor vehicle while
he or she has an alcohol concentration of more than 0.0 but not more than
0.08. One penalty for violation of this subsection is suspension of a
person's operating privilege under s. 343.30 (1p). The person is eligible
for an occupational license under s. 343.10 at any time. If a person
arrested for a violation of this subsection refuses to take a test under s.
343.305, the refusal is a separate violation and the person is subject to
revocation of the person's operating privilege under s. 343.305 (10) (em).
(3) In this section:
(a) "Drive" means the exercise of physical control over the speed and
direction of a motor vehicle while it is in motion.
(b) "Operate" means the physical manipulation or activation of any of the
controls of a motor vehicle necessary to put it in motion.
(4) If a person is convicted under sub. (1) or a local ordinance in
conformity therewith, or sub. (2), the court shall proceed under s. 343.30
(1q).
(5)(a) No person may drive or operate a commercial motor vehicle while
the person has an alcohol concentration of 0.04 or more but less than
0.08.
(b) A person may be charged with and a prosecutor may proceed upon a
complaint based on a violation of par. (a) or sub. (1) (a) or both for acts
arising out of the same incident or occurrence. If the person is charged
with violating both par. (a) and sub. (1) (a), the offenses shall be
joined. Paragraph (a) and sub. (1) (a) each require proof of a fact for
conviction which the other does not require. If the person is found guilty
of violating both par. (a) and sub. (1) (a) for acts arising out of the
same incident or occurrence, there shall be a single conviction for
purposes of sentencing and for purposes of counting convictions. Each
conviction shall be reported to the department and counted separately for
purposes of suspension or revocation of the operator's license and
disqualification.
(6)(a) No person may cause injury to another person by the operation of a
commercial motor vehicle while the person has an alcohol concentration of
0.04 or more but less than 0.08.
(b) A person may be charged with and a prosecutor may proceed upon a
complaint based upon a violation of par. (a) or sub. (2) (a) 1. or both for
acts arising out of the same incident or occurrence. If the person is
charged with violating both par. (a) and sub. (2) (a) 1. in the complaint,
the crimes shall be joined under s. 971.12. If the person is found guilty
of violating both par. (a) and sub. (2) (a) 1. for acts arising out of the
same incident or occurrence, there shall be a single conviction for
purposes of sentencing and for purposes of counting convictions. Paragraph
(a) and sub. (2) (a) 1. each require proof of a fact for conviction which
the other does not require.
(c) Under par. (a), the person charged has a defense if it appears by a
preponderance of the evidence that the injury would have occurred even if
he or she had not been under the influence of an intoxicant, a controlled
substance, a controlled substance analog or a combination thereof, under
the influence of any other drug to a degree which renders him or her
incapable of safely driving, or under the combined influence of an
intoxicant and any other drug to a degree which renders him or her
incapable of safely driving or did not have an alcohol concentration
described under par. (a).
(7)(a) No person may drive or operate or be on duty time with respect
to a commercial motor vehicle under any of the following circumstances:
1. While having an alcohol concentration above 0.0.
2. Within 4 hours of having consumed or having been under the influence
of an intoxicating beverage, regardless of its alcohol content.
3. While possessing an intoxicating beverage, regardless of its alcohol
content. This subdivision does not apply to possession of an intoxicating
beverage if the beverage is unopened and is manifested and transported as
part of a shipment.
(b) A person may be charged with and a prosecutor may proceed upon
complaints based on a violation of this subsection and sub. (1) (a) or (b)
or both, or sub. (1) (a) or (5) (a), or both, for acts arising out of the
same incident or occurrence. If the person is charged with violating this
subsection and sub. (1) or (5), the proceedings shall be joined. If the
person is found guilty of violating both this subsection and sub. (1) or
(5) for acts arising out of the same incident or occurrence, there shall be
a single conviction for purposes of sentencing and for purposes of counting
convictions. This subsection and subs. (1) and (5) each require proof of a
fact for conviction which the others do not require. Each conviction shall
be reported to the department and counted separately for purposes of
suspension or revocation of the operator's license and disqualification.
346.65 Penalty for violating sections 346.62 to 346.64.
(1) Except as provided in sub. (5m), any person who violates s. 346.62
(2):
(a) May be required to forfeit not less than $25 nor more than $200,
except as provided in par. (b).
