This document discusses Wisconsin municipal OWI law and jurisdiction over OWI offenses. It provides an overview of municipal court jurisdiction over first offense OWIs as civil forfeitures. It also discusses limitations on municipal court jurisdiction if a valid prior conviction exists. The document outlines circuit court jurisdiction over first offense OWIs and contradictory appellate court opinions on jurisdiction if a prior conviction exists. It defines key terms related to OWI offenses like "operate," "motor vehicle," "highway," and premises held out for public use. It also discusses what constitutes being "under the influence" and prohibited alcohol concentrations.

1. Wisconsin
Municipal OWI
Prosecution
Douglas Hoffer
Assistant City Attorney
City of Eau Claire
douglas.hoffer@eauclairewi.gov
douglashoffer@gmail.com
715-839-6006
Rick Trindl
Arenz, Molter, Macy, Riffle & Larson SC
rtrindl@ammr.net
262-548-1340
10/16/2015

2. 1
WISCONSIN MUNICIPAL OWI LAW
I. Municipal Court Jurisdiction over 1st
Offense OWI/PAC/OCS citations
a. Municipal Court has jurisdiction to hear civil forfeitures
State v. Albright First offense OWI is generally a civil forfeiture
98 Wis. 2d 663 even though there is a possibility of imprisonment if
298 N.W.2d 196 forfeiture judgment is not paid.
(Ct. App. 1980)
Wis. Stat. 755.045(1) Municipal court has exclusive jurisdiction over
actions seeking to impose forfeitures for violations
of municipal ordinances except for actions
transferred to courts of record or where equitable
relief is demanded.
Wis. Stat. 800.035(5)(c) Defendant charged with OWI 1st
offense may
request a jury trial within 10 days after entry of plea
(thus transferring case to circuit court).
City of Fond du Lac v. Kaehne Ten day period for requesting jury trial on OWI 1st
229 Wis. 2d 323 offense begins to run when defendant appears in
599 N.W.2d 870 court to enter plea or when written guilty plea is
(Ct. App. 1999) received by court.
b. Jurisdictional limitations based on valid prior convictions
City of Kenosha v. Jensen Municipal courts lack authority to try and convict
184 Wis. 2d 91, 99 1st
offense OWI where valid prior conviction exists
516 N.W.2d 4, 7 (Ct. App. 1994)
State v. Strohman Municipal courts lack authority to try and convict
2015 WI App 28, ¶ 2 1st
offense OWI where valid prior conviction exists
361 Wis. 2d 286 (and criminal statute of limitations does not toll
862 N.W.2d 619 based on civil OWI conviction).
(unpublished)
II. Circuit Court Jurisdiction over 1st
Offense OWI citations
a. Limitations based on valid prior convictions
Note: The issue of circuit court subject matter jurisdiction over 1st
offense OWI where a
valid prior conviction exists is currently in doubt. Two recent (unpublished) Court of
Appeals opinions reached contradictory conclusions on this issue.

3. 2
State v. Navrestad Subject matter jurisdiction is not revoked when a
2014AP2273 a circuit court enters a 1st
offense OWI conviction
2015WL3997004 where valid prior conviction exists.
(Wis. Ct. App. July 2, 2015)
(unpublished)
City of Stevens Point v. Lowery Circuit court lacks subject matter jurisdiction to
2015 WI App 28 enter judgment on a 1st
offense OWI when
361 Wis. 2d 285 defendant had valid prior conviction(s).
862 N.W.2d 619
(unpublished)
Wis. Const. art VII § 8 Except as otherwise provided by law, the circuit
court shall have original jurisdiction in all matters
civil and criminal within this state and such
appellate jurisdiction in the circuit as the legislature
may prescribe by law.
Note: Many defense attorneys cite Rohner (below) in support of the proposition that the
existence of a valid prior OWI conviction deprives circuit courts of subject matter
jurisdiction to enter an OWI 1st
offense conviction. This argument ignores the holding of
Mikrut (below) which held that circuit court subject matter jurisdiction may not be
revoked by statute.
Walworth Cnty v. Rohner Circuit court lacks subject matter jurisdiction to
108 Wis. 2d 713, 721 enter 1st
offense OWI conviction when defendant
324 N.W.2d 682, 685 (1982) has valid prior conviction(s).
Vill. of Trempealeau v. Mikrut Noncompliance with statutory requirements
2004 WI 79, 273 Wis. 2d 76 pertaining to the exercise of subject-matter
681 N.W.2d 190 jurisdiction may result in loss of court competency
but does not negate subject matter jurisdiction.
Note: In addition to Mikrut, a wide body of Wisconsin case law concludes that Wis.
Const. art. VII § 8’s grant of subject matter jurisdiction cannot be revoked by statute:
See Starks, 2013 WI 69 at ¶ 36; Stern, 2006 WI App 193 at ¶ 24; Xcel Energy,
2013 WI 64 at ¶ 27; Brefka, 2013 WI 54 at ¶ 16; Campbell, 2006 WI 99 at ¶¶ 44-
45; Kohler, 204 Wis. 2d at 336-37; Cepukenas v. Cepukenas, 221 Wis. 2d 166,
170, 584 N.W.2d 227, 229 (Ct. App. 1998); In re Termination of Parental Rights

