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Wisconsin Legislature: SB845: Bill Text
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SB845: Bill Text
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2025 - 2026 LEGISLATURE
LRB-5050/1
ZDW:skw
2025 SENATE BILL 845
January 15, 2026 - Introduced by Senators
James
,
Jagler
and
Marklein
, cosponsored by Representatives
Spiros
,
Born
,
Dittrich
,
Gundrum
,
Kitchens
,
Murphy
,
Mursau
,
O'Connor
and
Penterman
. Referred to Committee on Judiciary and Public Safety.
SB845,1,9
1
An Act
to repeal
23.33 (4p) (a) 3., 30.684 (1) (c), 343.305 (3) (ar), 343.305 (3) (b)
2
and 350.104 (1) (c);
to amend
23.33 (4p) (a) 2. b., 23.33 (4p) (c) 1., 23.33 (4p) (e)
3
3., 23.33 (13) (b) 2., 23.33 (13) (b) 3., 30.684 (1) (b) 2., 30.684 (3) (a), 30.684 (5)
4
(c), 30.80 (6) (a) 2., 30.80 (6) (a) 3., 30.80 (6) (a) 4., 30.80 (6) (a) 5., 343.305 (2),
5
343.305 (3) (a), 343.305 (4), 343.305 (5) (a), 343.305 (5) (b), 343.305 (6) (b) 3.,
6
343.305 (8) (c) 1., 343.305 (9) (a) 1., 343.305 (9) (c), 350.104 (1) (b) 2., 350.104
7
(3) (a), 350.104 (5) (c), 350.11 (3) (a) 2. and 350.11 (3) (a) 3.;
to repeal and
8
recreate
343.305 (3) (title) of the statutes;
relating to:
repealing
9
unconstitutional provisions related to operating while intoxicated.
Analysis by the Legislative Reference Bureau
This bill modifies numerous provisions relating to operating a motor vehicle while intoxicated (OWI) to reflect holdings of the supreme courts of the United States and Wisconsin.
Under current law, no person may operate a motor vehicle while under the influence of an intoxicant, with a detectable amount of a restricted controlled substance in their blood, or with a prohibited alcohol concentration. Under current law, any person who operates a motor vehicle on public highways in this state is deemed to have given consent to one or more tests of their breath, blood, or urine, for the purpose of determining the presence or quantity in their blood or breath, of alcohol, controlled substances, controlled substance analogs, or other drugs (commonly known as “implied consent”).
Under current law, if a person is involved in a motor vehicle accident that causes substantial bodily harm, great bodily harm, or death and a law enforcement officer detects the presence of alcohol, controlled substances, controlled substance analogs, or other drugs, the person may be requested to provide one or more samples of their blood, breath, or urine for testing. If the person refuses, their operating privilege must be revoked. In
State v. Blackman,
2017 WI 77, 377 Wis. 2d 339, 898 N.W.2d 774, the Wisconsin Supreme Court held that probable cause of an OWI violation is a prerequisite to revocation of an operating license for a refusal. The bill modifies provisions consistent with this holding.
Under current law, a person who would be requested to provide samples for testing but who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent and one or more samples may be collected (commonly known as the “incapacitated driver provision”). In
State v. Prado
, 2021 WI 64, 397 Wis. 2d 719, 960 N.W.2d 869, the Wisconsin Supreme Court held that the incapacitated driver provision is unconstitutional. The bill repeals provisions consistent with this holding.
Under current law, there are separate but analogous implied consent and incapacitated driver provisions applicable to all-terrain vehicles (ATVs), utility terrain vehicles (UTVs), boats, and snowmobiles. Pursuant to
Prado,
these provisions are repealed. In addition, if a person refuses to submit to a test of their breath, blood, or urine related to their operation of an ATV, UTV, boat, or snowmobile, they are subject to a criminal penalty. In
Birchfield v. North Dakota
, 579 U.S. 438, 136 S. Ct. 2160, the U.S. Supreme Court held that it is unconstitutional to criminalize a refusal to submit to a blood test incident to arrest for an OWI violation. The bill modifies relevant provisions to reflect this holding.
The bill also modifies the text of the “informing the accused” form, which a law enforcement officer must read to a person from whom a test sample is requested, in part to reflect changes made by the bill.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
SB845,1
1
Section
1
.
23.33 (4p) (a) 2. b. of the statutes is amended to read:
SB845,2,4
2
23.33
(4p)
(a) 2. b. That a refusal to provide a sample or to submit to a
3
chemical test constitutes a violation under par. (e) and is subject to
the same
4
penalties
and procedures as a violation of sub. (4c) (a) 1
.
SB845,2
1
Section
2
.
23.33 (4p) (a) 3. of the statutes is repealed.
SB845,3
2
Section
3
.