(b) May be fined not less than $50 nor more than $500 or imprisoned for
not more than one year in the county jail or both if the total of
convictions under s. 346.62 (2) or a local ordinance in conformity
therewith or a law of a federally recognized American Indian tribe or band
in this state in conformity with s. 346.62 (2) equals 2 or more in a 4-year
period. The 4-year period shall be measured from the dates of the
violations which resulted in the convictions.
(2)(am) Any person violating s. 346.63 (1):
1. Shall forfeit not less than $150 nor more than $300, except as
provided in subds. 2. to 5. and par. (f).
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.
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 30
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.
4. Except as provided in pars. (f) and (g), shall be fined not less than
$600 nor more than $2,000 and imprisoned for not less than 60 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 4, except that suspensions, revocations or convictions arising
out of the same incident or occurrence shall be counted as one.
5. Except as provided in pars. (f) and (g), is guilty of a Class H felony
and shall be fined not less than $600 and imprisoned for not less 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), equals 5 or more, except
that suspensions, revocations or convictions arising out of the same
incident or occurrence shall be counted as one.
(bm) In Winnebago County, 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. (b) [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 sub. (2j) (bm) or
(cm) or (3r) once in his or her lifetime.
NOTE: The correct cross-reference is shown in brackets. Corrective
legislation is pending.
(cm) In Winnebago County, 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 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. (c) [par. (am) 3.], but the period of imprisonment shall be not less
than 30 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 10 days. A person may be sentenced
under this paragraph or under par. (bm) or sub. (2j) (bm) or (cm) or (3r)
once in his or her lifetime.
NOTE: The correct cross-reference is shown in brackets. Corrective
legislation is pending.
(f) 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 forfeitures, fines, or
imprisonment under par. (am) for the conviction are doubled. An offense
under s. 346.63 (1) that subjects a person to a penalty under par. (am) 3.,
4., or 5. 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.
(g)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.
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.
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.
(2c) In sub. (2) (am) 2., 3., 4., and 5., 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., and 5.
(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).
(2g)(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).
(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.
(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.
(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 an alcoholism 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.
(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.
(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).
(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 an alcoholism 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.
(2j)(am) Any person violating s. 346.63 (5):
1. Shall forfeit not less than $150 nor more than $300 except as provided
in subd. 2. or 3. or par. (d).
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.
3. Except as provided in pars. (cm) and (d), shall be fined not less than
$600 nor more than $2,000 and imprisoned for not less than 30 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.
(bm) In Winnebago County, 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. (b) [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 sub. (2) (bm) or
(cm) or (3r) once in his or her lifetime.
NOTE: The correct cross-reference is shown in brackets. Corrective
legislation is pending.
(cm) In Winnebago County, 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 3 or more, 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. (c) [par.
(am) 3.], but the period of imprisonment shall be not less than 30 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 10 days. A person may be sentenced under this paragraph or
under par. (bm) or sub. (2) (bm) or (cm) or (3r) once in his or her
lifetime.
NOTE: The correct cross-reference is shown in brackets. Corrective
legislation is pending.
(d) If there was a minor passenger under 16 years of age in the
commercial motor vehicle at the time of the violation that gave rise to the
conviction under s. 346.63 (5), the applicable minimum and maximum
forfeitures, fines, or imprisonment under par. (am) 1., 2., or 3. for the
conviction are doubled. An offense under s. 346.63 (5) that subjects a
person to a penalty under par. (am) 3. when there is a minor passenger
under 16 years of age in the commercial motor vehicle is a felony and the
place of imprisonment shall be determined under s. 973.02.
(2m)(a) In imposing a sentence under sub. (2) for a violation of s.
346.63 (1) (am) or (b) or (5) or a local ordinance in conformity
therewith, the court shall review the record and consider the aggravating
and mitigating factors in the matter. If the amount of alcohol in the
person's blood or urine or the amount of a restricted controlled substance
in the person's blood is known, the court shall consider that amount as a
factor in sentencing. The chief judge of each judicial administrative
district shall adopt guidelines, under the chief judge's authority to
adopt local rules under SCR 70.34, for the consideration of aggravating
and mitigating factors.
(b) The court shall consider a report submitted under s. 85.53 (2) (d)
when imposing a sentence under sub. (2), (2q) or (3m).
(2q) Any person violating s. 346.63 (2m) shall forfeit $200. 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 346.63 (2m), the
forfeiture is $400.
(2r)(a) In addition to the other penalties provided for violation of s.
346.63, a judge may order a defendant to pay restitution under s. 973.20.
(b) This subsection is applicable in actions concerning violations of
local ordinances in conformity with s. 346.63.
(2u)(a) Any person violating s. 346.63 (7) shall forfeit $10.
(b) Upon his or her arrest for a violation of s. 346.63 (7), a person
shall be issued an out-of-service order for a 24-hour period by the
arresting officer under s. 343.305 (7) (b) or (9) (am).
(c) If a person arrested for a violation of s. 346.63 (7) refuses to take
a test under s. 343.305, the refusal is a separate violation and the person
is subject to revocation of the person's operating privilege under s.
343.305 (10) (em).
(2w) In determining the number of prior convictions for purposes of sub.
(2j), the court shall count convictions under ss. 940.09 (1) and 940.25 in
the person's lifetime, plus other suspensions, revocations and convictions
counted under s. 343.307 (2). Revocations, suspensions and convictions
arising out of the same incident or occurrence shall be counted as one. The
time period shall be measured from the dates of the refusals or violations
which resulted in the revocation, suspension or convictions. If a person
has a conviction under s. 940.09 (1) or 940.25 in the person's lifetime, or
another suspension, revocation or conviction for any offense that is
counted under s. 343.307 (2), that suspension, revocation or conviction
shall count as a prior suspension, revocation or conviction under this
section.
(3) Except as provided in sub. (5m), any person violating s. 346.62 (3)
shall be fined not less than $300 nor more than $2,000 and may be
imprisoned for not less than 30 days nor more than one year in the county
jail.
(3m) Except as provided in sub. (3r), any person violating s. 346.63 (2)
or (6) shall be fined not less than $300 nor more than $2,000 and may be
imprisoned for not less than 30 days nor more than one year in the county
jail. 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 (2) or (6), the offense is a felony, the applicable minimum and
maximum fines or periods of imprisonment for the conviction are doubled and
the place of imprisonment shall be determined under s. 973.02.
(3r) In Winnebago County, any person violating s. 346.63 (2) or (6) shall
be fined the same as under sub. (3m), but the period of imprisonment shall
be not less than 30 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 15 days. 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 (2) or (6), the
offense is a felony, the applicable minimum and maximum fines or periods of
imprisonment for the conviction are doubled and the place of imprisonment
shall be determined under s. 973.02. A person may be sentenced under this
subsection or under sub. (2) (bm) or (cm) or (2j) (bm) or (cm) once in his
or her lifetime.
(4) Any person violating s. 346.64 may be fined not less than $50 nor
more than $500 or imprisoned not more than 6 months or both.
(4m) Except as provided in sub. (5m), any person violating s. 346.62 (2m)
shall forfeit not less than $300 nor more than $1,000.
(4r)(a) If a court imposes a forfeiture under sub. (4m) for a violation
of s. 346.62 (2m), the court shall also impose a railroad crossing
improvement surcharge under ch. 814 equal to 50% of the amount of the
forfeiture.
(b) If a forfeiture is suspended in whole or in part, the railroad
crossing improvement surcharge shall be reduced in proportion to the
suspension.
(c) If any deposit is made for an offense to which this subsection
applies, the person making the deposit shall also deposit a sufficient
amount to include the railroad crossing improvement surcharge under this
subsection. If the deposit is forfeited, the amount of the railroad
crossing improvement surcharge shall be transmitted to the secretary of
administration under par. (d). If the deposit is returned, the amount of
the railroad crossing improvement surcharge shall also be returned.
(d) The clerk of the circuit court shall collect and transmit to the
county treasurer the railroad crossing improvement surcharge as required
under s. 59.40 (2) (m). The county treasurer shall then pay the secretary
of administration as provided in s. 59.25 (3) (f) 2. The secretary of
administration shall deposit all amounts received under this paragraph in
the transportation fund to be appropriated under s. 20.395 (2) (gj).
(5) Except as provided in sub. (5m), any person violating s. 346.62 (4)
is guilty of a Class I felony.
(5m) If an operator of a vehicle violates s. 346.62 (2) to (4) where
persons engaged in work in a highway maintenance or construction area or
in a utility work area are at risk from traffic, any applicable minimum and
maximum forfeiture or fine specified in sub. (1), (3), (4m) or (5) for the
violation shall be doubled.
(6)(a)1. The court may order a law enforcement officer to seize the motor
vehicle used in the violation or improper refusal and owned by the person
whose operating privilege is revoked under s. 343.305 (10) or who committed
a violation of s. 346.63 (1) (a), (am), or (b) or (2) (a) 1., 2., or 3.,
940.09 (1) (a), (am), (b), (c), (cm), or (d), or 940.25 (1) (a), (am), (b),
(c), (cm), or (d) if the person whose operating privilege is revoked under
s. 343.305 (10) or who is convicted of the violation has 2 or more prior
suspensions, revocations, or convictions, counting convictions under ss.
940.09 (1) and 940.25 in the person's lifetime, plus other convictions,
suspensions, or revocations counted under s. 343.307 (1). The court may
not order a motor vehicle seized if the court enters an order under s.
343.301 to immobilize the motor vehicle or equip the motor vehicle with an
ignition interlock device or if seizure would result in undue hardship or
extreme inconvenience or would endanger the health and safety of a person.
2m. A person who owns a motor vehicle subject to seizure under this
paragraph shall surrender to the clerk of circuit court the certificate of
title issued under ch. 342 for the motor vehicle that is subject to
seizure. The person shall comply with this subdivision within 5 working
days after receiving notification of this requirement from the district
attorney. When a district attorney receives a copy of a notice of intent to
revoke the operating privilege under s. 343.305 (9) (a) of a person who has
2 or more prior convictions, suspensions or revocations, counting
convictions under ss. 940.09 (1) and 940.25 in the person's lifetime, plus
other convictions, suspensions or revocations counted under s. 343.307 (1),
or when a district attorney notifies the department of the filing of a
criminal complaint against a person under s. 342.12 (4) (a), the district
attorney shall notify the person of the requirement to surrender the
certificate of title to the clerk of circuit court. The notification shall
include the time limits for that surrender, the penalty for failure to
comply with the requirement and the address of the clerk of circuit court.
The clerk of circuit court shall promptly return the certificate of title
surrendered to the clerk of circuit court under this subdivision after
stamping the certificate of title with the notation "Per section 346.65 (6)
of the Wisconsin statutes, ownership of this motor vehicle may not be
transferred without prior court approval". Any person failing to surrender
a certificate of title as required under this subdivision shall forfeit not
more than $500.
3. The court shall notify the department, in a form and manner prescribed
by the department, that an order to seize a motor vehicle has been entered.
The registration records of the department shall reflect that the order has
been entered against the vehicle and remains unexecuted. Any law
enforcement officer may execute that order and shall transfer any motor
vehicle ordered seized to the law enforcement agency that was originally
ordered to seize the vehicle based on the information provided by the
department. The law enforcement agency shall notify the department when an
order has been executed under this subdivision and the department shall
amend its vehicle registration records to reflect that notification.
4. The following motor vehicles are not subject to seizure and forfeiture
under this subsection:
a. A motor vehicle used by any person as a common carrier in the
transaction of business as a common carrier unless the owner or other
person in charge of the motor vehicle had knowledge of or consented to the
commission of the violation or refusal.
b. A commercial motor vehicle used by any person unless the owner or
other person in charge of the commercial motor vehicle had knowledge of or
consented to the commission of the violation or refusal.
c. A rented or leased motor vehicle used by a person other than the owner
of the motor vehicle unless the violation or refusal was committed with the
knowledge or consent of the owner of the motor vehicle.
(b) Within 10 days after seizing a motor vehicle under par. (a), the law
enforcement agency that seized the vehicle shall provide notice of the
seizure by certified mail to the owner of the motor vehicle and to all
lienholders of record. The notice shall set forth the year, make, model and
serial number of the motor vehicle, where the motor vehicle is located, the
reason for the seizure, and the forfeiture procedure if the vehicle was
seized. When a motor vehicle is seized under this section, the law
enforcement agency that seized the vehicle shall place the motor vehicle in
a secure place subject to the order of the court.
(c) The district attorney of the county where the motor vehicle was
seized, or where the owner improperly refused to take the test under s.
343.305 or violated s. 346.63 (1) (a), (am), or (b) or (2) (a) 1., 2., or
3., 940.09 (1) (a), (am), (b), (c), (cm), or (d) or 940.25 (1) (a), (am),
(b), (c), (cm), or (d), shall commence an action to forfeit the motor
vehicle within 30 days after the motor vehicle is seized. The action shall
name the owner of the motor vehicle and all lienholders of record as
parties. The forfeiture action shall be commenced by filing a summons,
complaint and affidavit of the law enforcement agency with the clerk of
circuit court. Upon service of an answer, the action shall be set for
hearing within 60 days after the service of the answer. If no answer is
served or no issue of law or fact joined and the time for that service or
joining of issues has expired, the court may render a default judgment as
provided in s. 806.02.