4. 3
to Joshua S., 2005 WI 84, ¶ 16, 282 Wis. 2d 150, 160, 698 N.W.2d 631, 635;
Currier v. Wisconsin Dep't of Revenue, 2006 WI App 12, ¶ 6 n. 2, 288 Wis. 2d
693, 698 n. 2, 709 N.W.2d 520, 523; In re Guardianship of Carly A.T., 2004 WI
App 73, ¶¶ 6- 7, 272 Wis. 2d 662, 667, 679 N.W.2d 903, 905; In re Commitment
of Bollig, 222 Wis. 2d 558, 565, 587 N.W.2d 908, 911 (Ct. App. 1998).
III.Elements of OWI offense
a. Operation
Wis. Stat. § 346.63(3)(b) “Operate” means the physical manipulation or
activation of any of the controls of a motor vehicle
necessary to put it in to motion.
Milwaukee Cnty. v. Proegler A finding of intent to drive or move vehicle is not
95 Wis. 2d 614 required to find defendant guilty of operating a
291 N.W.2d 608 motor vehicle while under the influence of an
(Ct. App. 1980) intoxicant.
Vill. of Cross Plains v. Haanstad Defendant who sat in driver’s seat of running car
2006 WI 16 was not “operating” vehicle where no evidence
288 Wis. 2d 573 suggested that defendant operated any vehicle
709 N.W.2d 447 controls and there was no dispute defendant did not
activate any controls.
Vill. of Elkhart Lake Sitting behind steering wheel of a motor vehicle
v. Borzyskowski whose engine is running can provide probable cause
123 Wis. 2d 185 that vehicle was “operated.”
366 N.W.2d 506
(Ct. App. 1985)
b. Motor Vehicle
Wis. Stat. § 340.01(35) “Motor vehicle” means a vehicle, including a
combination of 2 or more vehicles or an articulated
vehicle, which is self-propelled, except a vehicle
operated exclusively on a rail. “Motor vehicle”
includes, without limitation, a commercial motor
vehicle or a vehicle which is propelled by electric
power obtained from overhead trolley wires but not
operated on rails. A snowmobile, an all-terrain
vehicle, a utility terrain vehicle, and an electric
personal assistive mobility device shall be

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considered motor vehicles only for purposes made
specifically applicable by statute.
c. Highway
Wis. Stat. § 340.01(22) “Highway” means:
(1) all public ways and thoroughfares and bridges
on the same.
(2) It includes the entire width between the
boundary lines of every way open to the use of the
public as a matter of right for the purposes of
vehicular travel.
(3) It includes those roads or driveways in the state,
county or municipal parks and in state forests which
have been opened to the use of the public for the
purpose of vehicular travel
(4) and roads or driveways upon the grounds of
public schools, as defined in s. 115.01(1), and
institutions under the jurisdiction of the county
board of supervisors, but does not include private
roads or driveways as defined in sub. (46).
In Interest of E.J.H. “Highway” means entire right of way – it is not
112 Wis. 2d 439 limited to the paved portion or the paved portion
334 N.W.2d 77 (1983) plus the shoulder.
State v. Mertes That vehicle was operated “on a highway” may be
2008 WI App 179 proved by circumstantial evidence.
315 Wis. 2d 756
762 N.W.2d 813
d. Premises held out for the public
Wis. Stat. § 346.61 In addition to being applicable upon highways, ss.
346.62 to 346.64 are applicable upon all premises
held out to the public for use of their motor
vehicles, all premises provided by employers to
employees for the use of their motor vehicles and
all premises provided to tenants of rental housing in
buildings of 4 or more units for the use of their

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motor vehicles, whether such premises are publicly
or privately owned and whether or not a fee is
charged for the use thereof. Sections 346.62 to
346.64 do not apply to private parking areas at
farms or single-family residences.
State v. Tecza The roadways of the Geneva National (gated)
2008 WI App 79 ¶ 22 community were “held out to the public for use of
312 Wis. 2d 395, 405 their motor vehicles” because on any given day any
751 N.W.2d 896, 901 licensed driver could enter the community
unchallenged; therefore, the drunken driving law of
the State applies as provided in Wis. Stat. § 346.61.
City of La Crosse v. Richling The parking lot of bar and restaurant was “held out
178 Wis. 2d 856 the public” because potential customers are part of
505 N.W.2d 448 (Ct. App. 1993) the public.
e. Under the influence
Wis. Stat. § 346.63 (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
State v. Paegelow Under the influence is considerably less than degree
56 Wis. 2d 815, 820 of intoxication that would render a person incapable
202 N.W.2d 916, 918 (1973) of being able to understand and voluntarily waive
his constitutional rights.
f. Prohibited Alcohol Concentration
Wis. Stat. § 885.235(1)(a) “Alcohol concentration” means the number of
grams of alcohol in 100 milliliters of a person's
blood or the number of grams of alcohol in 210
liters of a person's breath.

7. 6
Wis. Stat. § 340.01(46m) “Prohibited alcohol concentration” means one of the
following:
(a) If the person has 2 or fewer prior convictions,
suspensions, or revocations, as counted under s.
343.307(1), an alcohol concentration of 0.08 or
more.
(c) If the person is subject to an order under s.
343.301 or if the person has 3 or more prior
convictions, suspensions or revocations, as counted
under s. 343.307(1), an alcohol concentration of
more than 0.02.
State v. Muehlenberg Constitutionality of penalizing “status” of having
118 Wis. 2d 502 BAC of 0.10% or more upheld. Statute not void for
347 N.W.2d 914 (Ct. App. 1984) vagueness, as person of common intelligence could,
with fair degree of definiteness, know when
consumption of alcohol was putting him or her in
danger of violating statute.
State v. McManus Per se prohibited alcohol concentration is separate
152 Wis. 2d 113 offense that is constitutional – statute does not
447 N.W.2d 654 (1989) violate due process or equal protection and is not
void for vagueness.
g. With a Detectable Amount of a Restricted Controlled Substance
Wis. Stat. § 340.01 (50m) “Restricted controlled substance” means any
of the following:
(a) A controlled substance included in schedule I
under ch. 961 other than a tetrahydrocannabinol.
(b) A controlled substance analog, as defined in s.
961.01(4m), of a controlled substance described in
par. (a).
(c) Cocaine or any of its metabolites.
(d) Methamphetamine.
(e) Delta-9-tetrahydrocannabinol.
State v. Smet Statute prohibiting operation of motor vehicle while
2005 WI App 263 having a detectable amount of a restricted
288 Wis. 2d 525 controlled substance in one’s blood did not violate

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709 N.W.2d 474 due process or equal protection.
h. Absolute Sobriety
Wis. Stat. § 346.63(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).
Wis. Stat. § 343.30(1p) Notwithstanding sub. (1), a court shall suspend the
operating privilege of a person for 3 months upon
the person's conviction by the court for violation of
s. 346.63(2m) or a local ordinance in conformity
with s. 346.63(2m). 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(2m) or a local ordinance in
conformity with s. 346.63(2m), the court shall
suspend the operating privilege of the person for 6
months.
i. Hazardous inhalants
Wis. Stat. § 340.01(20r) “Hazardous inhalant” means a substance that is
ingested, inhaled, or otherwise introduced into the
human body in a manner that does not comply with
any cautionary labeling that is required for the
substance under s. 100.37 or under federal law, or in
a manner that is not intended by the manufacturer of
the substance, and that is intended to induce
intoxication or elation, to stupefy the central
nervous system, or to change the human audio,
visual, or mental processes.

