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Thread: Fine for 167.31 - Firearms in or on vehicles

  1. #1
    Regular Member grinner's Avatar
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    Fine for 167.31 - Firearms in or on vehicles

    I was curious what the consequences would be (hypothetically of course) for violating this statute, so I did some research.

    According to www.wicourts.gov/about/pubs/supreme/docs/bondsched10.pdf, the penalty for placing or possessing a firearm in or on a vehicle while loaded and/or uncased is the following:

    Loaded: $60 deposit plus fees is $268.10 total
    Uncased: $40 deposit plus fees is $217.90 total

    Total for both (loaded gun, uncased) would be $486.

    I'm posting this because the statute reads that the forfeiture would be no more than $100, but that's only the deposit amount. The fees, including a "weapons surcharge", make the actual amount much higher.

    167.31(5) WEAPONS SURCHARGE. (a) If a court imposes a fine or forfeiture for a violation of this section, the court shall also impose a weapons surcharge under ch. 814 equal to 75% of the amount of the fine or forfeiture.

    For more information on the fees, go here: http://www.dot.wisconsin.gov/statepa...ation-fees.htm

    I'm not going to offer any 4A or 5A advice, but talking to an officer or consenting to a search might contribute to getting this citation if (again, hypothetically) a person is in violation.

    Just posting this for the forum's general information. If anything, I'm discouraging violating this statute because the potential fees are much higher than one might assume.

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    The out of pocket cost of all forfietures is considerably higher than the penalty published in the statutes. Below are the actual "show me the money" costs applied in 2009 for most forfietures.

    http://www.wicourts.gov/about/filing/docs/fees.pdf

    http://dnr.wi.gov/org/es/enforcement...ndSchedule.pdf

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    Quite interesting when you view the tables in the links I previously posted (the costs shown in the first link are current as of July 1, 2010) is that statute 167.31(2)(b) contains two conditions, unloaded and encased. There are four possible combinations of those conditions: Unloaded and cased (no violation), loaded and cased (violation), loaded and uncased (violation), unloaded and uncased (violation). Apparently the courts can slice the pie as they wish concerning the various possibilities of infractions to 167.31(2)(b), as long as the total forfieture minus surcharges and costs doesn't exceed $100. Ironically the cost of a total forfieture of $100 is the lowest $338.50. A 60/40 split as listed by Grinner, under current pricing, would be $475.20, a $136.70 spread. Court costs and surcharges increase the initial statute allowed forfieture by 300 to more than 400 percent. And the courts don't even have to wear masks.

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    Lol, @ Captain. I guess you are right, no masks. However, if they did...

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    An intersting discussion came up on another forum concerning the carry of a firearm on an ATV. it appears that statute 23.33(3)(e) specifically applies to transport of a firearm on an ATV. It is subject to the restriction that the firearm be unloaded and encased(concealed). Some of the discussion as to how to avoid the concealed weapon statute entailed. General opinion was that the carry of a firearm on an ATV was a grey area because an ATV is designed specifically for off road use and does not fit with the state definition of a vehicle. Lots of dialog spent discussing the definition of a vehicle. However the discussion on whether or not an ATV is a vehicle is probably moot now. In my neck of the woods many roads have recently been designated as ATV routes. That means ATV's can be driven on those roads as long as "rules of the road" are complied to. So now that an ATV can be driven by local law on public roadways it now without question a vehicle as defined by the State. The burning question still remains. If an ATV is without question a vehicle and transport of firearms on it must comply with statute 167.31, How does onedo so without running afoul of statute 941.23. The answer can not be that because of the conflict of statutes a firearm may not be carried on an ATV in spite of 23.33(3)(e). The WSC ruled in Hamdan that the State must provide a manner by which Aticle I section 25 of the state constitution can be exercised. Any thoughts?

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    This is the definition of vehicle,
    Quote Originally Posted by Wisc. Stats.
    340.01 VEHICLES—DEFINITIONS
    (74) “Vehicle” means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except railroad trains. A snowmobile or electric personal assistive mobility device shall not be considered a vehicle except for purposes made specifically applicable by statute.
    The operative phrase is bolded. § 23.33(3)(e) seems to quite duplicate § 167.31(2)(b). That suggests that the author of one statute wasn't aware of the provisions of the other. A legal argument I-ANAL that appeals to me is "moot for vagueness".

