Section 346.65. Penalty for violating sections 346.62 to 346.64

  .

(1)  Except as provided in sub. (5m) , any person who violates s. 346.62 (2) :

(a) May be required to forfeit not less than $25 nor more than $200, except as provided in par. (b) .

(b) May be fined not less than $50 nor more than $500 or imprisoned for not more than one year in the county jail or both if the total of convictions under s. 346.62 (2) or a local ordinance in conformity therewith or a law of a federally recognized American Indian tribe or band in this state in conformity with s. 346.62 (2) equals 2 or more in a 4-year period. The 4-year period shall be measured from the dates of the violations which resulted in the convictions.

(2)  

(am) Any person violating s. 346.63 (1) :

1. Shall forfeit not less than $150 nor more than $300, except as provided in subds. 2. to 5. and par. (f) .

2. Except as provided in pars. (bm) and (f) , shall be fined not less than $350 nor more than $1,100 and imprisoned for not less than 5 days nor more than 6 months if the number of convictions under ss. 940.09 (1) and 940.25 in the person's lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1) within a 10-year period, equals 2, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one.

3. Except as provided in pars. (cm) , (f) , and (g) , shall be fined not less than $600 nor more than $2,000 and imprisoned for not less than 45 days nor more than one year in the county jail if the number of convictions under ss. 940.09 (1) and 940.25 in the person's lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1) , equals 3, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one.

4. Except as provided in pars. (dm) , (f) , and (g) , is guilty of a Class H felony and shall be fined not less than $600 and imprisoned for not less than 60 days if the number of convictions under ss. 940.09 (1) and 940.25 in the person's lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1) , equals 4, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one.

5. Except as provided in pars. (f) and (g) , is guilty of a Class G felony and shall be fined not less than $600 and imprisoned for not less than 6 months if the number of convictions under ss. 940.09 (1) and 940.25 in the person's lifetime, plus the total number of suspensions, revocations and other convictions counted under s. 343.307 (1) , equals 5 or 6, except that suspensions, revocations or convictions arising out of the same incident or occurrence shall be counted as one.

6. Except as provided in par. (f) , is guilty of a Class F felony if the number of convictions under ss. 940.09 (1) and 940.25 in the person's lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1) , equals 7, 8, or 9, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one. The court shall impose a bifurcated sentence under s. 973.01 and the confinement portion of the bifurcated sentence imposed on the person shall be not less than 3 years.

7. Except as provided in par. (f) , is guilty of a Class E felony if the number of convictions under ss. 940.09 (1) and 940.25 in the person's lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1) , equals 10 or more except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one. The court shall impose a bifurcated sentence under s. 973.01 and the confinement portion of the bifurcated sentence imposed on the person shall be not less than 4 years.

(bm) In any county that opts to offer a reduced minimum period of imprisonment for the successful completion of a probation period that includes alcohol and other drug treatment, if the number of convictions under ss. 940.09 (1) and 940.25 in the person's lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1) within a 10-year period, equals 2, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one, the fine shall be the same as under par. (am) 2. , but the period of imprisonment shall be not less than 5 days, except that if the person successfully completes a period of probation that includes alcohol and other drug treatment, the period of imprisonment shall be not less than 5 nor more than 7 days. A person may be sentenced under this paragraph or under par. (cm) or (dm) or sub. (2j) (bm) , (cm) , or (cr) or (3r) once in his or her lifetime.

(cm) In any county that opts to offer a reduced minimum period of imprisonment for the successful completion of a probation period that includes alcohol and other drug treatment, if the number of convictions under ss. 940.09 (1) and 940.25 in the person's lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1) equals 3, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one, the fine shall be the same as under par. (am) 3. , but the period of imprisonment shall be not less than 45 days, except that if the person successfully completes a period of probation that includes alcohol and other drug treatment, the period of imprisonment shall be not less than 14 days. A person may be sentenced under this paragraph or under par. (bm) or (dm) or sub. (2j) (bm) , (cm) , or (cr) or (3r) once in his or her lifetime.