9. 8
IV.Suppression Motions & Motions to Dismiss
a. Seizure
State v. Macho On a Motion to Suppress, when the fact or timing of
2012 WI App 73, ¶ 5 a seizure is at issue, the defendant has the initial
342 Wis. 2d 251, 816 N.W.2d 352 burden to establish that a seizure subject to Fourth
(unpublished) Amendment protection occurred.
Gray v. State On a Motion to Suppress evidence because of an
243 Wis. 57, 63, 9 N.W.2d 68 unlawful seizure, the party asserting the
(1943) transgression has the burden of proving it occurred.
Cnty. of Grant v. Vogt “[T]he 4th
Amendment and Article I, Section 11 of
2014 WI 76, 356 Wis. 2d 343 the Wisconsin Constitution are not implicated until
850 N.W.2d 253 a government agent ‘seizes’ a person.”
United States v. Mendenhall “A seizure occurs only when the officer, by means
446 U.S. 544, 554 of physical force or show of authority, has in some
100 S.Ct. 1870 (1980) way restrained the liberty of a citizen.”
Cnty. of Grant v. Vogt Wisconsin has adopted the Mendenhall test for
2014 WI 76, ¶ 30, 356 Wis. 2d 343 determining whether a seizure took place.
850 N.W.2d 253 (This is an objective test).
Cnty. of Grant v. Vogt Police questioning, by itself, is unlikely to result in
2014 WI 76, ¶ 24, 356 Wis. 2d 343 a 4th
Amendment violation.
850 N.W.2d 253
United States v. Broomfield Telling a pedestrian to stop and take his hands out
417 F.3d 654 (2005) of his pockets did not constitute a seizure.
I.N.S. v. Delgado “While most citizens will respond to a police
466 U.S. 210 request, the fact that people do so, and do so
104 S. Ct. 1758 (1984) without being told they are free not to respond,
hardly eliminates the consensual nature of the
response.”
Examples of circumstances that might suggest a seizure:
 The threatening presence of several officers
 The display of a weapon by an officer
 Some physical touching of the person of the citizen
 The use of language or tone of voice indicating that compliance with the
officer’s request might be compelled

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Vogt at ¶ 23, 53 quoting Mendenhall at 554
Note: The Wisconsin Supreme Court interpreted “display of a weapon” not simply as
carrying a weapon, but rather as “brandish[ing]” a weapon. Vogt at ¶ 53.
b. Reasonable Suspicion
State v. Young “An investigatory stop is constitutional if the police
294 Wis. 2d 1 have reasonable suspicion that a crime has been
717 N.W.2d 729 (2006) committed, is being committed, or is about to be
committed.”
Whether the police have reasonable suspicion is
determined by viewing the facts “from the
standpoint of an objectively reasonable police
officer.”
An investigatory stop, though a seizure, allows
police officers to briefly detain a person for
purposes of investigating possible criminal behavior
even though there is no probable cause to make an
arrest.
Reasonable suspicion requires that a police officer
possess specific and articulable facts that warrant a
reasonable belief that criminal activity is afoot.
State v. Anderson Although police officers need more than a hunch,
155 Wis. 2d 77, 84 “police officers are not required to rule out the
454 N.W.2d 763 (1990). possibility of innocent behavior before initiating a
brief stop.”
State v. Young “[W]hat constitutes reasonable suspicion is a
212 Wis.2d 417, 424 common sense test: under all the facts and
569 N.W.2d 84 circumstances present, what would a reasonable
(Ct.App.1997) police officer reasonably suspect in light of his or
her training and experience.”
State v. Waldner This common sense approach strikes balance
206 Wis. 2d 51 between individual privacy and societal interest in
556 N.W.2d 681 (1996) allowing police reasonable scope of action in
discharging their responsibility.

11. 10
State v. Post A police officer must be able to identify “specific
2007 WI 60, ¶ 10 and articulable facts” and draw “rational inferences
301 Wis.2d 1 from those facts” sufficient to constitute reasonable
733 N.W.2d 634 suspicion to justify an extension of a driver's
detention.
An officer's “inchoate and unparticularized
suspicion or ‘hunch’ ” is not enough to establish
reasonable suspicion.
Framework courts use for determining validity of an investigatory stop:
[S]uspicious conduct by its very nature is ambiguous, and the
[principal] function of the investigative stop is to quickly resolve
that ambiguity. Therefore if any reasonable inference of
wrongful conduct can be objectively discerned,
notwithstanding the existence of other innocent inferences that
could be drawn, the officers have the right to temporarily
detain the individual for the purpose of inquiry.
Anderson, 155 Wis. 2d at 84; Young, 294 Wis. 2d at 17 (emphasis added).
c. Community Caretaker
State v. Kramer The public has a substantial interest in encouraging
2009 WI 14 police officers to be on the lookout for and offer aid
315 Wis. 2d 414, 438-39 to motorists and other individuals who may be
759 N.W.2d 598, 611 stranded or otherwise in need of assistance,
especially after dark when help is not close at hand.
State v. Goebel When police stop to assist motorists, such contact
103 Wis. 2d 203, 208 is “not only authorized, but constitute[s] an
307 N.W.2d 915 (1981) important duty of law enforcement officers.”
State v. Ziedonis The prosecution bears the burden of proving that the
2005 WI App. 249 community caretaker exception applies. Wisconsin
287 Wis.2d 831, ¶ 15 courts have cautioned against taking a too-narrow
707 N.W.2d 565 view in determining whether the community
caretaker function is present.
State v. Ziedonis The “officers’ fear for the safety of the occupant”
2005 WI App. 249 was a significant public interest supporting