  7. #7
    bhancock
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    Quote Originally Posted by Doug Huffman View Post
    This is the definition of vehicle,The operative phrase is bolded. § 23.33(3)(e) seems to quite duplicate § 167.31(2)(b). That suggests that the author of one statute wasn't aware of the provisions of the other. A legal argument I-ANAL that appeals to me is "moot for vagueness".
    So is it two separate provisions 'transported' and 'drawn upon a highway' or do the 'transported or drawn' go together as similar adverbs meaning that it has to be designed for highway use?

    Somewhere they make the exception of electric vehicles being used on property of a gun club and then there are the provisions of snowmobile and personal mobility device, suggesting that the author meant every vehicle on which a person could be transported or every vehicle that could be drawn upon the highway.
    Last edited by bhancock; 08-17-2010 at 02:12 PM. Reason: More info

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    Bike..vehicle or not?

    A bike may be considered a vehicle under a strict interpretation of the statute. But several published cases of people carrying on a bicycle (Racine guy who pulled his gun to stop muggers, another guy with a rifle in a sling), charging them with this vehicle violation was never discussed in the media (only a school zone violation).

    340.01(74)
    (74) "Vehicle" means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except railroad trains. A snowmobile or electric personal assistive mobility device shall not be considered a vehicle except for purposes made specifically applicable by statute.

    340.01(22)
    (22) "Highway" means all public ways and thoroughfares and bridges on the same. It includes the entire width between the boundary lines of every way open to the use of the public as a matter of right for the purposes of vehicular travel. It includes those roads or driveways in the state, county or municipal parks and in state forests which have been opened to the use of the public for the purpose of vehicular travel and roads or driveways upon the grounds of public schools, as defined in s. 115.01 (1), and institutions under the jurisdiction of the county board of supervisors, but does not include private roads or driveways as defined in sub. (46).

    Consensus?

  9. #9
    bhancock
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    I am going with highway being the qualifying term here. So transported or drawn will be similar terms describing movement of the device carrying the persons upon the highway. We still have a few of the hunting statutes that deal with carrying on ATV's but I would argue intent in those cases since they are primarily designed for hunting enforcement.

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    bhancock:
    If you review the history of 167.31 you will find that it was originally intended to be used as a game management tool by the DNR. Would you argue intent for a violation of 167.31 if you were not in a hunting circumstance?

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    Intent is an element of a crime. Chapter 167 is not among the chapters of statutes related to criminality.

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    Couple of interesting paragraphs from State v Fisher: Evidently intent does pay a role in all statutes in the eyes of the WSC. In paragraph 31 and 68 the WSC apparently feels the purpose of 167.31 is a public safety issue contrary to reality. The Court make special note of the value of legislative intent while considering the impact of Art I sec 25 in regards to existing statutes but totally ignores the fact that the legislative intent of 167.31 was wildlife management. God save us from the wisconsin supreme court. I wonder how paragraph 58 would hold up post McDonald.

    ¶31 The carrying of loaded weapons in a motor vehicle also
    presents an additional risk of accident. Cole, 264 Wis. 2d 520,
    ¶49. The court in Cole recognized this risk as a consideration
    when analyzing Cole's as-applied challenge to the
    constitutionality of the concealed carry statute in the vehicle
    context. Id. The legislature has recognized a similar safety
    concern by generally prohibiting the transport of any firearm in
    a vehicle unless it is unloaded and encased. Wis. Stat.
    § 167.31(2)(b).4

