Drugged Driving

A person is guilty of DUI in Wisconsin if a motor vehicle operator is under the influence of an intoxicant to the degree that he or she is incapable of driving safely; OR a person drives or operates a motor vehicle with a detectable amount of a restricted controlled substance in their blood*. Wis. Stat. Ann. §§ 346.63 (1)(a)-(am) (West 2010). *driving with detectable restricted controlled substance in blood (per se law) Id. § 346.63 (1)(am).

Wisconsin DUI law prohibits any controlled substance other than THC and associated inert metabolites. However, Wisconsin does test for Delta-9- THC, an active ingredient in cannabis which passes through the body much faster than do other inert metabolites of cannabis.

Affirmative Defense

A valid affirmative defense exists if at the time of the incident or occurrence, violator had a valid prescription for substance. Id. § 346.63(1)(d).

NOTE: Physicians recommendation to use cannabis is NOT a prescription.

Implied Consent

• Any person who operates a motor vehicle in Wisconsin is deemed to have given non-expressed consent to one or more tests of their breath, blood, or urine for the purposes of determining the presence or quantity of alcohol or drugs in the operator’s body. Id. § 343.605(2).
• Prior to arrest, an officer may request a breath sample for preliminary screening. The result can be used deciding whether a person should be arrested for DUI. The results are not admissible in any legal proceeding – except to show probable cause for the arrest, or to prove that the officer properly requested a chemical test. The general penalty provisions for refusal of chemical test do not apply to a refusal to take a preliminary breath screening test. Id. § 343.303.
• Failure to submit to chemical testing will result in a one (1) year license suspension beginning at the time of the refusal. Id. § 343.305(9), (10)(b)(2). Anyone who wishes to appeal the suspension may, but must move to do so within 10 days. Id. § 343.305(9).
• Persons who refuse testing will be ordered to comply with an assessment and driver safety plan. Individuals may also be ordered to participate in a drug substance abuse assessment or treatment. Id. §§ 343.305(10)(c)-(e).
• Fact of a defendant’s refusal to submit to test for intoxication may be introduced at criminal prosecution for substantive drunk driving offense as means of showing consciousness of guilt. State v Zielke, 403 NW2d 427 (1987).

Wisconsin Drugged Driving Penalties

• First offense Misdemeanor –fine of not less than $150, nor more than $300. Id. § 346.65(2)(am)(1).
• Second offense (within 10 years) Misdemeanor – fine of not less than $350, nor more than $1,100; imprisonment of not less than 5 days, nor more than 6 months; mandatory revocation of license for 12-18 months. Id. § 346.65(2)(2); Id. § 346.65(2)(am)(2).
• Third offense (within lifetime) Misdemeanor – fine of not less than $600, nor more than $2,000; imprisonment for not less than 30 days (mandatory minimum), nor more than 1 year; mandatory revocation of license for 2-3 years. Id. § 346.65(2)(am)(3).
• Fourth offense (within lifetime) Misdemeanor – fine of not less than$600, nor more than $2,000; imprisonment for not less than 60 days (mandatory minimum), nor more than 1 year; mandatory license revocation for 2-3 years. Id. § 346.65(2)(am)(4).
• Fourth offense (w/i 5 years of previous offense) Class H Felony – fine of not less than $600; imprisonment of not less than 6 months. Id. § 346.65(2)(am)(4m).
• Fifth & Sixth offense (within lifetime) Class H Felony – fine of not less than $600; imprisonment of not less than 6 months; fine of no more than $10,000, imprisonment of no more than 6 years, or both. Id. § 346.65(2)(am)(5); Id. § 939.50(h).
• Seventh, Eighth, & Ninth offense Class G Felony – imprisonment for not less than 3 years; fine of no more than $25,000, imprisonment for no more than 10 years. Id. § 346.65(2)(am)(6); Id. § 939.50(g).
• Tenth and subsequent offense Class F Felony – imprisonment for not less than 4 years; fine of no more than $25,000, imprisonment for no more than12 years and 6 months, or both. Id. § 346.65(2)(am)(7); Id. § 939.50(f).

Other Penalties & Penalty Enhancers

• If a passenger was under 16 years of age, offender is guilty of a Felony and all minimum and maximum fines and imprisonment (all penalties) are doubled. Id. § 346.65(2)(f)(2).
• If there is a passenger under 16 years of age in the vehicle offender may face increased penalties. Id. § 346.65(2b)(f).
• If DUI happens in a construction area offender can face increased penalties. Id. § 346.65(5m).
• Multiple convictions can lead to vehicle seizure and forfeiture. Id. § 346.65.

Sobriety Checkpoints

In Wisconsin, sobriety checkpoints are prohibited statutes.

• A police officer, sheriff, deputy sheriff, traffic officer or motor vehicle inspector may not stop or inspect a vehicle solely to determine compliance with a statute unless the police officer, sheriff, deputy sheriff, traffic officer or motor vehicle inspector has reasonable cause to believe that a violation of a statute has been committed. Id. § 349.02(2)(a).

Case Law

City of Milwaukee v. Johnston 124 N.W.2d 690 (1963) — Evaluation of opinion testimony of police officer that motorist was under the influence of intoxicants was for trier of fact.

County of Jefferson v. Renz, 588 N.W.2d 267 (1998) – In order to make motorist submit to a preliminary breath test (PBT) requires the same level of probable cause as an arrest for DUI.