12. 11
287 Wis.2d 831, ¶ 29 community caretaker function, because the officers
707 N.W.2d 565 did not know the physical condition of the person
and reasonably concluded that the situation was an
emergency.
State v. Kramer The “totally divorced” language from Cady does
2009 WI 14, ¶ 30 not mean that if the police officer has any subjective
315 Wis. 2d 414, 432-33 law enforcement concerns, he cannot be engaging in
759 N.W.2d 598, 608 a valid community caretaker function. Rather, in a
community caretaker context, when under the
totality of the circumstances an objectively
reasonable basis for the community caretaker
function is shown, that determination is not negated
by the officer's subjective law enforcement
concerns.
3 Step test for evaluating claims of police community caretaker functions:
 A seizure occurred
 If so, whether the police conduct was bona fide community caretaker activity
 If so, whether public need and interest outweigh the intrusion upon the privacy of
the individual
State v. Kramer, 2009 WI 14, ¶ 21, 315 Wis. 2d 414, 427, 759 N.W.2d 598, 605
d. Right to extend stop
State v. Colstad Whether a valid traffic stop may be lawfully extended to
2003 WI App 25, ¶ 19 administer field sobriety tests turns on “whether the officer
260 Wis.2d 406 discover[s] information subsequent to the
659 N.W.2d 394 initial stop which, when combined with information already
acquired, provide[s] reasonable suspicion [of] ... driving
while under the influence of an intoxicant.”
State v. Young “[W]hat constitutes reasonable suspicion is a common
212 Wis.2d 417, 424 sense test: under all the facts and circumstances present,
569 N.W.2d 84 what would a reasonable police officer reasonably suspect
(Ct.App.1997) in light of his or her training and experience.”
State v. Post A police officer must be able to identify “specific and
2007 WI 60, ¶ 10 articulable facts” and draw “rational inferences from those
301 Wis.2d 1 facts” sufficient to constitute reasonable suspicion to justify
733 N.W.2d 634 an extension of a driver's detention.

13. 12
An officer's “inchoate and unparticularized suspicion or
‘hunch’ ” is not enough to establish reasonable suspicion.
e. Administering Preliminary Breath Test (PBT)
Cnty. of Jefferson v. Renz Police officers may use PBT as screening device to
231 Wis. 2d 293 establish probable cause to arrest. PBT result is
603 N.W.2d 541 (1999) admissible to show probable cause for arrest.
Quantum of evidence necessary to administer PBT
is greater than reasonable suspicion necessary to
justify investigative stop but less than the level of
proof required to establish probable cause for arrest.
Wis. Stat. § 343.303 PBT result is admissible to demonstrate probable
cause for arrest, or to prove chemical test was
properly required or requested.
State v. Felton Field Sobriety Tests are not necessarily needed to
2012 WI App 114, ¶ 10 demonstrate quantum of evidence necessary to
344 Wis. 2d 483 administer PBT.
824 N.W.2d 871
Fischer v. Ozaukee Cnty. Circuit Court
741 F. Supp. 2d 944 Excluding expert opinion which relied in part on
(E.D. Wis. 2010) PBT result deprived defendant of right to present a
defense.
f. Probable cause to arrest
State v. Lange Probable cause to arrest defendant for operating
2009 WI 49, 317 Wis. 2d 383 while under the influence of an intoxicant refers to
766 N.W.2d 551 that quantum of evidence within the arresting
officer’s knowledge at the time of the arrest that
would lead a reasonable law enforcement officer to
believe that the defendant was operating a motor
vehicle while under the influence of an intoxicant;
burden is on the state to show that the officer had
probable cause to arrest.
The question of probable cause to arrest must be
assessed on a case-by-case basis, looking at the
totality of the circumstances.
In determining whether there is probable cause to
arrest, the court applies an objective standard,

14. 13
considering the information available to the officer
and the officer’s training and experience.
State v. Lange Evidence of intoxicant usage – odors, an admission,
2009 WI 49, ¶ 37 or containers strengthen existence of probable cause
317 Wis. 2d 383, 398 but such evidence is not required to establish
766 N.W.2d 551, 558 probable cause.
Washburn County v. Smith No general rule requiring field sobriety tests in all
2008 WI 23, 308 Wis. 2d 65 cases as a prerequisite for establishing probable
746 N.W.2d 243 cause to arrest a driver for operating a motor vehicle
while under the influence of an intoxicant.
State v. Paszek “Probable cause to arrest refers to that quantum of
50 Wis. 2d 619, 624-25 evidence which would lead a reasonable police
184 N.W.2d 836 officer to believe that the defendant probably
(1971) committed a crime.... It is only necessary that the
information lead a reasonable officer to believe that
guilt is more than a mere possibility, and it is well
established that the belief may be predicated in part
upon hearsay information.”
g. Search Incident to Arrest
Arizona v. Gant Motor vehicle search incident to arrest is
556 U.S. 332 permissible when arrestee is unsecured and
129 S. Ct. 1710 (2009) within reaching distance of the passenger
compartment or when it is reasonable to believe
evidence relevant to the crime of arrest might be
found in vehicle.
Note: It is almost always be reasonable to believe evidence relevant to an OWI might be
found in the vehicle.
V. Implied consent
a. Defendant is arrested for impaired driving and refuses to take test.
Wis. Stat. 343.305(9)(a) Police officer shall immediately prepare “Notice of
Intent to Revoke” and give/send a copy to:
a. The defendant
b. The Wisconsin Dept. of Transportation
c. Municipal or Circuit Court that will hear matter