(d) At the hearing set under par. (c), the state has the burden of
proving to a reasonable certainty by the greater weight of the credible
evidence that the motor vehicle seized under par. (a) 1. is a motor vehicle
used in the violation or the improper refusal and owned by a person who
committed a violation of s. 346.63 (1) (a), (am), or (b) or (2) (a) 1., 2.,
or 3., 940.09 (1) (a), (am), (b), (c), (cm), or (d) or 940.25 (1) (a),
(am), (b), (c), (cm), or (d) and that the person had 2 or more prior
convictions, suspensions or revocations, counting convictions under ss.
940.09 (1) and 940.25 in the person's lifetime, plus other convictions,
suspensions or revocations counted under s. 343.307 (1). If the state
fails to meet the burden of proof required under this paragraph, the motor
vehicle shall be returned to the owner upon the payment of storage costs.
(e) If, upon default or after a hearing, the court determines that the
motor vehicle is forfeited to the state, the law enforcement agency that
seized the motor vehicle shall dispose of the motor vehicle by sealed bid
or auction sale following the procedure under s. 342.40 (3) (c), except as
provided in par. (em). The law enforcement agency that seized the motor
vehicle shall distribute 50% of the proceeds of the sale in the following
order:
1. To pay the costs of the sale and of the seizure and storage of the
motor vehicle.
2. To pay the law enforcement agency that arrested the violator for the
costs of the arrest, investigation and prosecution.
3. To pay the district attorney's costs of prosecution.
4. To pay the court costs related to the prosecution.
(em) If there is a perfected security interest in the motor vehicle, the
law enforcement officer shall transfer the motor vehicle to the lienholder
having the primary perfected security interest for sale following the
procedure under s. 342.40 (3) (c). The lienholder shall distribute the
proceeds of the sale in the following order:
1. To pay the primary lienholder for the amount of the lien, plus costs
incurred in selling the vehicle.
2. To pay any other lienholder of record for the amount of the lien.
3. To pay any balance remaining to the law enforcement officer for
distribution under pars. (e), (f) and (g).
(f) If a motor vehicle forfeited and sold under this subsection is owned
in part by a person other than the person who committed the violation or
refusal under par. (a), any moneys remaining from the sale, after making
any payment to the lienholders under par. (em) and as provided in par. (e)
1. to 4., shall be paid to that person to the extent of the person's
interest in the motor vehicle.
(g) Any balance remaining from the proceeds of the sale of the motor
vehicle after the distribution under par. (f) shall be deposited in the
school fund.
(h) After a determination is made that a motor vehicle seized is not
subject to forfeiture, the agency having custody of the motor vehicle shall
take reasonable steps to notify the owner or other person in charge of the
motor vehicle of the location of the motor vehicle and of his or her right
to take possession of the motor vehicle.
(k) Except as provided in par. (km), no person may transfer ownership of
any motor vehicle that is subject to seizure under this subsection or make
application for a new certificate of title under s. 342.18 for the motor
vehicle unless the court determines that the transfer is in good faith and
not for the purpose of or with the effect of defeating the purposes of this
subsection. The department may cancel a title or refuse to issue a new
certificate of title in the name of the transferee as owner to any person
who violates this paragraph.
(km) If a person purchases a motor vehicle in good faith and without
knowledge that the motor vehicle was subject to immobilization or seizure
or to equipping with an ignition interlock device under this subsection and
the department has no valid reason for not issuing a certificate of title
other than the prohibition under par. (k), the department shall issue a new
certificate of title in the name of the person requesting the new
certificate of title if at the time of the purchase of the motor vehicle
the certificate of title did not contain the notation stamped on the
certificate of title by the clerk of circuit court under par. (a) 2m. and
if the person submits the affidavit required under s. 342.12 (4) (c) 1. c.
(7) A person convicted under sub. (2) (am) 2., 3., 4., or 5. or (2j) (am)
2. or 3. shall be required to remain in the county jail for not less than a
48-consecutive-hour period.
(8) There shall be a pilot project in Winnebago County providing for
alternative penalties under this section, which penalties shall be as
specified in subs. (2) (bm) and (cm), (2j) (bm) and (cm), and (3r).