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- 2026 LEGISLATURE LRBs0473/1 CMH:wlj ASSEMBLY SUBSTITUTE AMENDMENT 2, TO ASSEMBLY BILL 856 February 18, 2026 - Offered by RepresentatPIRO.
- 2026 LEGISLATURE LRB-5907/1 ZDW:skw ASSEMBLY BILL 856 January 16, 2026 - Introduced by Representatives SPIRO, BORN , DITTRICH, G UNDRUM , K ITCHENS, M URPHY, M URSAU , O'CONNOR and P ENTERMAN , cosponsored by Senators J AMES , JAGLER and M ARKLEIN .
A N A CT to repeal 23.33 (4p) (a) 3., 23.335 (12) (f) 3., 30.684 (1) (c), 343.305 (3) (ar), 343.305 (3) (b) and 350.104 (1) (c);
Referred to Committee on Judiciary.
A N A CT to repeal 23.33 (4p) (a) 3., 30.684 (1) (c), 343.305 (3) (ar), 343.305 (3) (b) and 350.104 (1) (c);
b., 23.33 (4p) (c) 1., 23.33 (4p) (e) 3., 23.33 (13) (b) 2., 23.33 (13) (b) 3., 23.335 (12) (f) 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.
b., 23.335 (12) (h) 3., 23.335 (23) (c) 2., 23.335 (23) (c) 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.
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 - 2026 Legislature - 2 - LRB-5907/1 ZDW:skw ASSEMBLY BILL 856 SECTION 1 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, 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.
- 2026 Legislature - 2 - LRBs0473/1 CMH:wlj SECTION 1 S ECTION 1.
SECTION 1.
S ECTION 2.
- 2026 Legislature - 3 - LRB-5907/1 ZDW:skw ASSEMBLY BILL 856 SECTION 2 S ECTION 2.
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 - 2026 Legislature - 3 - LRBs0473/1 CMH:wlj SECTION 5 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.
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.
23.33 (13) (b) 3.
- 2026 Legislature - 4 - LRB-5907/1 ZDW:skw ASSEMBLY BILL 856 SECTION 6 23.33 (13) (b) 3.
S ECTION 6c.
23.335 (12) (f) 2.
b.
of the statutes is amended to read:
23.335 (12) (f) 2.
b.
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That a refusal to provide a sample or to submit to a chemical test constitutes a violation under par.
(h) and is subject to the same penalties and procedures as a violation of par.
(a) a forfeiture under sub.
(23) (c) 1.
S ECTION 6g.
23.335 (12) (f) 3.
of the statutes is repealed.
S ECTION 6n.
23.335 (12) (h) 3.
of the statutes is amended to read:
23.335 (12) (h) 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.
(f) 2.
or whether the request and information was unnecessary under par.
(f) 3.
S ECTION 6r.
23.335 (23) (c) 2.
of the statutes is amended to read:
23.335 (23) (c) 2.
Except as provided under subds.
3.
and 4., a person who violates sub.
(12) (a) 1., 2., or 2m.
or (h) and who, within 5 years prior to the arrest for the current violation, was convicted previously under the intoxicated operation - 2026 Legislature - 4 - LRBs0473/1 CMH:wlj S ECTION 6R of an off-highway motorcycle 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.
S ECTION 6w.
23.335 (23) (c) 3.
of the statutes is amended to read:
23.335 (23) (c) 3.
Except as provided in subd.
4., a person who violates sub.
(12) (a) 1., 2., or 2m.
or (h) 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 off-highway motorcycle 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.
- 2026 Legislature - 5 - LRBs0473/1 CMH:wlj S ECTION 10 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.
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 - 2026 Legislature - 5 - LRB-5907/1 ZDW:skw ASSEMBLY BILL 856 S ECTION 10 required under sub.
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 - 2026 Legislature - 6 - LRBs0473/1 CMH:wlj S ECTION 13 than $2,000 and shall be imprisoned for not less than 60 days nor more than one year in the county jail.
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.
30.80 (6) (a) 5.
- 2026 Legislature - 6 - LRB-5907/1 ZDW:skw ASSEMBLY BILL 856 S ECTION 14 30.80 (6) (a) 5.
- 2026 Legislature - 7 - LRBs0473/1 CMH:wlj S ECTION 16 S ECTION 16.
S ECTION 16.
343.305 (3) (a) Upon arrest of a person for violation of s.
- 2026 Legislature - 7 - LRB-5907/1 ZDW:skw ASSEMBLY BILL 856 S ECTION 17 343.305 (3) (a) Upon arrest of a person for violation of s.
This law enforcement agency now wants to test one or more samples of your - 2026 Legislature - 8 - LRBs0473/1 CMH:wlj S ECTION 20 breath, blood or urine to determine the concentration of alcohol or drugs in your system.
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 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.
If you refuse to take any test that this agency requests - 2026 Legislature - 8 - LRB-5907/1 ZDW:skw ASSEMBLY BILL 856 S ECTION 20 any requested test, your operating privilege will be revoked and you will be subject to other penalties.
(3) (a), or (am), or (ar), the person may request a breath test to be administered by the agency or, at his or her - 2026 Legislature - 9 - LRBs0473/1 CMH:wlj S ECTION 21 own expense, reasonable opportunity to have any qualified person administer any test specified under sub.
(3) (a), or (am), or (ar), the person may request a breath test to be administered by the agency or, at his or her own expense, reasonable opportunity to have any qualified person administer any test specified under sub.
If a person requests the agency to administer a breath test and if the agency is unable to perform that test, the person may request the agency to perform a test under sub.
- 2026 Legislature - 9 - LRB-5907/1 ZDW:skw ASSEMBLY BILL 856 S ECTION 21 If a person requests the agency to administer a breath test and if the agency is unable to perform that test, the person may request the agency to perform a test under sub.
and - 2026 Legislature - 10 - LRBs0473/1 CMH:wlj S ECTION 24 S ECTION 24.
and S ECTION 24.
If the individual seeks judicial review, he or she must file the request for judicial review with the court within 20 days of the issuance of the hearing examiner’s decision.
If the - 2026 Legislature - 10 - LRB-5907/1 ZDW:skw ASSEMBLY BILL 856 S ECTION 24 individual seeks judicial review, he or she must file the request for judicial review with the court within 20 days of the issuance of the hearing examiner’s decision.
That a refusal to provide a sample or to submit to a chemical - 2026 Legislature - 11 - LRBs0473/1 CMH:wlj S ECTION 27 test constitutes a violation under sub.
That a refusal to provide a sample or to submit to a chemical test constitutes a violation under sub.
350.104 (3) (a) Additional chemical test.
- 2026 Legislature - 11 - LRB-5907/1 ZDW:skw ASSEMBLY BILL 856 S ECTION 29 350.104 (3) (a) Additional chemical test.
- 2026 Legislature - 12 - LRBs0473/1 CMH:wlj S ECTION 32 350.11 (3) (a) 3.
350.11 (3) (a) 3.
350.101 (1) (a), (b), or (bm) or 350.104 (5) and who, within 5 years prior to the arrest for the current violation, was convicted 2 or more times previously under the intoxicated snowmobiling 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.
350.101 (1) (a), (b), or (bm) or 350.104 (5) and who, within 5 years prior to the arrest for the current violation, was convicted 2 or more times previously under the intoxicated snowmobiling law or - 2026 Legislature - 12 - LRB-5907/1 ZDW:skw ASSEMBLY BILL 856 S ECTION 32 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.
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