15. 14
d. Prosecutor for Municipal Court or Circuit Court
that will prosecute matter.
State v. Moline Officer’s failure to “immediately” serve Notice of
170 Wis. 2d 531 Intent to Revoke does not deprive Court of
(Ct. App. 1992) jurisdiction to hold refusal hearing.
b. Rules of Civil Procedure apply to refusal hearings except where different
procedure is prescribed by statute or rule.
Wis. Stat. 801.01 Chapters 801 to 847 govern procedure and practice
State v. Schoepp in special proceedings (like refusal hearings) except
204 Wis. 2d 266 where different procedure is prescribed by statute or
(Ct. App. 1996) rule.
Note: How to calculate ten days for purposes of the refusal statute is an unsettled
question. Possible issue exists regarding whether “10 day” language found
in § 343.305 prescribes a different procedure.
Wis. Stat. 801.15 If time period is less than 11 days, Saturdays,
Sundays and holidays shall be excluded in the
computation.
State v. Nordness Wis. Stat. 343.305(2) declares legislative policy;
128 Wis. 2d 15, 28 remainder of § 343.305 outlines procedures for
(1986) implementing this policy.
State v. Moline
170 Wis. 2d 531, 534 Request for refusal hearing received by Court on
(Ct. App. 1992) July 11th
for Notice of Intent to Revoke served on
July 1st
was received on “the last day of the ten-day
notice period…”
State v. Carlson
2002 WI App 44 Parties (apparently) agreed not to count weekends
250 Wis. 2d 562 or holidays towards 10 day deadline.
No discovery except in limited circumstances with leave of the court.
Neither party is entitled to pretrial discovery in any refusal hearing, except that, if the
defendant moves within 30 days after the initial appearance and shows cause the Court
may allow limited discovery. Wis. Stat. § 343.305(9)(a).

16. 15
c. Court authority to hold refusal hearing or dismiss refusal depends on timely
refusal hearing request made in writing.
Wis. Stat. § 343.305(9) Request must be in writing.
Village of Elm Grove v. Brefka
2013 WI 54 Courts lack competency to hear defendant’s request
348 Wis. 2d 282 to extend 10 day time limit. (Revocation is
automatic if request is not received within 10 days).
Wis. Stat. 343.305(10) Failure to timely request refusal hearing results in the
following consequences:
1. Revocation of operating privileges (length determined
by defendant’s offender status – see Wis. Stat. §
343.307(2)) – first offense is one year.
a.Revocation period reduced by any period of
revocation or suspension previously served for
underlying OWI or underlying underage absolute
sobriety.
2. 30 day wait for occupational license (if otherwise
qualified for occupational license)
3. Ignition interlock order
4. $50 ignition interlock surcharge
5. Assessment (if applicable)
Wis. Stat. § 343.350(10)(a) Revocation commences 30 days after refusal date if
defendant fails to timely request refusal hearing.
In re Refusal of Bentdahl The plain language of the statute and recent interpretation
2013 WI 106 of statutory provisions in Brefka demonstrates circuit courts
351 Wis. 2d 739 lack discretion to dismiss a refusal charge if the defendant
(See footnote 10) does not request a hearing within 10 days.
In re Refusal of Bentdahl Courts lack authority to dismiss refusals (1) if defendant
2013 WI 106 pleads not guilty; or (2) if defendant fails to timely request
351 Wis. 2d 739 refusal hearing.
-BUT-

17. 16
“We do recognize, however, that factual circumstances
distinct from those at issue today may arise, which make a
request for a refusal hearing within the ten-day limit or
entry of plea of guilty impossible. We do not decide what
the discretionary authority of the circuit court would be
under such circumstances.”
d. Notice of Intent to Revoke issued by police officer is adequate process to
provide refusal hearing court with jurisdiction.
Wis. Stat. § 343.305(9)(b) Use of Notice of Intent to Revoke by law enforcement
officer is adequate process to give the appropriate court
jurisdiction over the person.
State v. Schoepp Notice of Intent to Revoke is akin to Summons and
204 Wis. 2d at 271 Complaint requirements of Chapters 801 and 802.
(Ct. App. 1996)
In re Gautschi Technical defect in Notice of Intent to Revoke is not
2000 WI App 274 sufficient to deprive refusal hearing of personal jurisdiction
240 Wis. 2d 83
State v. Carlson Improperly revoking operating privileges for 19 days prior
2002 WI App 44 to holding refusal hearing was technical error.
250 Wis. 2d 562
Note: Are there other “threshold” issues that refusal hearings are permitted to consider
before examining statutorily limited substantive issues?
e. Refusal hearing issues are expressly limited by statute.
Wis. Stat.§ 343.305(9) Refusal hearing issues are strictly limited to:
State v. Nordness 1. Did the officer have probable cause and did the officer
128 Wis. 2d at 19 (1986) lawfully arrest the defendant?
In re Refusal of Anagnos 2. Did the police officer properly convey information
2012 WI 64 found in Wis. Stat. § 343.305(4) – (generally contained in
341 Wis. 2d 576 Informing the Accused form).
3. Did the defendant refuse the test?

18. 17
4. If defendant refused test, does he or she have affirmative
defense?
State v. Nordness There is no “actual driver” threshold issue. Refusal hearing
128 Wis. 2d at 27, 34 (1986) issues are limited to the four issues listed in the statute.
Restricting scope of refusal hearing does not deprive
defendant of due process. Procedural due process requires
that defendants be given notice and an opportunity to be
heard at a meaningful time and in a meaningful manner.
In re Refusal of Anagnos The issues that can be raised at a refusal hearing are strictly
2012 WI 64 ¶¶ 25, 33 limited to the issues enumerated in the refusal hearing
341 Wis. 2d 576 statute.
State v. Darling Trial courts power to regulate motor vehicle operating
143 Wis. 2d 839 privileges is not inherent, but instead is confined to those
(Ct. App. 1989) powers vested by the legislature. (This case is not a refusal
case. However, it stands for the important proposition that
court power is limited in matters involving the regulation of
motor vehicle operating privileges to powers explicitly
vested by statute).
City of Sun Prairie v. Davis
226 Wis. 2d 738 (1999) There are three areas where courts can exercise inherent
authority: 1) Court’s internal operations; 2) the regulation
of members of the bench and bar; and 3) ensuring that the
court functions efficiently and effectively to provide the
fair administration of justice.
Issue No. 1 - Probable Cause and lawful arrest
In re Refusal of Anagnos Defendant is not “lawfully” arrested if police did not have
2012 WI 64 reasonable suspicion or probable cause to stop defendant.
341 Wis. 2d 576
State v. Nordness “We view the revocation hearing as a determination merely
128 Wis. 2d 15 of an officer’s probable cause, not as a forum to weigh the
state’s and the defendant’s evidence…The trial court, in

