343.307 Prior convictions, suspensions or revocations to be counted as offenses.

(1) The court shall count the following to determine the length of a revocation under s. 343.30 (1q) (b) and to determine the penalty under ss. 114.09 (2) and 346.65 (2):

(a) Convictions for violations under s. 346.63 (1), or a local ordinance in conformity with that section.

(b) Convictions for violations of a law of a federally recognized American Indian tribe or band in this state in conformity with s. 346.63 (1).

(c) Convictions for violations under s. 346.63 (2) or 940.25, or s. 940.09 where the offense involved the use of a vehicle.

(d) Convictions under the law of another jurisdiction that prohibits a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction's laws.

(e) Operating privilege suspensions or revocations under the law of another jurisdiction arising out of a refusal to submit to chemical testing.

(f) Revocations under s. 343.305 (10).

(g) Convictions for violations under s. 114.09 (1) (b) 1. or 1m.

(2) The court shall count the following to determine the length of a revocation under s. 343.305 (10) and to determine the penalty under s. 346.65 (2j) and to determine the prohibited alcohol concentration under s. 340.01 (46m):

(a) Convictions for violations under s. 346.63 (1) or (5), or a local ordinance in conformity with either section.

(b) Convictions for violations of a law of a federally recognized American Indian tribe or band in this state in conformity with s. 346.63 (1) or (5).

(c) Convictions for violations under s. 346.63 (2) or (6).

(d) Convictions under the law of another jurisdiction that is in substantial conformity with 49 CFR 383.51 (b) Table 1, items (1) to (4).

(e) Convictions under the law of another jurisdiction that prohibits a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction's laws.

(f) Operating privilege suspensions or revocations under the law of another jurisdiction arising out of a refusal to submit to chemical testing.

(g) Revocations under s. 343.305 (10).

(h) Convictions for violations under s. 940.09 (1) or 940.25.

(3) If the same elements of the offense must be proven under a local ordinance or under a law of a federally recognized American Indian tribe or band in this state as under s. 346.63 (1) (a), (am), or (b), any combination of s. 346.63 (1) (a), (am), or (b), or s. 346.63 (5), the local ordinance or the law of a federally recognized American Indian tribe or band in this state shall be considered to be in conformity with s. 346.63 (1) (a), (am), or (b), any combination of s. 346.63 (1) (a), (am), or (b), or s. 346.63 (5), for purposes of ss. 343.30 (1q) (b) 1., 343.305 (10) (b) 1. and 346.65 (2) and (2j).

History: 1977 c. 193; 1981 c. 20, 184; 1985 a. 80, 337; 1987 a. 3; 1989 a. 105, 271, 359; 1991 a. 39, 277; 1995 a. 448; 1997 a. 84; 2003 a. 33, 97; 2007 a. 20; 2009 a. 276.

An Illinois court's placement of an OWI offender under court supervision is a conviction that is counted as a prior offense under sub. (1) (d) when charging an OWI suspect in Wisconsin. Placement under court supervision as a result of a determination that the defendant violated or failed to comply with the law in a court of original jurisdiction meets the definition of conviction under s. 340.01 (9r). State v. List, 2004 WI App 230, 277 Wis. 2d 836, 691 N.W.2d 366, 03-3149.

The final phrase of sub. (1) (d), “as those or substantially similar terms are used in that jurisdiction's laws," indicates the broad scope of that provision. When determining a penalty, Wisconsin counts prior offenses committed in states with OWI statutes that differ significantly from Wisconsin's. “Substantially similar" simply emphasizes that the out-of-state statute need only prohibit conduct similar to the list of prohibited conduct in sub. (1) (d). State v. Puchacz, 2010 WI App 30, 323 Wis. 2d 741, 780 N.W.2d 536, 09-0840.

The definition of “conviction" in s. 340.01 (9r) applies to “convictions" in sub. (1) (d). Under sub. (1) (d), the other jurisdiction need only have a law that prohibits conduct specified in sub. (1) (d). The Illinois “zero tolerance" law punishes a person who is less than 21 years of age for refusing to submit to a chemical test, or for using a motor vehicle with an alcohol concentration above 0.00 and thus, in the context of sub. (1) (d), was a conviction under a law of another jurisdiction that prohibits refusal of chemical testing or prohibits using a motor vehicle with an excess or specified range of alcohol concentration. State v. Carter, 2010 WI 132, 330 Wis. 2d 1, 794 N.W.2d 213, 08-3144.

In sub. (1) (d), the phrase “with an excess or specified range of alcohol concentration" modifies the phrase “using a motor vehicle," not the phrase “ using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof." Thus, the statute should be read as follows: convictions under the law of another jurisdiction that prohibits a person from using a motor vehicle with an excess or specified range of alcohol concentration. State v. Carter, 2010 WI 132, 330 Wis. 2d 1, 794 N.W.2d 213, 08-3144.

The elements of an underlying first-offense OWI need not be proven to a jury beyond a reasonable doubt in a criminal proceeding for a subsequent OWI violation. State v. Verhagen, 2013 WI App 16, 346 Wis. 2d 196, 827 N.W.2d 891, 11-2033.

Sub. (1) (d)'s inclusion of out-of-state convictions under a law that prohibits driving “with an excess or specified range of alcohol concentration" does not violate the Equal Protection Clause, even if a consequence is to treat Illinois zero tolerance offenses differently than Wisconsin absolute sobriety offenses. Ease of administration in Wisconsin courts provides a rational basis for a single, straightforward, and broad definition of out-of-state offenses applicable to all other jurisdictions. The definition consistently counts all convictions under out-of-state laws prohibiting driving with an excess or specified range of alcohol concentration regardless of their labels or treatment. State v. Hirsch, 2014 WI App 39, 353 Wis. 2d 453, 847 N.W.2d 192, 13-0427.

Every term in sub. (1) (d) relates in some way to a person operating a motor vehicle with either drugs or alcohol, or both, in his or her system. That critical aspect is completely absent from the reckless driving offense of which the defendant was convicted. The initial charge, sanctions, and potential future consequences are of no moment. State v. Jackson, 2014 WI App 50, 354 Wis. 2d 99, 851 N.W.2d 465, 13-1282.

A prior expunged operating while intoxicated (OWI) conviction constitutes a prior conviction under sub. (1) when determining the penalty for OWI-related offenses. The state must prove the prior OWI conviction by a preponderance of the evidence if the prior conviction is not an element of the charged offense. State v. Braunschweig, 2018 WI 113, 384 Wis. 2d 742, 921 N.W.2d 199, 17-1261.

A conviction that has been collaterally attacked meets the definition of “conviction" under s. 340.01 (9r) because a collateral attack does not overturn or vacate the conviction. Instead, it attempts to avoid the conviction's force of law in a subsequent criminal proceeding. Thus, as long as the adjudication of guilt is unvacated, the conviction remains on DOT's records and should be counted in determining whether to revoke the offender's operating privilege. OAG 2-14.