WI Stat § 346.63 (2021)
2021 Wisconsin Statutes & Annotations|Chapter 346 - Rules of the road.|346.63 - Operating under influence of intoxicant or other drug.

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; or2. 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.History:  1971 c. 40 s. 93; 1971 c. 219; 1977 c. 193; 1981 c. 20, 184; 1983 a. 74, 459, 521; 1985 a. 32, 337; 1987 a. 3, 27; 1989 a. 105, 275; 1991 a. 277; 1995 a. 436, 448; 1997 a. 27, 252; 1999 a. 85; 2003 a. 30, 97; 2013 a. 224; 2015 a. 371.NOTE:  For legislative intent see chapter 20, laws of 1981, section 2051 (13).It is no defense that the defendant is an alcoholic. State v. Koller, 60 Wis. 2d 755, 210 N.W.2d 770 (1973).Evidence that the defendant, found asleep in parked car, had driven to the parking place 14 minutes earlier was sufficient to support a conviction for operating a car while intoxicated. Monroe County v. Kruse, 76 Wis. 2d 126, 250 N.W.2d 375 (1977).Intent to drive or move a motor vehicle is not required to find an accused guilty of operating the vehicle while under influence of intoxicant. Milwaukee County v. Proegler, 95 Wis. 2d 614, 291 N.W.2d 608 (Ct. App. 1980).The court properly instructed the jury that it could infer from a subsequent breathalyzer reading of .13 percent that the defendant was intoxicated at the time of the stop. Alcohol absorption is discussed. State v. Vick, 104 Wis. 2d 678, 312 N.W.2d 489 (1981).A previous conviction for operating while intoxicated is a penalty enhancer, not an element of the crime. State v. McAllister, 107 Wis. 2d 532, 319 N.W.2d 865 (1982). But as to operating with a prohibited blood alcohol count, see the note to State v. Ludeking, 195 Wis. 2d 132, 536 N.W.2d 392 (Ct. App. 1995), 94-1527.Videotapes of sobriety tests were properly admitted to show the physical manifestation of the defendant driver's intoxication. State v. Haefer, 110 Wis. 2d 381, 328 N.W.2d 894 (Ct. App. 1982).Sub. (1) (b) is not unconstitutionally vague. State v. Muehlenberg, 118 Wis. 2d 502, 347 N.W.2d 914 (Ct. App. 1984).The trial court abused its discretion by excluding from evidence a blood alcohol chart produced by the department of transportation showing the amount of alcohol burned up over time. State v. Hinz, 121 Wis. 2d 282, 360 N.W.2d 56 (Ct. App. 1984).The definitions of “under the influence" in this section and in s. 939.22 are equivalent. State v. Waalen, 130 Wis. 2d 18, 386 N.W.2d 47 (1986).Sub. (1) (b) establishes a per se rule that it is a violation to operate a motor vehicle with a specified breath alcohol content, regardless of the individual's “ partition ratio." The provision is constitutional. State v. McManus, 152 Wis. 2d 113, 447 N.W.2d 654 (1989).First offender OMVWI prosecution is a civil offense, and jeopardy does not attach to prevent a subsequent criminal prosecution. State v. Lawton, 167 Wis. 2d 461, 482 N.W.2d 142 (Ct. App. 1992).Because there is no privilege under s. 905.04 (4) (f) for chemical tests for intoxication, results of a test taken for diagnostic purposes are admissible in an OMVWI trial without patient approval. City of Muskego v. Godec, 167 Wis. 2d 536, 482 N.W.2d 79 (1992).When a municipal court found the defendant guilty of OWI and dismissed a blood alcohol count charge without finding guilt, the defendant's appeal of the OWI conviction under s. 800.14 (1) did not give the circuit court jurisdiction to hear the BAC charge absent an appeal of the dismissal. Town of Menasha v. Bastian, 178 Wis. 2d 191, 503 N.W.2d 382 (Ct. App. 1993).Prior convictions are an element of sub. (1) (b) and evidence of the convictions is required regardless of potential prejudice. State v. Ludeking, 195 Wis. 2d 132, 536 N.W.2d 392 (Ct. App. 1995), 94-1527.Failure to timely notify a person of the right to an alternative blood alcohol test does not affect the presumption of the validity of a properly given blood test and is not grounds for suppressing the test results. County of Dane v. Granum, 203 Wis. 2d 252, 551 N.W.2d 859 (Ct. App. 1996), 95-3470.A request to perform field sobriety tests does not convert an otherwise lawful investigatory stop into an arrest requiring probable cause. County of Dane v. Campshure, 204 Wis. 2d 27, 552 N.W.2d 876 (Ct. App. 1996), 96-0474.Immobility of a vehicle does not preclude a finding that the vehicle was being operated. Movement is not necessary for operation. State v. Modory, 204 Wis. 2d 538, 555 N.W.2d 399 (Ct. App. 1996), 96-0241.