343.305 Tests for intoxication; administrative suspension and court-ordered revocation.

1,741 words·~8 min read·/wi/chapter-343/343-305

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(1)Definitions. In this section:

(b)“Drive” means the exercise of physical control over the speed and direction of a motor vehicle while it is in motion.

(c)“Operate” means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.

(2)Implied consent. Any person who is on duty time with respect to a commercial motor vehicle or drives or operates a motor vehicle upon the public highways of this state, or in those areas enumerated in s. 346.61 , is deemed to have given consent to one or more tests of his or her breath, blood or urine, for the purpose of determining the presence or quantity in his or her blood or breath, of alcohol, controlled substances, controlled substance analogs or other drugs, or any combination of alcohol, controlled substances, controlled substance analogs and other drugs, when requested to do so by a law enforcement officer under sub.

(a)or

(am)or when required to do so under sub.

(ar)or

(b). Any such tests shall be administered upon the request of a law enforcement officer. The law enforcement agency by which the officer is employed shall be prepared to administer, either at its agency or any other agency or facility, 2 of the 3 tests under sub.

(a),

(am), or

(ar), and may designate which of the tests shall be administered first.

(3)Requested or required.

(a)Upon arrest of a person for violation of s. 346.63

(1),

(2m)or

(5)or a local ordinance in conformity therewith, or for a violation of s. 346.63

(2)or

(6)or 940.25 , or s. 940.09 where the offense involved the use of a vehicle, or upon arrest subsequent to a refusal under par.

(ar), a law enforcement officer may request the person to provide one or more samples of his or her breath, blood or urine for the purpose specified under sub.

(2). Compliance with a request for one type of sample does not bar a subsequent request for a different type of sample.

(am)Prior to arrest, a law enforcement officer may request the person to provide one or more samples of his or her breath, blood or urine for the purpose specified under sub.

(2)whenever a law enforcement officer detects any presence of alcohol, a controlled substance, a controlled substance analog or other drug, or a combination thereof, on a person driving or operating or on duty time with respect to a commercial motor vehicle or has reason to believe the person is violating or has violated s. 346.63

(7). Compliance with a request for one type of sample does not bar a subsequent request for a different type of sample. For the purposes of this paragraph, “law enforcement officer” includes inspectors in the performance of duties under s. 110.07

(3).

1. If a person is the operator of a vehicle that is involved in an accident that causes substantial bodily harm, as defined in s. 939.22

(38), to any person, and a law enforcement officer detects any presence of alcohol, a controlled substance, a controlled substance analog or other drug, or a combination thereof, the law enforcement officer may request the operator to provide one or more samples of his or her breath, blood, or urine for the purpose specified under sub.

(2). Compliance with a request for one type of sample does not bar a subsequent request for a different type of sample. A person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent under this subdivision and one or more samples specified in par.

(a)or

(am)may be administered to the person. If a person refuses to take a test under this subdivision, he or she may be arrested under par.

(a).

343.305 Note NOTE: In State v. Prado , 2021 WI 64 , the Wisconsin Supreme Court held that the incapacitated driver provision is unconstitutional.

2. If a person is the operator of a vehicle that is involved in an accident that causes the death of or great bodily harm to any person and the law enforcement officer has reason to believe that the person violated any state or local traffic law, the officer may request the operator to provide one or more samples of his or her breath, blood, or urine for the purpose specified under sub.

(a)or

(am)may be administered to the person. If a person refuses to take a test under this subdivision, he or she may be arrested under par.

(a).

343.305 Note NOTE: In State v. Prado , 2021 WI 64 , the Wisconsin Supreme Court held that the incapacitated driver provision is unconstitutional.

(b)A person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent under this subsection, and if a law enforcement officer has probable cause to believe that the person has violated s. 346.63

(1),

(2m)or

(5)or a local ordinance in conformity therewith, or s. 346.63

(2)or

(6)or 940.25 , or s. 940.09 where the offense involved the use of a vehicle, or detects any presence of alcohol, controlled substance, controlled substance analog or other drug, or a combination thereof, on a person driving or operating or on duty time with respect to a commercial motor vehicle or has reason to believe the person has violated s. 346.63

(7), one or more samples specified in par.

(a)or

(am)may be administered to the person.

343.305 Note NOTE: In State v. Prado , 2021 WI 64 , the Wisconsin Supreme Court held that the incapacitated driver provision is unconstitutional.

(c)This section does not limit the right of a law enforcement officer to obtain evidence by any other lawful means.

(4)Information. At the time that a chemical test specimen is requested under sub.

(a),

(am), or

(ar), the law enforcement officer shall read the following to the person from whom the test specimen is requested:

“You have either been arrested for an offense that involves driving or operating a motor vehicle while under the influence of alcohol or drugs, or both, or you are the operator of a vehicle that was involved in an accident that caused the death of, great bodily harm to, or substantial bodily harm to a person, or you are suspected of driving or being on duty time with respect to a commercial motor vehicle after consuming an intoxicating beverage.

This law enforcement agency now wants to test one or more samples of your breath, blood or urine to determine the concentration of alcohol or drugs in your system. If any test shows more alcohol in your system than the law permits while driving, your operating privilege will be suspended. If you refuse to take any test that this agency requests, your operating privilege will be revoked and you will be subject to other penalties. The test results or the fact that you refused testing can be used against you in court.

If you take all the requested tests, you may choose to take further tests. You may take the alternative test that this law enforcement agency provides free of charge. You also may have a test conducted by a qualified person of your choice at your expense. You, however, will have to make your own arrangements for that test.

If you have a commercial driver license or were operating a commercial motor vehicle, other consequences may result from positive test results or from refusing testing, such as being placed out of service or disqualified.”

(5)Administering the test; additional tests.

(a)If the person submits to a test under this section, the officer shall direct the administering of the test. A blood test is subject to par.

(b). The person who submits to the test is permitted, upon his or her request, the alternative test provided by the agency under sub.

(2)or, at his or her own expense, reasonable opportunity to have any qualified person of his or her own choosing administer a chemical test for the purpose specified under sub.

(2). If the person has not been requested to provide a sample for a test under sub.

(a),

(am), or

(ar), the person may request a breath test to be administered by the agency or, at his or her own expense, reasonable opportunity to have any qualified person administer any test specified under sub.

(a),

(am), or

(ar). The failure or inability of a person to obtain a test at his or her own expense does not preclude the admission of evidence of the results of any test administered under sub.

(a),

(am), or

(ar). If a person requests the agency to administer a breath test and if the agency is unable to perform that test, the person may request the agency to perform a test under sub.

(a),

(am), or

(ar)that it is able to perform. The agency shall comply with a request made in accordance with this paragraph.

(b)Blood may be withdrawn from the person arrested for violation of s. 346.63

(1),

(2),

(2m),

(5), or

(6)or 940.25 , or s. 940.09 where the offense involved the use of a vehicle, or a local ordinance in conformity with s. 346.63

(1),

(2m), or

(5), or as provided in sub.

(am)or

(b)to determine the presence or quantity of alcohol, a controlled substance, a controlled substance analog, or any other drug, or any combination of alcohol, controlled substance, controlled substance analog, and any other drug in the blood only by a physician, registered nurse, medical technologist, physician assistant, phlebotomist, or other medical professional who is authorized to draw blood, or person acting under the direction of a physician.