Section 343.44. Operating while suspended, revoked, ordered out-of-service or disqualified.

 

(1)   Operating offenses.

(a) Operating while suspended. No person whose operating privilege has been duly suspended under the laws of this state may operate a motor vehicle upon any highway in this state during the period of suspension or in violation of any restriction on an occupational license issued to the person during the period of suspension. A person's knowledge that his or her operating privilege is suspended is not an element of the offense under this paragraph. In this paragraph, “restriction on an occupational license" means restrictions imposed under s. 343.10 (5) (a) as to hours of the day, area, routes or purpose of travel, vehicles allowed to be operated, use of an ignition interlock device, sobriety or use of alcohol, controlled substances or controlled substance analogs.

(b) Operating while revoked. No person whose operating privilege has been duly revoked under the laws of this state may knowingly operate a motor vehicle upon any highway in this state during the period of revocation or in violation of any restriction on an occupational license issued to the person during the period of revocation. In this paragraph, “restriction on an occupational license" means restrictions imposed under s. 343.10 (5) (a) as to hours of the day, area, routes or purpose of travel, vehicles allowed to be operated, use of an ignition interlock device, sobriety or use of alcohol, controlled substances or controlled substance analogs.

(c) Operating while ordered out-of-service. No person may operate a commercial motor vehicle while the person or the commercial motor vehicle is ordered out-of-service under the law of this state or another jurisdiction or under federal law. No person may operate a commercial motor vehicle for which the motor carrier identified on the motor vehicle's registration application as the motor carrier responsible for safety of the vehicle has been issued a federal out-of-service order for unsatisfactory safety compliance, while this federal out-of-service order is in effect.

(d) Operating while disqualified. No person may operate a commercial motor vehicle while disqualified under s. 343.315 or 49 CFR 383.51 , under the law of another jurisdiction or Mexico that provides for disqualification of commercial drivers in a manner similar to 49 CFR 383.51 , or under a determination by the federal motor carrier safety administration under the federal rules of practice for motor carrier safety contained in 49 CFR 386 that the person is no longer qualified to operate a vehicle under 49 CFR 391 .

(1g)   Reinstatement required. Notwithstanding any specified term of suspension, revocation, cancellation or disqualification, the period of any suspension, revocation, cancellation or disqualification of an operator's license issued under this chapter or of an operating privilege continues until the operator's license or operating privilege is reinstated.

(2)   Penalties.

(ad) In this subsection, “great bodily harm" has the meaning given in s. 939.22 (14) .

(ag)

1. Except as provided in subds. 2. and 3. , any person who violates sub. (1) (a) shall be required to forfeit not less than $50 nor more than $200.

2. Any person who violates sub. (1) (a) and, in the course of the violation, causes great bodily harm to another person is required to forfeit not less than $5,000 nor more than $7,500, except that, if the person knows at the time of the violation that his or her operating privilege has been suspended, the person is guilty of a Class I felony.

3. Any person who violates sub. (1) (a) and, in the course of the violation, causes the death of another person is required to forfeit not less than $7,500 nor more than $10,000, except that, if the person knows at the time of the violation that his or her operating privilege has been suspended, the person is guilty of a Class H felony.

(ar)

1. Except as provided in subds. 2. to 4. , any person who violates sub. (1) (b) shall forfeit not more than $2,500.

2. Except as provided in subds. 3. and 4. , any person who violates sub. (1) (b) shall be fined not more than $2,500 or imprisoned for not more than one year in the county jail or both if the revocation identified under sub. (1) (b) resulted from an offense that may be counted under s. 343.307 (2) .

3. Any person who violates sub. (1) (b) and, in the course of the violation, causes great bodily harm to another person shall be fined not less than $5,000 nor more than $7,500 or imprisoned for not more than one year in the county jail or both, except that, if the person knows at the time of the violation that his or her operating privilege has been revoked, the person is guilty of a Class I felony.