(dm) In any county that opts to offer a reduced minimum period of imprisonment for the successful completion of a probation period that includes alcohol and other drug treatment, if the number of convictions under ss. 940.09 (1) and 940.25 in the person's lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1) equals 4, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one, the fine shall be the same as under par. (am) 4. , but the period of imprisonment shall be not less than 60 days, except that if the person successfully completes a period of probation that includes alcohol and other drug treatment, the period of imprisonment shall be not less than 29 days. A person may be sentenced under this paragraph or under par. (bm) or (cm) or sub. (2j) (bm) , (cm) , or (cr) or (3r) once in his or her lifetime.

(f)

1. If there was a minor passenger under 16 years of age in the motor vehicle at the time of the violation that gave rise to the conviction under s. 346.63 (1) , the person shall be fined not less than $350 nor more than $1,100 and imprisoned for not less than 5 days nor more than 6 months, except as provided in subd. 2.

2. If there was a minor passenger under 16 years of age in the motor vehicle at the time of the violation that gave rise to the conviction under s. 346.63 (1) , the applicable minimum and maximum fines and imprisonment under par. (am) 2. to 7. for the conviction are doubled. An offense under s. 346.63 (1) that subjects a person to a penalty under par. (am) 3. , 4. , 5. , 6. , or 7. when there is a minor passenger under 16 years of age in the motor vehicle is a felony and the place of imprisonment shall be determined under s. 973.02 .

(g)

1. If a person convicted had an alcohol concentration of 0.17 to 0.199, the applicable minimum and maximum fines under par. (am) 3. to 5. are doubled.

2. If a person convicted had an alcohol concentration of 0.20 to 0.249, the applicable minimum and maximum fines under par. (am) 3. to 5. are tripled.

3. If a person convicted had an alcohol concentration of 0.25 or above, the applicable minimum and maximum fines under par. (am) 3. to 5. are quadrupled.

(2c)  In sub. (2) (am) 2. , 3. , 4. , 5. , 6. , and 7. , the time period shall be measured from the dates of the refusals or violations that resulted in the revocation or convictions. If a person has a suspension, revocation, or conviction for any offense under a local ordinance or a state statute of another state that would be counted under s. 343.307 (1) , that suspension, revocation, or conviction shall count as a prior suspension, revocation, or conviction under sub. (2) (am) 2. , 3. , 4. , 5. , 6. , and 7.

(2e)  If the court determines that a person does not have the ability to pay the costs and fine or forfeiture imposed under sub. (2) (am) , (f) , or (g) , the court may reduce the costs, fine, and forfeiture imposed and order the person to pay, toward the cost of the assessment and driver safety plan imposed under s. 343.30 (1q) (c) , the difference between the amount of the reduced costs and fine or forfeiture and the amount of costs and fine or forfeiture imposed under sub. (2) (am) , (f) , or (g) .

(2g)  

(a) In addition to the authority of the court under s. 973.05 (3) (a) to provide that a defendant perform community service work for a public agency or a nonprofit charitable organization in lieu of part or all of a fine imposed under sub. (2) (am) 2. , 3. , 4. , and 5. , (f) , and (g) and except as provided in par. (ag) , the court may provide that a defendant perform community service work for a public agency or a nonprofit charitable organization in lieu of part or all of a forfeiture under sub. (2) (am) 1. or may require a person who is subject to sub. (2) to perform community service work for a public agency or a nonprofit charitable organization in addition to the penalties specified under sub. (2) .

(ag) If the court determines that a person does not have the ability to pay a fine imposed under sub. (2) (am) 2. , 3. , 4. , or 5. , (f) , or (g) , the court shall require the defendant to perform community service work for a public agency or a nonprofit charitable organization in lieu of paying the fine imposed or, if the amount of the fine was reduced under sub. (2e) , in lieu of paying the remaining amount of the fine. Each hour of community service performed in compliance with an order under this paragraph shall reduce the amount of the fine owed by an amount determined by the court.

(am) Notwithstanding s. 973.05 (3) (b) , an order under par. (a) or (ag) may apply only if agreed to by the organization or agency. The court shall ensure that the defendant is provided a written statement of the terms of the community service order and that the community service order is monitored. Any organization or agency acting in good faith to which a defendant is assigned pursuant to an order under this subsection has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the defendant. The issuance or possibility of the issuance of a community service order under this subsection does not entitle an indigent defendant who is subject to sub. (2) (am) 1. to representation by counsel under ch. 977 .