23.33 (4p) (c) 1. of the statutes is amended to read:
SB845,3,11
3
23.33
(4p)
(c) 1. ‘Additional chemical test.’ If a person is arrested for a
4
violation of the intoxicated operation of an all-terrain vehicle or utility terrain
5
vehicle law
or is the operator of an all-terrain vehicle or utility terrain vehicle
6
involved in an accident resulting in great bodily harm to or the death of someone
7
and if the person is requested to provide a sample or to submit to a test under par.
8
(a) 1., the person may request the test facility to administer the additional chemical
9
test specified under par. (b) 3. or, at his or her own expense, reasonable opportunity
10
to have any qualified person administer a chemical test of his or her breath, blood or
11
urine for the purpose of authorized analysis.
SB845,4
12
Section
4
.
23.33 (4p) (e) 3. of the statutes is amended to read:
SB845,3,16
13
23.33
(4p)
(e) 3. Whether the law enforcement officer requested the person to
14
provide a sample or to submit to a chemical test and provided the information
15
required under par. (a) 2.
or whether the request and information was unnecessary
16
under par. (a) 3.
SB845,5
17
Section
5
.
23.33 (13) (b) 2. of the statutes is amended to read:
SB845,3,23
18
23.33
(13)
(b) 2. Except as provided under subd. 3., a person who violates sub.
19
(4c) (a) 1., 2., or 2m.
or (4p) (e)
and who, within 5 years prior to the arrest for the
20
current violation, was convicted previously under the intoxicated operation of an
21
all-terrain vehicle or utility terrain vehicle law
or the refusal law
shall be fined not
22
less than $300 nor more than $1,100 and shall be imprisoned not less than 5 days
23
nor more than 6 months.
SB845,6
24
Section
6
.
23.33 (13) (b) 3. of the statutes is amended to read:
SB845,4,6
1
23.33
(13)
(b) 3. A person who violates sub. (4c) (a) 1., 2., or 2m.
or (4p) (e)
and
2
who, within 5 years prior to the arrest for the current violation, was convicted 2 or
3
more times previously under the intoxicated operation of an all-terrain vehicle or
4
utility terrain vehicle law
or refusal law
shall be fined not less than $600 nor more
5
than $2,000 and shall be imprisoned not less than 30 days nor more than one year
6
in the county jail.
SB845,7
7
Section
7
.
30.684 (1) (b) 2. of the statutes is amended to read:
SB845,4,10
8
30.684
(1)
(b) 2. That a refusal to provide a sample or to submit to a chemical
9
test constitutes a violation under sub. (5) and is subject to
the same
penalties
and
10
procedures as a violation of s. 30.681 (1) (a)
; and
SB845,8
11
Section
8
.
30.684 (1) (c) of the statutes is repealed.
SB845,9
12
Section
9
.
30.684 (3) (a) of the statutes is amended to read:
SB845,4,20
13
30.684
(3)
(a)
Additional chemical test.
If a person is arrested for a violation
14
of the intoxicated boating law
or is the operator of a motorboat involved in an
15
accident resulting in great bodily harm to or the death of someone
and if the person
16
is requested to provide a sample or to submit to a test under sub. (1) (a), the person
17
may request the test facility to administer the additional chemical test specified
18
under sub. (2) (c) or, at his or her own expense, reasonable opportunity to have any
19
qualified person administer a chemical test of his or her breath, blood or urine for
20
the purpose of authorized analysis.
SB845,10
21
Section
10
.
30.684 (5) (c) of the statutes is amended to read:
SB845,5,2
22
30.684
(5)
(c) Whether the law enforcement officer requested the person to
23
provide a sample or to submit to a chemical test and provided the information
1
required under sub. (1) (b)
or whether the request and information was unnecessary
2
under sub. (1) (c)
.
SB845,11
3
Section
11
.
30.80 (6) (a) 2. of the statutes is amended to read:
SB845,5,9
4
30.80
(6)
(a) 2. A person who violates s. 30.681 (1) (a) or (b), a local ordinance
5
in conformity with s. 30.681 (1) (a) or (b)
or the refusal law
and who, within 5 years
6
prior to the arrest for the current violation, was convicted one time previously
7
under the intoxicated boating law or the refusal law shall be fined not less than
8
$300 nor more than $1,000 and shall be imprisoned for not less than 5 days nor
9
more than 6 months.
SB845,12
10
Section
12
.
30.80 (6) (a) 3. of the statutes is amended to read:
SB845,5,16
11
30.80
(6)
(a) 3. A person who violates s. 30.681 (1) (a) or (b), a local ordinance
12
in conformity with s. 30.681 (1) (a) or (b)
or the refusal law
and who, within 5 years
13
prior to the arrest for the current violation, was convicted 2 times previously under
14
the intoxicated boating law or refusal law shall be fined not less than $600 nor more
15
than $2,000 and shall be imprisoned for not less than 30 days nor more than one
16
year in the county jail.
SB845,13
17
Section
13
.