    ¶58 The court recognized in Cole that Article I, Section
    25 was not generally intended to abrogate existing statutes that
    regulate firearms. In analyzing the legislative intent behind
    the amendment, the court cited favorably to a Legislative
    Council Staff memorandum, which stated that "it is unlikely that
    any of the current laws regulating or restricting either the
    possession or carrying of firearms is in serious jeopardy of
    being invalidated as an infringement of the proposed
    constitutional right." Cole, 264 Wis. 2d 520, ¶36 (emphasis
    added). "Clearly," the court concluded, "the legislature knew
    gun control laws existed and this memo shows that they also had
    reason to believe the passage of Article I, Section 25 would not
    impact the status of those laws." Id.
    ¶59 The court explained that a Legislative Reference
    Bureau drafting memo also "supports the proposition that the
    legislature intended gun control legislation . . . to survive
    the new constitutional right to bear arms." Id., ¶37. The
    court held in Cole that "[t]he legislative history clearly
    suggests that the legislature did not intend to repeal
    reasonable gun laws such as the CCW statute."
    ¶60 In fact, it appears that the primary impetus behind
    the amendment was to invalidate or preempt local bans on handgun
    ownership or possession.
    ¶61 The court repeated in Hamdan what it recognized in
    Cole, holding that the state's "broad police power to regulate
    the ownership and use of firearms and other weapons continues,
    notwithstanding Article I, Section 25." Hamdan, 264
    Wis. 2d 433, ¶39; see also Jeffrey Monks, The End of Gun Control
    No. 2004AP2989-CR
    27
    or Protection Against Tyranny?: The Impact of the New Wisconsin
    Constitutional Right to Bear Arms on State Gun Control Laws,
    2001 Wis. L. Rev. 249, 293 (concluding that the general intent
    of the legislature was to preserve Wisconsin's existing firearms
    laws).
    ¶63 We note that constitutional challenges to § 941.23 as
    applied to individuals carrying a concealed weapon in a vehicle
    are also likely to implicate the constitutionality of § 167.31,
    the statute that generally prohibits the transport of any
    firearm in a vehicle unless it is unloaded and encased.
    Although Fisher was not cited for a violation of § 167.31 at the
    time of this arrest, it is plain under the facts of the case
    that he could have been. To the extent courts entertain
    constitutional challenges to § 941.23 for carrying a concealed
    weapon in a vehicle, the constitutionality of § 167.31 will
    often be implicated as well. Although the constitutionality of
    § 167.31 is not before us today, we make these observations
    because they underscore the breadth of Fisher's argument and its
    uneasy fit with the history of the constitutional amendment.
    ¶64 Both the legislature and this court have spoken:
    carrying a concealed and dangerous weapon in a vehicle will
    No. 2004AP2989-CR
    28
    generally be contrary to the state's interest in protecting the
    health, safety, and welfare of Wisconsin citizens, and § 941.23
    will not present a constitutional issue under Article I, Section
    25 except in extraordinary circumstances.

  13. #13
    bhancock
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    Quote Originally Posted by Captain Nemo View Post
    bhancock:
    If you review the history of 167.31 you will find that it was originally intended to be used as a game management tool by the DNR. Would you argue intent for a violation of 167.31 if you were not in a hunting circumstance?
    I would, I would argue intent even in a hunting situation for the carry of my handgun which doesn't meet barrel length requirements to hunt large game. In fact we see the DA considered both intent and the fact that the Right to Keep and Bear Arms amendment passed after 167.31 in the MKEgal case. The LaCrosse County DA has also referenced the WSC rulings on the situations existing for concealed carry being legal in some cases. The fact that he even said that suggests that the legal community is started to trend towards handgun carry being primarily for self defense and protected by the state as a right. The more this trend continues and is forced by us, the more likely the legislature will take up the debate and repeal 167.31 and 941.23 and a few others. The squeaky wheel gets the grease ya know. The legislature will act if the pressure is on from both sides, which it is building, and if the election goes well it could happen soon.

    Carry On and keep the pressure on.

    LaCrosse County DA;
    "Regarding concealed carry, Wisconsin has already addressed the idea that for self-defense in some situations you can conceal weapons, and I don't see anything in the McDonald or Heller decision changing that concept. In other words, you can carry a gun openly, other than in government buildings, schools, taverns, etc. You may be able to carry a concealed weapon for self defense, depending on the circumstances, and the county or city or state cannot keep you from owning weapons in your own home."
    Last edited by bhancock; 08-19-2010 at 06:02 PM. Reason: more info

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    bhancock:

    I'm on your side.

  15. #15
    bhancock
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    Quote Originally Posted by Captain Nemo View Post
    bhancock:

    I'm on your side.
    I figured that, I just like to make my thinking as clear as possible. I am also not advocating anyone break the law, but it is tough to follow the laws to a tee without a purposeful infraction from time to time. The wording of some of the statutes makes them impossible to follow, I don't mean that I don't want to, just plain impossible. And as we have seen, there is room for interpretation differences in following some of the laws as well as differences in enforcement from area to area regarding those interpretations. Carry to the limit of what the law will allow, push the envelope and force their hand as it were, in a courteous way of course. Carry On!

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