19. 18
terms of the probable cause inquiry, simply must ascertain
the plausibility of a police officer’s account.”
State v. Wille Prosecution’s (probable cause) burden of persuasion is
185 Wis. 2d 673 greater at suppression hearing than at refusal hearing.
(Ct. App. 1994)
State v. Babbitt Motorist’s refusal to perform field sobriety test may be
188 Wis. 2d 349 used as evidence of probable cause to arrest for driving
(Ct. App. 1994) under the influence.
County of Dane v. Sharpee Preliminary Breath Test (PBT) results may be considered
154 Wis. 2d 515, 520 as part of totality of circumstances upon which police
(Ct. App. 1990) officer’s probable cause determination rests.
State v. Wille An officer’s belief may be partially predicated on hearsay
185 Wis. 2d 673 information, and the officer may rely on the collective
(Ct. App. 1994) knowledge of the officer’s entire department.
Issue No. 2 – Did the officer properly read the language found in Wis. Stat.
343.305(4) (Informing the Accused form) to the defendant?
City of Mequon v. Hess Wis. Stat. § 343.305 does not require police officers to
158 Wis. 2d 500 inform defendants of all possible OWI penalties; only the
(Ct. App. 1990) statutorily prescribed penalties found in § 343.305.
In re Smith 2 different types of cases involving relay of required
2008 WI 23 information with two different types of analysis:
308 Wis. 2d 65
1. Failure to provide statutorily required information to the
Defendant.
a. Courts determine whether there was
“substantial” compliance.
2. Law enforcement officer provides all statutorily required
information but then provides further inaccurate
information in excess of his duty.
a. Courts apply Quelle test.

20. 19
Note: In re Smith abrogated Quelle, below.
County of Ozaukee v.
Quelle, 198 Wis. 2d 269 Under the Quelle test the defendant must satisfy the court
(Ct. App. 1995) of all the following:
1. The officer either failed to meet or exceeded the duty to
inform the accused person in compliance with the
requirements of the implied consent statute.
2. The lack or oversupply of information was misleading.
3. The failure to properly inform the driver affected his or
her ability to make the choice about chemical testing.
State v. Piddington A court need not inquire into whether the information was
241 Wis. 2d 754 (2000) properly perceived or understood by the arrested person.
Issue No. 3 – Did the defendant refuse the test?
State v. Neitzel The obligation of the accused is to take the test promptly or
95 Wis. 2d 191 to refuse it promptly.
(1980)
State v. Rydeski Defendant must promptly submit or refuse to submit to the
214 Wis. 2d 101 requested test. There is no right to recant a refusal. A
(Ct. App. 1997) defendant’s offer to later take the test does not undo the
refusal.
343.305(6)(c)3 Failure to provide 2 separate, adequate breath samples in
State v. Grade proper sequence constitutes refusal.
165 Wis. 2d 143
(Ct. App. 1991)
Village of Elkhart Lake v. Verbal refusal is not necessary. Conduct of defendant may
Borzyskowski constitute refusal.
123 Wis. 2d 185
(Ct. App. 1985)
State v. Neitzel There is no right to consult with an attorney before

21. 20
95 Wis. 2d 191 deciding whether to take test. Very limited exception to
State v. Reitter this rule exists if police have led defendant to believe he
227 Wis. 2d 213 will get opportunity to consult with an attorney prior to
taking the test.
State v. Grogan Miranda warnings do not interfere with defendant’s ability
2014 WI App 90 to make an informed choice under the implied consent law.
(unpublished)
State v. Spring Implied consent revocation upheld when defendant refused
204 Wis. 2d 343 to sign hospital consent form memorializing: 1) hospital
(Ct. App. 1996) would draw blood by order of officer; 2) blood would be
drawn only by medical personnel; 3) medical personnel
were immune from civil or criminal liability except for
civil liability for negligence; 4) defendant consented to the
test; 5) defendant understood test sample would be
submitted for analysis. Note: Court emphasized its
decision would not apply in a situation in which a form
recites complete waiver of hospital liability.
Issue No. 4 – Does defendant have affirmative defense to refusal finding?
Wis. Stat. 343.305(9)(a)5c Defendant must show by preponderance of the evidence
that refusal was due to physical inability to submit to the
test unrelated to the use of alcohol, controlled substances,
controlled substance analogs or other drugs.
In re Refusal of Bardwell Defendant’s lack of confidence in the primary test is not a
83 Wis. 2d 891, 900-01 valid defense.
(1978)
f. Refusal hearing burden of persuasion is “plausibility” not a weighing of
evidence in measuring credibility.
State v. Wille Burden of persuasion is plausibility and not a weighing of
185 Wis. 2d 673, 681 evidence in measuring credibility. “Indeed, the court need
(Ct. App. 1994) not even believe the officer’s account. It need only be
persuaded that the state’s account is plausible.”

22. 21
In re Refusal of Anagnos Prosecution’s burden of proof at a refusal hearing is
2012 WI 64 “substantially less than at a suppression hearing.”
341 Wis. 2d 576, 603-06
(Ziegler, J., concurring)
g. Refusal charge is separate and distinct from the underlying OWI/PAC/OCS
charge(s).
In re Refusal of Anagnos A refusal charge is separate and distinct from
2012 WI 64 ¶ 67 OWI/PAC/OCS charge.
State v. Brooks Courts have discretion to dismiss refusal with guilty plea to
133 Wis. 2d 347 underlying OWI charge.
In re Refusal of Bentdahl The plain language of the statute and recent interpretation
2013 WI 106 of statutory provisions in Brefka demonstrates circuit courts
351 Wis. 2d 739 lack discretion to dismiss a refusal charge if the defendant
(See footnote 10) does not request a hearing within 10 days.
In re Refusal of Bentdahl Courts lack authority to dismiss refusals (1) if defendant
2013 WI 106 pleads not guilty; or (2) if defendant fails to timely request
351 Wis. 2d 739 refusal hearing.
-BUT-
“We do recognize, however, that factual circumstances
distinct from those at issue today may arise, which make a
request for a refusal hearing within the ten-day limit or
entry of plea of guilty impossible. We do not decide what
the discretionary authority of the circuit court would be
under such circumstances.”
h. Implications of finding unlawful refusal
Wis. Stat. § 343.305(9)(d) At conclusion of refusal hearing, or within five days
thereafter, the court must render a decision in the implied
consent case.
Village of Elkhart Lake v. Failure to render a timely decision does not result in
Borzyskowski divestiture of court’s jurisdiction.