(b) The court may require a person ordered to perform community service work under par. (a) or (ag) , or under s. 973.05 (3) (a) if that person's fine resulted from violating s. 346.63 (2) , 940.09 (1) or 940.25 , to participate in community service work that demonstrates the adverse effects of substance abuse or of operating a vehicle while under the influence of an intoxicant or other drug, including working at an alcoholism treatment facility approved under s. 51.45 , an emergency room of a general hospital or a driver awareness program under s. 346.637 . The court may order the person to pay a reasonable fee, based on the person's ability to pay, to offset the cost of establishing, maintaining and monitoring the community service work ordered under this paragraph. If the opportunities available to perform community service work are fewer in number than the number of defendants eligible under this subsection, the court shall, when making an order under this paragraph, give preference to defendants who were under 21 years of age at the time of the offense. All provisions of par. (am) apply to any community service work ordered under this paragraph.

(c) If there was a minor passenger under 16 years of age in the motor vehicle or commercial motor vehicle at the time of the violation that gave rise to the conviction, the court may require a person ordered to perform community service work under par. (a) or (ag) , under s. 973.05 (3) (a) if that person's fine resulted from violating s. 346.63 (2) , (5) (a) or (6) (a) , 940.09 (1) or 940.25 , or under s. 973.05 (3) (a) if that person's fine resulted from violating s. 346.63 (1) (am) and the motor vehicle that the person was driving or operating was a commercial motor vehicle, to participate in community service work that benefits children or that demonstrates the adverse effects on children of substance abuse or of operating a vehicle while under the influence of an intoxicant or other drug. The court may order the person to pay a reasonable fee, based on the person's ability to pay, to offset the cost of establishing, maintaining and monitoring the community service work ordered under this paragraph.

(d) With respect to imprisonment under sub. (2) (am) 2. , the court shall ensure that the person is imprisoned for not less than 5 days or ordered to perform not less than 30 days of community service work under s. 973.03 (3) (a) .

(2i)  In addition to the authority of the court under sub. (2g) and s. 973.05 (3) (a) , the court may order a defendant subject to sub. (2) , or a defendant subject to s. 973.05 (3) (a) who violated s. 346.63 (2) , 940.09 (1) , or 940.25 , to visit a site that demonstrates the adverse effects of substance abuse or of operating a vehicle while under the influence of an intoxicant or other drug, including an alcoholism treatment facility approved under s. 51.45 or an emergency room of a general hospital in lieu of part or all of any forfeiture imposed or in addition to any penalty imposed. The court may order the defendant to pay a reasonable fee, based on the person's ability to pay, to offset the costs of establishing, maintaining, and monitoring the visits ordered under this subsection. The court may order a visit to the site only if agreed to by the person responsible for the site. If the opportunities available to visit sites under this subsection are fewer than the number of defendants eligible for a visit, the court shall, when making an order under this subsection, give preference to defendants who were under 21 years of age at the time of the offense. The court shall ensure that the visit is monitored. A visit to a site may be ordered for a specific time and a specific day to allow the defendant to observe victims of vehicle accidents involving intoxicated drivers. If it appears to the court that the defendant has not complied with the court order to visit a site or to pay a reasonable fee, the court may order the defendant to show cause why he or she should not be held in contempt of court. Any organization or agency acting in good faith to which a defendant is assigned pursuant to an order under this subsection has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the defendant. The issuance or possibility of the issuance of an order under this subsection does not entitle an indigent defendant who is subject to sub. (2) (am) 1. to representation by counsel under ch. 977 .

(2j)  

(am) Any person violating s. 346.63 (5) :

1. Shall forfeit not less than $150 nor more than $300 except as provided in subd. 2. or 3. or par. (d) .

2. Except as provided in pars. (bm) and (d) , shall be fined not less than $300 nor more than $1,000 and imprisoned for not less than 5 days nor more than 6 months if the number of prior convictions under ss. 940.09 (1) and 940.25 in the person's lifetime, plus the total number of other convictions, suspension, and revocations counted under s. 343.307 (2) within a 10-year period, equals 2.

3. Except as provided in pars. (cm) , (cr) , and (d) , shall be fined not less than $600 nor more than $2,000 and imprisoned for not less than 45 days nor more than one year in the county jail if the number of convictions under ss. 940.09 (1) and 940.25 in the person's lifetime, plus the total number of other convictions, suspensions, and revocations counted under s. 343.307 (2) , equals 3 or more.

(bm) In any county that opts to offer a reduced minimum period of imprisonment for the successful completion of a probation period that includes alcohol and other drug treatment, if the number of convictions under ss. 940.09 (1) and 940.25 in the person's lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1) within a 10-year period, equals 2, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one, the fine shall be the same as under par. (am) 2. , but the period of imprisonment shall be not less than 5 days, except that if the person successfully completes a period of probation that includes alcohol and other drug treatment, the period of imprisonment shall be not less than 5 nor more than 7 days. A person may be sentenced under this paragraph or under par. (cm) or (cr) or sub. (2) (bm) , (cm) , or (dm) or (3r) once in his or her lifetime.

(cm) In any county that opts to offer a reduced minimum period of imprisonment for the successful completion of a probation period that includes alcohol and other drug treatment, if the number of convictions under ss. 940.09 (1) and 940.25 in the person's lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1) equals 3, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one, the fine shall be the same as under par. (am) 3. , but the period of imprisonment shall be not less than 45 days, except that if the person successfully completes a period of probation that includes alcohol and other drug treatment, the period of imprisonment shall be not less than 14 days. A person may be sentenced under this paragraph or under par. (bm) or (cr) or sub. (2) (bm) , (cm) , or (dm) or (3r) once in his or her lifetime.

(cr) In any county that opts to offer a reduced minimum period of imprisonment for the successful completion of a probation period that includes alcohol and other drug treatment, if the number of convictions under ss. 940.09 (1) and 940.25 in the person's lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1) equals 4, except that suspensions, revocations, or convictions arising out of the same incident or occurrence shall be counted as one, the fine shall be the same as under par. (am) 3. , but the period of imprisonment shall be not less than 60 days, except that if the person successfully completes a period of probation that includes alcohol and other drug treatment, the period of imprisonment shall be not less than 29 days. A person may be sentenced under this paragraph or under par. (bm) or (cm) or sub. (2) (bm) , (cm) , or (dm) or (3r) once in his or her lifetime.

(d) If there was a minor passenger under 16 years of age in the commercial motor vehicle at the time of the violation that gave rise to the conviction under s. 346.63 (5) , the applicable minimum and maximum forfeitures, fines, or imprisonment under par. (am) 1. , 2. , or 3. for the conviction are doubled. An offense under s. 346.63 (5) that subjects a person to a penalty under par. (am) 3. when there is a minor passenger under 16 years of age in the commercial motor vehicle is a felony and the place of imprisonment shall be determined under s. 973.02 .

(2m)  

(a) In imposing a sentence under sub. (2) for a violation of s. 346.63 (1) (am) or (b) or (5) or a local ordinance in conformity therewith, the court shall review the record and consider the aggravating and mitigating factors in the matter. If the amount of alcohol in the person's blood or urine or the amount of a restricted controlled substance in the person's blood is known, the court shall consider that amount as a factor in sentencing. 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.

(b) The court shall consider a report submitted under s. 51.49 (2) (d) when imposing a sentence under sub. (2) , (2q) , or (3m) .

(2q)  Any person violating s. 346.63 (2m) shall forfeit $200. If there was a minor passenger under 16 years of age in the motor vehicle at the time of the violation that gave rise to the conviction under 346.63 (2m), the person shall be fined $400.

(2r)  

(a) In addition to the other penalties provided for violation of s. 346.63 , a judge may order a defendant to pay restitution under s. 973.20 .

(b) This subsection is applicable in actions concerning violations of local ordinances in conformity with s. 346.63 .

(2u)  

(a) Any person violating s. 346.63 (7) shall forfeit $10.

(b) Upon his or her arrest for a violation of s. 346.63 (7) , a person shall be issued an out-of-service order for a 24-hour period by the arresting officer under s. 343.305 (7) (b) or (9) (am) .

(c) If a person arrested for a violation of s. 346.63 (7) refuses to take a test under s. 343.305 , the refusal is a separate violation and the person is subject to revocation of the person's operating privilege under s. 343.305 (10) (em) .

(2w)  In determining the number of prior convictions for purposes of sub. (2j) , the court shall count convictions under ss. 940.09 (1) and 940.25 in the person's lifetime, plus other suspensions, revocations and convictions counted under s. 343.307 (2) . Revocations, suspensions and convictions arising out of the same incident or occurrence shall be counted as one. The time period shall be measured from the dates of the refusals or violations which resulted in the revocation, suspension or convictions. If a person has a conviction under s. 940.09 (1) or 940.25 in the person's lifetime, or another suspension, revocation or conviction for any offense that is counted under s. 343.307 (2) , that suspension, revocation or conviction shall count as a prior suspension, revocation or conviction under this section.

(3)  Except as provided in sub. (5m) , any person violating s. 346.62 (3) shall be fined not less than $300 nor more than $2,000 and may be imprisoned for not less than 30 days nor more than one year in the county jail.

(3m)  Except as provided in sub. (3p) , (3r) , or (3t) , any person violating s. 346.63 (2) or (6) shall be fined not less than $300 nor more than $2,000 and shall be imprisoned for not less than 30 days nor more than one year in the county jail. If there was a minor passenger under 16 years of age in the motor vehicle at the time of the violation that gave rise to the conviction under s. 346.63 (2) or (6) , the offense is a felony, the applicable minimum and maximum fines or periods of imprisonment for the conviction are doubled and the place of imprisonment shall be determined under s. 973.02 .

(3p)  Any person violating s. 346.63 (2) or (6) is guilty of a Class H felony if the person has one or more prior convictions, suspensions, or revocations, as counted under s. 343.307 (1) . If there was a minor passenger under 16 years of age in the motor vehicle at the time of the violation that gave rise to the conviction under s. 346.63 (2) or (6) , the offense is a felony and the applicable maximum fines or periods of imprisonment for the conviction are doubled.

(3r)  Subject to sub. (3t) , in any county that opts to offer a reduced minimum period of imprisonment for the successful completion of a probation period that includes alcohol and other drug treatment, any person violating s. 346.63 (2) or (6) shall be fined the same as under sub. (3m) , but the period of imprisonment shall be not less than 30 days, except that if the person successfully completes a period of probation that includes alcohol and other drug treatment, the period of imprisonment shall be not less than 15 days. If there was a minor passenger under 16 years of age in the motor vehicle at the time of the violation that gave rise to the conviction under s. 346.63 (2) or (6) , the offense is a felony, the applicable minimum and maximum fines or periods of imprisonment for the conviction are doubled and the place of imprisonment shall be determined under s. 973.02 . A person may be sentenced under this subsection or under sub. (2) (bm) or (cm) or (2j) (bm) or (cm) once in his or her lifetime. This subsection does not apply to a person sentenced under sub. (3p) .

(3t)  If the person injured was an adult who was in the vehicle operated by the person violating s. 346.63 (2) or (6) , the court may impose a sentence that is less than the minimum sentence required under sub. (3m) if the court finds that the best interest of the community will be served and the public will not be harmed by the sentence, and the court places the reasons for imposing a sentence that is less than the minimum sentence required under sub. (3m) on the record.

(4)  Any person violating s. 346.64 may be fined not less than $50 nor more than $500 or imprisoned not more than 6 months or both.

(4m)  Except as provided in sub. (5m) , any person violating s. 346.62 (2m) shall forfeit not less than $300 nor more than $1,000.

(4r)  

(a) If a court imposes a forfeiture under sub. (4m) for a violation of s. 346.62 (2m) , the court shall also impose a railroad crossing improvement surcharge under ch. 814 equal to 50 percent of the amount of the forfeiture.

(b) If a forfeiture is suspended in whole or in part, the railroad crossing improvement surcharge shall be reduced in proportion to the suspension.

(c) If any deposit is made for an offense to which this subsection applies, the person making the deposit shall also deposit a sufficient amount to include the railroad crossing improvement surcharge under this subsection. If the deposit is forfeited, the amount of the railroad crossing improvement surcharge shall be transmitted to the secretary of administration under par. (d) . If the deposit is returned, the amount of the railroad crossing improvement surcharge shall also be returned.

