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Asiento asignado por el Registro Nacional de Asociaciones Español: Grupo 1º, Sección 1ª, Numero 600121 - NIF: G76556646 ...

Wisconsin 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 NOTa 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).

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.

Per Se Drugged Driving Laws

Wisconsin has a zero tolerance per se drugged driving law enacted for cannabis and other controlled substances. Cannabis metabolites are excluded under the law. (Wisconsin State Code, Section 346.63)

Wisconsin's law took effect in January 2004. 

Wisconsin Penalties


Incarceration


Fine

Possession

Any amount (first offense)

misdemeanor

6 months*

$1,000

Any amount (second or subsequent offense)

felony

3.5 years

$10,000

*Conditional discharge available.

Manufacture / Distribution / Delivery / Possession With Intent

Less Than 200 g / 1-4 Plants

felony

3.5 years

$10,000

200-1,000 g / 5-20 plants

felony

6 years

$10,000

1,000-2,500 g / 21-50 plants

felony

10 years

$25,000

2,500-10,000 g / 51-200 plants

felony

12.5 years

$25,000

10,000 g or more / 200 plants or more

felony

15 years

$25,000

Miscellaneous (paraphernalia, license suspensions, drug tax stamps, etc...)

Paraphernalia possession

misdemeanor

30 days

$500

Paraphernalia sale

misdemeanor

90 days

$1,000

Paraphernalia sale to a minor

misdemeanor

9 months

$10,000

For convictions of subsequent offenses the penalties double.
Any conviction causes driver's license suspension for 6 months - 5 years.

 

Details

 

Possession of marijuana is punishable by six months in jail and/or a fine of $1,000 for the first offense, and for second or subsequent offenses (includes ANY prior controlled substance conviction), 3.5 years in jail and a fine of $10,000. Conditional discharge is available for first offenders. Possession within 1,000 feet of a school, school bus, public park, public pool, youth center or community center adds an additional 100 hours of community service to the sentence for possession.

Manufacture / Distribution / Delivery / Possession With Intent of 200 grams or less of marijuana is punishable by 3.5 years in prison and a fine of $10,000. For amounts greater than 200 grams the penalty increases to 6 - 15 years in prison and a fine of $10,000 - $25,000.

If a person 17 years of age or over delivers a controlled substance to a person 17 years of age or under who is at least 3 years his or her junior, the applicable maximum term of imprisonment may be increased by 5 years. Sale within 1,000 feet of a school, school bus, public park, public pool, youth center, community center, treatment facility, jail or public housing project adds five years to the maximum possible prison term. Distribution or sale on a public transit vehicle also increases the maximum possible prison sentence by five years.

Possession of paraphernalia is punishable by up to 30 days in jail and a fine up to $500. Delivery or possession with intent to distribute is punishable by up to 90 days in jail and a fine up to $1,000, unless the sale or delivery was to a minor, in which case the penalties increase to a possible 9 months in jail and a fine up to $10,000.

Upon conviction of a drug offense, the offender's driver's license is suspended for 6 months - 5 years.



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