23. 22
123 Wis. 2d at 192-94
(Ct. App. 1985)
Wis. Stat. 343.305(10) Finding unlawful refusal results in the following
consequences:
1. Revocation of operating privileges (length
determined by defendant’s offender status – see
Wis. Stat. § 343.307(2)) – first offense is one
year.
a. Revocation period reduced by any
period of revocation or suspension
previously served for underlying OWI or
underage absolute sobriety.
2. 30 day wait for occupational license (if
otherwise qualified for occupational license)
3. Ignition interlock order
4. $50 ignition interlock surcharge
5. Assessment (if applicable)
i. Other considerations after defendant submits to primary test
Wis. Stat. § 343.305(5) Defendant may request alternative test provided by
the agency.
Defendant may, at his or her expense, request
reasonable opportunity for an additional test.
The failure or inability of a person to obtain a test at
his or her expense does not preclude the admission
of evidence of the results of the primary test.
State v. Donner Implied consent law permits arresting officer to
192 Wis. 2d 305 request defendant to submit to blood test after
531 N.W.2d 369 (Ct. App. 1995) defendant submitted (primary) breath test. Refusal
to submit to second test is admissible at trial even if
prosecution does not pursue refusal charge.
State v. Stary Following administration of primary test officer
187 Wis. 2d 266 must act with reasonable diligence to provide
522 N.W.2d 32 (Ct. App. 1994) alternative test.

24. 23
State v. Schmidt An accused’s request for an alternative test does not
2004 WI App 235 need to be made after the primary test, but request
277 Wis. 2d 561 must be clear.
691 N.W.2d 379
State v. Fahey Request for additional test made after release from
2005 WI App 171 custody is not a valid request under implied consent
285 Wis. 2d 679 law.
702 N.W.2d 400
State v. Batt Officer is not required to give defendant reasonable
2010 WI App 155 opportunity to obtain 3rd
test. Officer is required to
330 Wis. 2d 159 offer either a second test at agency expense or a
793 N.W.2d 104 reasonable opportunity for a test at the defendant’s
expense.
j. Evidence of test refusal
State v. Albright Evidence of test refusal is admissible at OWI trial to
98 Wis. 2d 663, 668 show consciousness of guilt.
298 N.W.2d 196, 200
(Ct. App. 1980)
State v. Bolstad Defendant’s explanation for refusal is also
124 Wis. 2d 576 admissible.
370 N.W.2d 257 (1985)
S. Dakota v. Neville Admission into evidence of defendant’s refusal to
459 U.S. 553 submit to test does not offend privilege against self
103 S. Ct. 916 (1983) incrimination.
VI.Additional pretrial issues
a. Discovery
Wis. Stat. § 345.421 Limited discovery in non-criminal traffic cases.
Request must be made within 10 days of violation
and must show cause.
Wis. Stat. § 800.07 Neither party is entitled to pretrial discovery in any
action in municipal court, except that if the
defendant moves for pretrial discovery within 30
days after the initial appearance the court may order
prosecution to provide documents, including names
and witnesses, if available, and to test devices under
Wis. Stat. § 804.09.

25. 24
Defendant may also move for pretrial discovery at
any other time upon a showing of cause.
b. Motions to Dismiss/amend charge
Wis. Stat. § 967.055(2) Motions to dismiss or amend OWI charge require
court approval and may only be approved if the
court finds that the proposed reasons for
amendment or dismissal are consistent with public
interest in deterring drunk driving.
State v. Dums Trial court is not required to accept prosecutor’s
149 Wis. 2d 314 reasons for amendment or dismissal. Trial court
440 N.W.2d 814 (Ct. App. 1989) may inquire into reasons advanced by prosecutor
and examine public interest in light of deterring
drunk driving without violating separation of
powers doctrine.
Wis. Stat. § 967.055(3) Deferred prosecution agreements are not permitted
for OWI offenses.
VII. Trial Issues
a. Chemical test admissibility & issues
Wis. Stat. § 343.305 The results of a test administered in accordance
with this section are admissible. Test results shall be
given the effect required under s. 885.235.
Wis. Stat. § 885.235 Test must be administered within 3 hours of driving
or expert testimony must establish its probative
value.
Test result of 0.08 or more is prima facie evidence
that defendant was under the influence of alcohol or
another intoxicant and is prima facie evidence that
defendant had an alcohol concentration of 0.08 or
more.
State v. Dwinell Presumption of accuracy also applies to the test
119 Wis. 2d 305 results of the “Intoximeter 3000” breath test.
349 N.W.2d 739 (Ct. App. 1984)
Missouri v. McNeely Forced warrantless blood draw requires exigent
133 S.Ct. 1552 (2013) circumstances. Natural metabolization of alcohol
does not present a per se exigency that justifies

26. 25
exception to 4th
Amendment. Exigency in this
context must be based on totality of circumstances.
Wis. Stat. § 343.305(5)(b) Blood sample must be taken by a physician,
registered nurse, medical technologist, physician
assistant, phlebotomist, or other medical
professional who is authorized to draw blood, or a
person acting under the direction of a physician.
State v. Hinz DOT published chart estimating blood alcohol
121 Wis. 2d 282 concentration by reference to number of drinks
360 N.W.2d 56 (Ct. App. 1984) consumed, adjusted for body weight and time is
admissible in drunk-driving cases.
b. Chain of custody
State v. McCoy Alleged gaps in a chain of custody go to the weight
2007 WI App 15, ¶ 9 of the evidence rather than its admissibility.
298 Wis. 2d 523, 528
728 N.W.2d 54, 56
c. Expert Witnesses/Daubert
Wis. Stat. § 902.07(1) If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if the
testimony is based upon sufficient facts or data, the
testimony is the product of reliable principles and
methods, and the witness has applied the principles
and methods reliably to the facts of the case.
State v. Giese Retrograde extrapolation is admissible under
2014 WI App 92, ¶ 17 Daubert.
356 Wis. 2d 796, 805
854 N.W.2d 687, 691
State v. Giese The question is whether the scientific principles
2014 WI App 92, ¶ 18 and methods that the expert relies upon have a
356 Wis. 2d 796, 806 reliable foundation “in the knowledge and
854 N.W.2d 687, 691 experience of [the expert's] discipline.” Relevant
factors include whether the scientific approach can
be objectively tested, whether it has been subject to