4. Any person who violates sub. (1) (b) and, in the course of the violation, causes the death of another person shall be fined not less than $7,500 nor more than $10,000 or imprisoned for not more than one year in the county jail or both, except that, if the person knows at the time of the violation that his or her operating privilege has been revoked, the person is guilty of a Class H felony.

(b) In imposing a sentence under par. (ar) or (br) , the court shall review the record and consider the following:

1. The aggravating and mitigating circumstances in the matter, using the guidelines described in par. (d) .

2. The class of vehicle operated by the person.

3. The number of prior convictions of the person for violations of this section within the 5 years preceding the person's arrest.

4. The reason that the person's operating privilege was revoked, or the person was disqualified or ordered out of service, including whether the person's operating privilege was revoked for an offense that may be counted under s. 343.307 (2) .

5. Any convictions for moving violations arising out of the incident or occurrence giving rise to sentencing under this section.

(bm) Any person who violates sub. (1) (c) shall forfeit $2,500 for the first offense and $5,000 for the 2nd or subsequent offense within 10 years.

(br) Any person who violates sub. (1) (d) shall be fined not more than $2,500 or imprisoned for not more than one year in the county jail or both.

(c) In addition to other penalties for violation of this section, if a person violates this section while his or her operating privilege is revoked as provided in ch. 351 , the penalties may be enhanced by imprisonment and additional fines as provided in s. 351.08 . For the purpose of enforcing this paragraph, in any case in which the accused is charged with operating a motor vehicle while his or her operator's license, permit or privilege to operate is suspended or revoked or is charged with operating without a valid operator's license, the court, before hearing the charge, shall determine whether the person is a habitual traffic offender or repeat habitual traffic offender and therefore barred from operating a motor vehicle on the highways of this state.

(d) The chief judge of each judicial administrative district shall adopt guidelines, under the chief judge's authority to adopt local rules under SCR 70.34 , for the consideration of aggravating and mitigating factors. Such guidelines shall treat operators of commercial motor vehicles at least as stringently as operators of other classes of motor vehicles.

(2p)   Sentencing option. The legislature intends that courts use the sentencing option under s. 973.03 (4) whenever appropriate for persons subject to sub. (2) to provide cost savings for the state and for local governments. This option shall not be used if the suspension or revocation was for one of the following:

(a) Improperly refusing to take a test under s. 343.305 .

(b) Violating s. 346.63 (1) or (5) or a local ordinance in conformity therewith.

(c) Violating s. 346.63 (2) or (6) , 940.09 (1) or 940.25 .

(2r)   Prior convictions. For purposes of determining prior convictions under this section, the 5-year period shall be measured from the dates of the violations that resulted in the convictions and each conviction under sub. (2) shall be counted. Convictions of s. 343.44 (1) , 1997 stats., other than for operating a commercial motor vehicle while ordered out-of-service shall be counted under this section as prior convictions.

(2s)   Citations. Within 30 days after receipt by the department of a report from a law enforcement officer under s. 343.305 (7) or a court order under s. 343.28 of a violation committed by a person operating a commercial motor vehicle while subject to an out-of-service order under s. 343.305 (7) (b) or (9) (am) , a traffic officer employed under s. 110.07 may prepare a uniform traffic citation under s. 345.11 for a violation of sub. (1) (c) or (d) and serve it on the person. The citation may be served anywhere in this state and shall be served by delivering a copy to the person personally or by leaving a copy at the person's usual place of abode with a person of discretion residing therein or by mailing a copy to the person's last-known residence address. The venue for prosecution may be the county where the alleged offense occurred or in the person's county of residence.

(3)   Failure to receive notice. Refusal to accept or failure to receive an order of revocation, suspension or disqualification mailed by 1st class mail to such person's last-known address shall not be a defense to the charge of driving after revocation, suspension or disqualification. If the person has changed his or her address and fails to notify the department as required in s. 343.22 then failure to receive notice of revocation, suspension or disqualification shall not be a defense to the charge of driving after revocation, suspension or disqualification.