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.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.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.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.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.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.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.Sub. (1), operating while intoxicated and with a prohibited alcohol count, is not a lesser included offense of sub. (2) (a), injury-related operating while intoxicated and with a prohibited alcohol count. State v. Smits, 2001 WI App 45, 241 Wis. 2d 374, 626 N.W.2d 42, 00-1158.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.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.Probation is permitted under s. 973.09 (1) (d) for 4th and subsequent OWI 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.The analysis of blood taken in a warrantless nonconsensual draw, constitutional under Krajewski, 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.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 prong. State v. Erickson, 2003 WI App 43, 260 Wis. 2d 279, 659 N.W.2d 407, 01-3367.A DOT certified driving transcript was admissible evidence that established the defendant's repeater status as an element of the PAC offense beyond a reasonable doubt. State v. Van Riper, 2003 WI App 237, 267 Wis. 2d 759, 672 N.W.2d 156, 03-0385.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.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.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.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.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.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.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 he or she drove or operated the motor vehicle. A defendant who has two countable OWI convictions at the time of arrest has a BAC limit of 0.08 percent. Accordingly, the state could not properly charge him with a PAC based on a blood alcohol content (BAC) of 0.048 percent. The circuit court properly dismissed the charge of fourth offense PAC although a 3rd 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.A “motor bicycle" as defined in s. 340.01 (30) is a “motor vehicle" as defined in s. 340.01 (35) and 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.In light of Missouri v. McNeely, the holding in  State v. Bohling, 173 Wis. 2d 529, 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.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.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. Weissinger, 2015 WI 42, 362 Wis. 2d 1, 863 N.W.2d 592, 13-1737. 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 content (PAC) as a 7th offense and impose sentence for a 7th 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 6th offense. Because a 7th offense carries a greater range of punishment than does a 6th 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.Upon his or her lawful arrest for drunk driving, a 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.Sub. (2) (am) 2. to 7. (2011) clearly provided for increasing fines and terms of imprisonment based on the number of convictions amassed by the defendant. Sub. (2) (am) 6. provided that an individual convicted of 9 OWIs was 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.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.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).First offense violations of sub. (1) (a) are assimilated under federal Assimilative Crimes Act when committed on federal enclave. U.S. v. Manning, 700 F. Supp. 1001 (W.D. Wis. 1988).Offense definition in Wisconsin's impaired driving statutes. Hammer. 69 MLR 165 (1986).Alcohol and other drugs in Wisconsin drivers: The laboratory perspective. Field. 69 MLR 235 (1986).Effective Use of Expert Testimony in the Defense of Drunk Driving Cases. Olson. WBB Dec. 1981.The new OMVWI law: Wisconsin changes its approach to the problem of drinking and driving: Part I. Hammer. WBB Apr. 1982.The new OMVWI law: Wisconsin changes its approach to the problem of drinking and driving: Part II. Hammer. WBB May 1982.Double Jeopardy: A New Tool in the Arsenal of Drunk Driving Defenses. Sines & Ekman. Wis. Law. Dec. 1995.Wisconsin's New OWI Law. Mishlove & Stuckert. Wis. Law. June 2010.