27. 26
peer review and publication, and whether it is
generally accepted in the scientific community.
State v. Warren An officer testifying that field sobriety tests and
2013 WI App 30, ¶ 7 other observations led him to form the subjective
346 Wis. 2d 281 opinion that a driver’s alcohol level was
827 N.W.2d 930 impermissibly high is not scientific or expert
(unpublished) testimony. Field sobriety tests are observational
tools.
Wis. Stat. § 907.01 If the witness is not testifying as an expert, the
witness's testimony in the form of opinions or
inferences is limited to those opinions or inferences
which are all of the following:
(1) Rationally based on the perception of the
witness.
(2) Helpful to a clear understanding of the witness's
testimony or the determination of a fact in issue.
(3) Not based on scientific, technical, or other
specialized knowledge within the scope of a witness
under s. 907.02(1).
d. Telephonic Testimony
Wis. Stat. § 807.13(2) (2) Evidentiary hearings. In civil actions and
proceedings, including those under chs. 48, 51, 54,
and 55, the court may admit oral testimony
communicated to the court on the record by
telephone or live audiovisual means, subject to
cross-examination, when:
(a) The applicable statutes or rules permit;
(b) The parties so stipulate; or
(c) The proponent shows good cause to the court.
Appropriate considerations are:
1. Whether any undue surprise or prejudice would
result;
2. Whether the proponent has been unable, after due
diligence, to procure the physical presence of the
witness;
3. The convenience of the parties and the proposed
witness, and the cost of producing the witness in
relation to the importance of the offered testimony;
4. Whether the procedure would allow full effective
cross-examination, especially where availability to

28. 27
counsel of documents and exhibits available to the
witness would affect such cross-examination;
5. The importance of presenting the testimony of
witnesses in open court, where the finder of fact
may observe the demeanor of the witness, and
where the solemnity of the surroundings will
impress upon the witness the duty to testify
truthfully;
6. Whether the quality of the communication is
sufficient to understand the offered testimony;
7. Whether a physical liberty interest is at stake in
the proceeding; and
8. Such other factors as the court may, in each
individual case, determine to be relevant.
VIII. Sentencing
a. Ignition Interlock Devices
Wis. Stat. 343.01(1g) Court order must: (1) restrict operating privileges to
vehicles equipped with an ignition interlock device;
and (2) order the installation of an IID for each
motor vehicle for which the person’s name appears
on the title or registration.
IID orders apply when any of the following apply:
(1) The person improperly refuses test; (2) The
person is convicted of an OWI related offense with
an alcohol concentration of 0.15 or more at the time
of offense; (3) The person has two or more
convictions in their lifetime.
Vill. of Grafton v. Seatz Trial court is required to order installation of IID
2014 WI App 23 even though prior OWI conviction occurred more
352 Wis. 2d 747, 845 N.W.2d 672 than 10 years before latest offense and defendant
could not be convicted as a repeat offender.
Note: Does dismissal of refusal charge preclude IID order when other two factors do not
apply?
b. Sentencing Guidelines
State v. Weaver Courts are permitted to deviate from sentencing
No. 2015AP170-CR guidelines in imposing sentence based on facts
2015 WL 5090585 of case.
(Wis. Ct. App. Aug. 31, 2015)
(unpublished)

29. 28
IX. Appellate Issues
a. Appeals from “judgments”
Wis. Stat. § 800.14(1) Appeals must be from “judgments,” motions
brought under § 800.11, or determinations regarding
defendant’s ability to pay
Wis. Stat. § 806.01(1)(a) “A judgment is the determination of the action. It
may be final or interlocutory.”
Wis. Stat. § 345.20(2)(a) Chapter 799 applies when no procedure is provided
in Chapter 345.
Wis. Stat. § 799.04(1) Chapter 801 to 847 apply unless otherwise provided
in Chapter 799.
City of Pewaukee v. Carter We conclude that the municipal court proceeding in
2004 WI 136, ¶ 63 the present case constituted a trial under Wis. Stat. §
276 Wis. 2d 333, 358 800.14(4) because the City presented its case, the
688 N.W.2d 449, 461-62 defendant had an opportunity to present his
evidence (even though he chose not to do so), and
the matter was judicially resolved on its merits. We
therefore conclude that the municipal court
proceeding in the instant case triggered the City's
statutory right to a new trial under 462 Wis. Stat. §
800.14(4).
b. Proper Service on appeals to circuit court
Wis. Stat. 800.14(1) Appeals must include written notice of appeal to the
municipal judge and other party within 20 days after
the judgment or decision. No appeals may be taken
from default judgments.
Vill. of Thiensville v. Fisk E-mail to municipal prosecutor on 20th
day after
No. 2015AP576-FT judgment satisfies written notice requirement in
2015 WL 5022543 Wis. Stat. 800.14(1).
(Wis. Ct. App. Aug. 26, 2015)
c. Split Decisions at municipal court level
Note: When municipal court finds defendant guilty of OWI but not guilty of PAC (or
vice versa) be sure to file cross appeal reserving right to appeal the not guilty verdict.
Town of Menasha v. Bastian Circuit court lacks jurisdiction over PAC citation

30. 29
178 Wis. 2d 191 where municipal court found defendant guilty of
503 N.W.2d 382 (Ct. App. 1993) OWI but PAC citation was dismissed without
finding of guilt and defendant appealed to circuit
court without municipality cross-appealing
d. Bond Requirement
Wis. Stat. § 800.14 On appeal by the defendant, the defendant shall
execute a bond, at the discretion of the municipal
judge, to the municipal court with or without surety,
approved by the municipal judge, that if the
judgment is affirmed in whole or in part the
defendant shall pay the judgment and all costs
awarded on appeal.