(4)   Impoundment. In addition to other penalties for violation of this section, if a person has violated this section with respect to a motor vehicle which he or she is the owner, the court may order the vehicle impounded. The court may determine the manner and period of impoundment. The cost of keeping the vehicle constitutes a lien on the vehicle.

(4r)   Violation of out-of-service order. In addition to other penalties for violation of this section, if a person has violated this section after the person or the commercial motor vehicle operated by the person was ordered out-of-service under the law of this state or another jurisdiction or under federal law, the violation shall result in disqualification under s. 343.315 (2) (h) or (i) .

(5)   Vehicle impoundment; lessors and secured creditors. If a motor vehicle impounded under sub. (4) is subject to a security agreement or lease contract, the vehicle shall be released by the court to the lessor or secured creditor upon the filing of an affidavit by the lessor or secured creditor that the security agreement or lease contract is in default and shall be delivered to the lessor or secured creditor upon payment of the accrued cost of keeping the motor vehicle.

1971 c. 164 s. 83 ; 1971 c. 280 , 307 ; 1973 c. 90 ; 1977 c. 29 s. 1654 (7) (a) ; 1977 c. 165 , 272 ; 1979 c. 221 ; 1981 c. 20 ; 1983 a. 535 ; 1989 a. 12 , 105 , 336 ; 1991 a. 39 , 64 , 189 , 277 ; 1995 a. 113 ; 1997 a. 84 ; 1999 a. 9 , 32 , 143 ; 2003 a. 33 ; 2005 a. 25 , 254 , 412 ; 2009 a. 28 ; 2011 a. 32 , 113 , 258 ; 2013 a. 165 . A certified copy of the department order revoking the defendant's driver license was admissible under s. 889.18 (2). State v. Mullis, 81 Wis. 2d 454 , 260 N.W.2d 696 (1978). The time between the violations underlying convictions, not the time between convictions, determines whether penalty enhancers apply. State v. Walczak, 157 Wis. 2d 661 , 460 N.W.2d 797 (Ct. App. 1990). The general requirements for establishing prior criminal offenses in s. 973.12 are not applicable to the penalty enhancement provisions for offenses under sub. (2). The convictions must be established by defendant's admission, copies of prior judgments, or a teletype of the DOT driving record. State v. Spaeth, 206 Wis. 2d 135 , 556 N.W.2d 728 (1996), 95-1827 . A circuit court may not determine the validity of a prior conviction during an enhanced sentencing proceeding predicated on the prior conviction unless the offender alleges that a violation of the right to a lawyer occurred in the prior conviction. The offender may use whatever means are available to challenge the other conviction in another forum, and if successful, seek to reopen the enhanced sentence. State v. Hahn, 2000 WI 118 , 238 Wis. 2d 889 , 618 N.W.2d 528 , 99-0554 . A person has a privilege, but not a right, to drive a motor vehicle upon a public highway. To exercise that privilege, the person must satisfy the licensing requirements of the state. Failing that, the person may be properly prosecuted and convicted of operating after suspension of his or her operating privileges. County of Fond du Lac v. Kevin C. Derksen, 2002 WI App 160 , 256 Wis. 2d 490 , 647 N.W.2d 922 , 01-2870 . A defendant may collaterally attack a prior conviction in an enhanced sentence proceeding on the ground that he or she was denied the constitutional right to counsel in the earlier case. The U. S. Supreme Court recognized that the information a defendant must possess to execute a valid waiver of counsel depends on a range of case-specific factors, including the defendant's education or sophistication. The Supreme Court's reference to a defendant's “education or sophistication" suggests that a court may take the defendant's cognitive limitations into account when determining the validity of his or her waiver. State v. Bohlinger, 2013 WI App 39 , 346 Wis. 2d 549 , 828 N.W.2d 900 , 12-1060 . Section 351.08 authorizes enhancements to penalties under this section; it does not create a separate substantive offense. 75 Atty. Gen. 106 .