(d) The clerk of the circuit court shall collect and transmit to the county treasurer the railroad crossing improvement surcharge as required under s. 59.40 (2) (m) . The county treasurer shall then pay the secretary of administration as provided in s. 59.25 (3) (f) 2. The secretary of administration shall deposit all amounts received under this paragraph in the transportation fund to be appropriated under s. 20.395 (2) (gj) .

(5)  Except as provided in sub. (5m) , any person violating s. 346.62 (4) is guilty of a Class I felony.

(5m)  If an operator of a vehicle violates s. 346.62 (2) to (4) where persons engaged in work in a highway maintenance or construction area or in a utility work area are at risk from traffic or where sanitation workers are at risk from traffic and the operator knows or should know that sanitation workers are present, any applicable minimum and maximum forfeiture or fine specified in sub. (1) , (3) , (4m) , or (5) for the violation shall be doubled.

(7)  A person convicted under sub. (2) (am) 2. , 3. , 4. , 5. , 6. , or 7. or (2j) (am) 2. or 3. shall be required to remain in the county jail for not less than a 48-consecutive-hour period.

1971 c. 278 ; 1973 c. 218 ; 1977 c. 193 ; 1979 c. 221 ; 1981 c. 20 ; 1985 a. 80 , 337 ; 1987 a. 3 , 27 , 398 , 399 ; 1989 a. 105 , 176 , 271 ; 1991 a. 39 , 251 , 277 , 315 ; 1993 a. 198 , 317 , 475 ; 1995 a. 44 , 338 , 359 , 425 ; 1997 a. 27 , 135 , 199 , 237 , 277 , 283 , 295 ; 1999 a. 32 , 109 ; 2001 a. 16 ss. 3443k , 4060gm , 4060hw , 4060hy ; 2001 a. 109 ; 2003 a. 33 , 97 , 139 , 326 ; 2005 a. 149 , 317 , 389 ; 2007 a. 97 , 111 ; 2009 a. 100 , 180 ; 2011 a. 258 ; 2013 a. 39 , 224 ; 2015 a. 55 , 371 . Cross-reference: For suspension or revocation of operating privileges upon convictions for OWI see s. 343.30 . Penalty provisions of sub. (2) are mandatory and apply to subsequent violations committed prior to a conviction for the 1st offense. State v. Banks, 105 Wis. 2d 32 , 313 N.W.2d 67 (1981). When the accused was represented by counsel in proceedings leading to the 2nd conviction, but not the first, there was no violation of the right to counsel precluding incarceration for the 2nd conviction since the first offense was a civil forfeiture case. State v. Novak, 107 Wis. 2d 31 , 318 N.W.2d 364 (1982). The state has exclusive jurisdiction over 2nd offense for drunk driving. It is criminal and may not be prosecuted as an ordinance violation. County of Walworth v. Rohner, 108 Wis. 2d 713 , 324 N.W.2d 682 (1982). But see City of Eau Claire v. Booth, 2016 WI 65 , ___ Wis. 2d ___, 882 N.W.2d 738 , 15-0869 . Under sub. (3), a fine is mandatory but a jail sentence is discretionary. State v. McKenzie, 139 Wis. 2d 171 , 407 N.W.2d 274 (Ct. App. 1987). Probation with a condition of 30-days' confinement in the county jail is inadequate to meet the mandatory imprisonment requirement of sub. (2) (c) [now sub. (2) (am) 3.]. State v. Meddaugh, 148 Wis. 2d 204 , 435 N.W.2d 269 (Ct. App. 1988). An OWI conviction in another state need not be under a law with the same elements as the Wisconsin statute to be counted as a prior conviction. State v. White, 177 Wis. 2d 121 , 501 N.W.2d 463 (Ct. App. 1993). A judgment entered in municipal court against a defendant for what is actually a second or subsequent offense is void. The state may proceed against the defendant criminally regardless of whether the judgment in municipal court is vacated. City of Kenosha v. Jensen, 184 Wis. 2d 91 , 516 N.W.2d 4 (Ct. App. 1994). The general requirements for establishing prior criminal offenses in s. 973.12 are not applicable to the penalty enhancement provisions for drunk driving offenses under sub. (2). There is no presumption of innocence accruing to the defendant as to prior convictions, but the accused must have an opportunity to challenge the existence of the prior offense. State v. Wideman, 206 Wis. 2d 91 , 556 N.W.2d 737 (1996), 95-0852 . Sub. (2) is primarily a penalty enhancement statute. When a prior conviction is determined to be constitutionally defective, that conviction cannot be relied on for either charging or sentencing a present offense. State v. Foust, 214 Wis. 2d 568 , 570 N.W.2d 905 (Ct. App. 1997), 97-0499 . A trial court cannot accept guilty pleas to both a second and a third offense OWI, and then apply the increased penalties of third offense OWI to the second offense conviction at sentencing. There must be a conviction before the graduated penalties can be used. State v. Skibinski, 2001 WI App 109 , 244 Wis. 2d 229 , 629 N.W.2d 12 , 00-1278 . A defendant convicted of a second or subsequent OWI is subject to the penalty enhancements provided for in both sub. (2) and s. 939.62, if the application of each enhancer is based on a separate and distinct prior conviction or convictions. State v. Delaney, 2003 WI 9 , 259 Wis. 2d 77 , 658 N.W.2d 416 , 01-1051 . Nothing in sub. (2m) (a) prohibits chief judges from linking the aggravating and mitigating factors with an appropriate sentence within the broader range of sentences allowed under this section when adopting guidelines for their districts. A court may refer to the guidelines when sentencing under s. 346.63 (1) (a), but as the guidelines specifically only apply to s. 343.63 (1) (b) and (5), it is inappropriate for a court to apply the guidelines as the sole basis for its sentence in a s. 346.63 (1) (a) case. That the various judicial districts have different guidelines and defendants may receive different sentences based on where the crime was committed does not make guidelines adopted under sub. (2m) (a) unconstitutional. State v. Jorgensen, 2003 WI 105 , 264 Wis. 2d 157 , 667 N.W.2d 318 , 01-2690 . The proper time to determine the number of a defendant's prior OWI convictions for sentence enhancement purposes is at sentencing, regardless of whether some convictions may have occurred after a defendant committed the present offense. State v. Matke, 2005 WI App 4 , 278 Wis. 2d 403 , 692 N.W.2d 265 , 03-2278 . Although the defendant's Michigan and Wisconsin convictions stemmed from one continuous stint of driving, they arose from two separate incidents — one incident in Michigan and one incident in Wisconsin. Because the extraterritorial jurisdiction exceptions in Wisconsin and Michigan were not applicable to the defendant's separate convictions in Wisconsin and Michigan, each state had jurisdiction only over his act of driving while intoxicated within each state's own boundaries. State v. Holder, 2011 WI App 116 , 337 Wis. 2d 79 , 803 N.W.2d 82 , 09-2952 . 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 . A circuit court lacks competency but retains subject matter jurisdiction when the court enters a civil forfeiture judgment under a municipal ordinance for a first-offense OWI that factually should have been criminally charged as a second-offense OWI under sub. (2) due to an undiscovered prior countable conviction. Unlike defects in subject matter jurisdiction, challenges to circuit court competency may be forfeited. In this case, the defendant forfeited the right to challenge a 1992 first-offense OWI judgment by failing to timely raise the challenge. City of Eau Claire v. Booth, 2016 WI 65 , ___ Wis. 2d ___, 882 N.W.2d 738 , 15-0869 . When a person is charged under s. 346.63 (1) with a 2nd offense, the charge may not be reduced to a first offense and the court may not sentence under sub. (2) (a) 1. [now sub. (2) (a) 1m.]. The department of transportation must treat this as a 2nd offense for purposes of revocation. 69 Atty. Gen. 47. An uncounseled civil forfeiture conviction may provide the basis for criminal penalties for a subsequent offense. Schindler v. Clerk of Circuit Court, 715 F.2d 341 (1983). New Law's `Get Tough' Provisions Fall Short of the Mark. Pangman & Mutschler. Wis. Law. Feb. 1993. Targeting the Repeat Offender. Emerson & Maasen. Wis. Law. Feb. 1993. Wisconsin's New OWI Law. Mishlove & Stuckert. Wis. Law. June 2010.