Wisconsin Runs No Sobriety Checkpoints Because Suspicionless Stops Are Barred by Statute

The prohibition is drafted as a limit on the enforcement power itself. Section 349.02(1) gives police, sheriffs and traffic departments the duty to enforce chs. 346 to 348 and 350. Section 349.02(2)(a) then cuts across it: notwithstanding that duty, those officers "may not stop or inspect a vehicle solely to determine compliance with a statute or ordinance specified under par. (b) unless" the officer "has reasonable cause to believe that a violation of a statute or ordinance specified under par. (b) has been committed." The list in paragraph (b) is short and broad: ch. 349 and ordinances under it, ch. 961 and conforming local drug ordinances under §§ 961.573, 961.574 and 961.575, chapters 341 to 346, and local ordinances under § 59.54(25) or (25m) or § 66.0107(1)(bm). Chapter 346 is the rules-of-the-road chapter and it carries § 346.63, so an OWI compliance stop with nothing behind it is exactly what paragraph (a) forbids.

The negative can be proved from the code's own contents rather than from silence. A full-text search of the current Wisconsin Statutes for the word "checkpoint" returns a single provision, § 175.60(16)(a)8., which lists "[a] place beyond a security checkpoint in an airport" among the places a concealed carry licensee may not go. The word "roadblock" appears only in statute volumes from the 1950s and 1960s and in no section in force today. There is no chapter authorising a sobriety checkpoint programme, no statute setting the neutral criteria or advance publicity that checkpoint states require, and no appropriation line for one.

Paragraph (a) does carry two carve-outs, and both are narrow. First, it "does not limit the authority" of an officer "to make an arrest or issue a citation for a violation of any statute or ordinance specified under par. (b) observed in the course of a stop or inspection made for a lawful purpose." A driver lawfully stopped for a burned-out lamp can still be arrested for OWI on what the officer then observes. Second, paragraph (a) "does not apply to a traffic officer or motor vehicle inspector in the performance of duties under s. 110.075 (2)." That section requires the operator of a motor vehicle, when directed by any traffic officer or motor vehicle inspector, to stop and submit the vehicle to inspection of its brakes, lights, turn signals, steering, horns and warning devices, glass, mirrors, exhaust system, windshield wipers, tires and other equipment designated by the secretary of transportation. Section 110.075(3) provides that a sticker issued after a passing inspection exempts the vehicle from inspection for one year, and § 110.075(7) sets the penalty for other violations of the section at a forfeiture of not less than $10 nor more than $200. That equipment-inspection power is the only suspicionless vehicle stop Wisconsin preserves, and it is not a sobriety power.

Wisconsin stacks several other anti-pretext rules in the same neighbourhood. Section 349.02(2)(c) says an officer may not stop a vehicle solely because its colour differs from the colour stated in the registration application, though a citation for improper registration may still issue if the difference is noticed during a stop made for other purposes. Section 344.65(3) forbids a traffic officer from stopping or inspecting a vehicle solely to check compliance with the proof-of-insurance requirement in § 344.62, and forbids taking a person into physical custody solely for that violation. Section 349.02(3)(b) bars the state and local authorities from using photo radar speed detection to enforce §§ 346.57, 346.58, 346.59, 346.595 or 349.11. And § 349.025(2) provides that no state agency or political subdivision may require a law enforcement officer to issue a specific number of citations, complaints or warning notices in any period.

Once an officer does have reasonable cause, Wisconsin's OWI machinery is conventional and strict. Section 343.305(2) deems every person who drives on a Wisconsin public highway to have consented to tests of breath, blood or urine, and § 343.305(3)(a) lets the officer request one or more samples upon arrest for a violation of § 346.63(1), (2m) or (5), or for § 346.63(2) or (6), § 940.25, or § 940.09 where a vehicle was involved. The employing agency must be prepared to administer two of the three tests and may designate which goes first.

One consequence of Wisconsin's approach is worth stating plainly, because it is unlike almost every other state: a first OWI is not a crime here. Section 346.65(2)(am)1. sets the penalty for a first offence at a forfeiture of not less than $150 nor more than $300, a civil penalty. It becomes criminal on the second: § 346.65(2)(am)2. requires a fine of not less than $350 nor more than $1,100 and imprisonment of not less than 5 days nor more than 6 months where the prior countable convictions, suspensions and revocations under § 343.307(1) within a 10-year period bring the total to 2. A third brings a fine of $600 to $2,000 and 45 days to one year in the county jail under § 346.65(2)(am)3.

There is no ticket to contest at a checkpoint because Wisconsin holds none. 02(2)(a) and the resulting evidence is challenged by a suppression motion in the circuit court handling the citation or complaint. 02(2)(b) that is observed during a stop made for a lawful purpose, so the argument is about the reason the stop began, not about what came after. 305, not by the criminal penalty schedule. 65(2)(am)3.