30.80 (6) (a) 4. of the statutes is amended to read:
SB845,5,23
18
30.80
(6)
(a) 4. A person who violates s. 30.681 (1) (a) or (b), a local ordinance
19
in conformity with s. 30.681 (1) (a) or (b)
or the refusal law
and who, within 5 years
20
prior to the arrest for the current violation, was convicted 3 times previously under
21
the intoxicated boating law or refusal law shall be fined not less than $600 nor more
22
than $2,000 and shall be imprisoned for not less than 60 days nor more than one
23
year in the county jail.
SB845,14
24
Section
14
.
30.80 (6) (a) 5. of the statutes is amended to read:
SB845,6,6
1
30.80
(6)
(a) 5. A person who violates s. 30.681 (1) (a) or (b), a local ordinance
2
in conformity with s. 30.681 (1) (a) or (b)
or the refusal law
and who, within 5 years
3
prior to the arrest for the current violation, was convicted 4 or more times
4
previously under the intoxicated boating law or refusal law shall be fined not less
5
than $600 nor more than $2,000 and shall be imprisoned for not less than 6 months
6
nor more than one year in the county jail.
SB845,15
7
Section
15
.
343.305 (2) of the statutes is amended to read:
SB845,6,20
8
343.305
(2)
Implied consent.
Any person who is on duty time with respect to
9
a commercial motor vehicle or drives or operates a motor vehicle upon the public
10
highways of this state, or in those areas enumerated in s. 346.61, is deemed to have
11
given consent to one or more tests of his or her breath, blood or urine, for the
12
purpose of determining the presence or quantity in his or her blood or breath, of
13
alcohol, controlled substances, controlled substance analogs or other drugs, or any
14
combination of alcohol, controlled substances, controlled substance analogs and
15
other drugs, when requested to do so by a law enforcement officer under sub. (3) (a)
16
or (am)
or when required to do so under sub. (3) (ar) or (b)
. Any such tests shall be
17
administered upon the request of a law enforcement officer. The law enforcement
18
agency by which the officer is employed shall be prepared to administer, either at its
19
agency or any other agency or facility, 2 of the 3 tests under sub. (3) (a)
,
or
(am)
, or
20
(ar),
and may designate which of the tests shall be administered first.
SB845,16
21
Section
16
.
343.305 (3) (title) of the statutes is repealed and recreated to
22
read:
SB845,6,23
23
343.305
(3)
(title)
Request for tests.
SB845,17
24
Section
17
.
343.305 (3) (a) of the statutes is amended to read:
SB845,7,7
1
343.305
(3)
(a) Upon arrest of a person for violation of s. 346.63 (1), (2m) or (5)
2
or a local ordinance in conformity therewith, or for a violation of s. 346.63 (2) or (6)
3
or 940.25, or s. 940.09 where the offense involved the use of a vehicle,
or upon arrest
4
subsequent to a refusal under par. (ar),
a law enforcement officer may request the
5
person to provide one or more samples of his or her breath, blood or urine for the
6
purpose specified under sub. (2). Compliance with a request for one type of sample
7
does not bar a subsequent request for a different type of sample.
SB845,18
8
Section
18
.
343.305 (3) (ar) of the statutes is repealed.
SB845,19
9
Section
19
.
343.305 (3) (b) of the statutes is repealed.
SB845,20
10
Section
20
.
343.305 (4) of the statutes is amended to read:
SB845,7,13
11
343.305
(4)
Information.
At the time that a chemical test specimen is
12
requested under sub. (3) (a)
,
or
(am),
or (ar),
the law enforcement officer shall read
13
the following to the person from whom the test specimen is requested:
SB845,7,19
14
“You have either been arrested for an offense that involves driving or operating
15
a motor vehicle
while under the influence of
after using
alcohol or drugs, or both,
or
16
you are the operator of a vehicle that was involved in an accident that caused the
17
death of, great bodily harm to, or substantial bodily harm to a person,
or you are
18
suspected of driving or being on duty time with respect to a commercial motor
19
vehicle after
consuming an intoxicating beverage
using alcohol or drugs, or both
.
SB845,8,3
20
This law enforcement agency now wants to test one or more samples of your
21
breath, blood or urine to determine the concentration of alcohol or drugs in your
22
system. If any test shows more alcohol in your system than the law permits while
23
driving
or a detectable amount of a restricted controlled substance
, your operating
24
privilege will be suspended. If you refuse
to take any test that this agency requests
1
any requested test
, your operating privilege will be revoked and you will be subject
2
to other penalties. The test results or the fact that you refused testing can be used
3
against you in court.
SB845,8,8
4
If you take all the requested tests, you may
also
choose to take
further tests.
5
You may take
the alternative test that this law enforcement agency provides free of
6
charge. You
also
may
also
have a test conducted by a qualified person of your choice
7
at your expense. You, however, will have to make your own arrangements for that
8
test.
SB845,8,11
9
If you have a commercial driver license or were operating a commercial motor
10
vehicle, other consequences may result from positive test results or from refusing
11
testing, such as being placed out of service or disqualified.”
SB845,21
12
Section
21
.
343.305 (5) (a) of the statutes is amended to read:
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