Repealing unconstitutional provisions related to operating while intoxicated, the official text

2025 - 2026 LEGISLATURE
LRB-5907/1
ZDW:skw

2025 ASSEMBLY BILL 856
January 16, 2026 - Introduced by Representatives Spiros, Born, Dittrich, Gundrum, Kitchens, Murphy, Mursau, O'Connor and Penterman, cosponsored by Senators James, Jagler and Marklein. Referred to Committee on Judiciary.

An Act to repeal 23.33 (4p) (a) 3., 30.684 (1) (c), 343.305 (3) (ar), 343.305 (3) (b) and 350.104 (1) (c); to amend 23.33 (4p) (a) 2. b., 23.33 (4p) (c) 1., 23.33 (4p) (e) 3., 23.33 (13) (b) 2., 23.33 (13) (b) 3., 30.684 (1) (b) 2., 30.684 (3) (a), 30.684 (5) (c), 30.80 (6) (a) 2., 30.80 (6) (a) 3., 30.80 (6) (a) 4., 30.80 (6) (a) 5., 343.305 (2), 343.305 (3) (a), 343.305 (4), 343.305 (5) (a), 343.305 (5) (b), 343.305 (6) (b) 3., 343.305 (8) (c) 1., 343.305 (9) (a) 1., 343.305 (9) (c), 350.104 (1) (b) 2., 350.104 (3) (a), 350.104 (5) (c), 350.11 (3) (a) 2. and 350.11 (3) (a) 3.; to repeal and recreate 343.305 (3) (title) of the statutes; relating to: repealing 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:

Section 1. 23.33 (4p) (a) 2. b. of the statutes is amended to read:
23.33 (4p) (a) 2. b. That a refusal to provide a sample or to submit to a chemical test constitutes a violation under par. (e) and is subject to the same penalties and procedures as a violation of sub. (4c) (a) 1.

Section 2. 23.33 (4p) (a) 3. of the statutes is repealed.
Section 3. 23.33 (4p) (c) 1. of the statutes is amended to read:
23.33 (4p) (c) 1. ‘Additional chemical test.’ If a person is arrested for a violation of the intoxicated operation of an all-terrain vehicle or utility terrain vehicle law or is the operator of an all-terrain vehicle or utility terrain vehicle involved in an accident resulting in great bodily harm to or the death of someone and if the person is requested to provide a sample or to submit to a test under par. (a) 1., the person may request the test facility to administer the additional chemical test specified under par. (b) 3. or, at his or her own expense, reasonable opportunity to have any qualified person administer a chemical test of his or her breath, blood or urine for the purpose of authorized analysis.
Section 4. 23.33 (4p) (e) 3. of the statutes is amended to read:
23.33 (4p) (e) 3. Whether the law enforcement officer requested the person to provide a sample or to submit to a chemical test and provided the information required under par. (a) 2. or whether the request and information was unnecessary under par. (a) 3.
Section 5. 23.33 (13) (b) 2. of the statutes is amended to read:
23.33 (13) (b) 2. Except as provided under subd. 3., a person who violates sub. (4c) (a) 1., 2., or 2m. or (4p) (e) and who, within 5 years prior to the arrest for the current violation, was convicted previously under the intoxicated operation of an all-terrain vehicle or utility terrain vehicle law or the refusal law shall be fined not less than $300 nor more than $1,100 and shall be imprisoned not less than 5 days nor more than 6 months.
Section 6. 23.33 (13) (b) 3. of the statutes is amended to read:

23.33 (13) (b) 3. A person who violates sub. (4c) (a) 1., 2., or 2m. or (4p) (e) and who, within 5 years prior to the arrest for the current violation, was convicted 2 or more times previously under the intoxicated operation of an all-terrain vehicle or utility terrain vehicle law or refusal law shall be fined not less than $600 nor more than $2,000 and shall be imprisoned not less than 30 days nor more than one year in the county jail.
Section 7. 30.684 (1) (b) 2. of the statutes is amended to read:
30.684 (1) (b) 2. That a refusal to provide a sample or to submit to a chemical test constitutes a violation under sub. (5) and is subject to the same penalties and procedures as a violation of s. 30.681 (1) (a); and
Section 8. 30.684 (1) (c) of the statutes is repealed.
Section 9. 30.684 (3) (a) of the statutes is amended to read:
30.684 (3) (a) Additional chemical test. If a person is arrested for a violation of the intoxicated boating law or is the operator of a motorboat involved in an accident resulting in great bodily harm to or the death of someone and if the person is requested to provide a sample or to submit to a test under sub. (1) (a), the person may request the test facility to administer the additional chemical test specified under sub. (2) (c) or, at his or her own expense, reasonable opportunity to have any qualified person administer a chemical test of his or her breath, blood or urine for the purpose of authorized analysis.
Section 10. 30.684 (5) (c) of the statutes is amended to read:
30.684 (5) (c) Whether the law enforcement officer requested the person to provide a sample or to submit to a chemical test and provided the information
required under sub. (1) (b) or whether the request and information was unnecessary under sub. (1) (c).
Section 11. 30.80 (6) (a) 2. of the statutes is amended to read:
30.80 (6) (a) 2. A person who violates s. 30.681 (1) (a) or (b), a local ordinance in conformity with s. 30.681 (1) (a) or (b) or the refusal law and who, within 5 years prior to the arrest for the current violation, was convicted one time previously under the intoxicated boating law or the refusal law shall be fined not less than $300 nor more than $1,000 and shall be imprisoned for not less than 5 days nor more than 6 months.
Section 12. 30.80 (6) (a) 3. of the statutes is amended to read:
30.80 (6) (a) 3. A person who violates s. 30.681 (1) (a) or (b), a local ordinance in conformity with s. 30.681 (1) (a) or (b) or the refusal law and who, within 5 years prior to the arrest for the current violation, was convicted 2 times previously under the intoxicated boating law or refusal law shall be fined not less than $600 nor more than $2,000 and shall be imprisoned for not less than 30 days nor more than one year in the county jail.
Section 13. 30.80 (6) (a) 4. of the statutes is amended to read:
30.80 (6) (a) 4. A person who violates s. 30.681 (1) (a) or (b), a local ordinance in conformity with s. 30.681 (1) (a) or (b) or the refusal law and who, within 5 years prior to the arrest for the current violation, was convicted 3 times previously under the intoxicated boating law or refusal law shall be fined not less than $600 nor more than $2,000 and shall be imprisoned for not less than 60 days nor more than one year in the county jail.
Section 14. 30.80 (6) (a) 5. of the statutes is amended to read:

30.80 (6) (a) 5. A person who violates s. 30.681 (1) (a) or (b), a local ordinance in conformity with s. 30.681 (1) (a) or (b) or the refusal law and who, within 5 years prior to the arrest for the current violation, was convicted 4 or more times previously under the intoxicated boating law or refusal law shall be fined not less than $600 nor more than $2,000 and shall be imprisoned for not less than 6 months nor more than one year in the county jail.
Section 15. 343.305 (2) of the statutes is amended to read:
343.305 (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. (3) (a) or (am) or when required to do so under sub. (3) (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. (3) (a), or (am), or (ar), and may designate which of the tests shall be administered first.
Section 16. 343.305 (3) (title) of the statutes is repealed and recreated to read:
343.305 (3) (title) Request for tests.
Section 17. 343.305 (3) (a) of the statutes is amended to read:

343.305 (3) (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.
Section 18. 343.305 (3) (ar) of the statutes is repealed.
Section 19. 343.305 (3) (b) of the statutes is repealed.
Section 20. 343.305 (4) of the statutes is amended to read:
343.305 (4) Information. At the time that a chemical test specimen is requested under sub. (3) (a), or (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 after using 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 using alcohol or drugs, or both.
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 or a detectable amount of a restricted controlled substance, your operating privilege will be suspended. If you refuse to take any test that this agency requests
any requested test, 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 also choose to take further tests. You may take the alternative test that this law enforcement agency provides free of charge. You also may also 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.”
Section 21. 343.305 (5) (a) of the statutes is amended to read: