346.04 Obedience to traffic officers, signs and signals; fleeing from officer.
(1) No person including a personal delivery device operator shall fail or refuse to comply with any lawful order, signal, or direction of a traffic officer.
(2) No operator of a vehicle shall disobey the instructions of any official traffic sign or signal unless otherwise directed by a traffic officer.
(2t) No operator of a vehicle, after having received a visible or audible signal to stop his or her vehicle from a traffic officer, federal law enforcement officer, or marked or unmarked police vehicle that the operator knows or reasonably should know is being operated by a law enforcement officer, shall knowingly resist the officer by failing to stop his or her vehicle as promptly as safety reasonably permits.
(3) No operator of a vehicle, after having received a visual or audible signal from a traffic officer, federal law enforcement officer, or marked or unmarked police vehicle that the operator knows or reasonably should know is being operated by a law enforcement officer, shall knowingly flee or attempt to elude any officer by willful or wanton disregard of such signal so as to interfere with or endanger the operation of the police vehicle, the traffic officer, the law enforcement officer, other vehicles, or pedestrians, nor shall the operator increase the speed of the operator's vehicle or extinguish the lights of the vehicle in an attempt to elude or flee.
(4) Subsection (2t) is not an included offense of sub. (3), but a person may not be convicted of violating both subs. (2t) and (3) for acts arising out of the same incident or occurrence.
History: 1991 a. 316; 2001 a. 109; 2017 a. 13, 347.
That an officer was driving a vehicle equipped with red lights and siren was insufficient to prove that vehicle was “marked" under sub. (3). State v. Oppermann, 156 Wis. 2d 241, 456 N.W.2d 625 (Ct. App. 1990).
The knowledge requirement in sub. (3) applies only to fleeing or attempting to elude an officer. The statute does not require the operator of a fleeing vehicle to actually interfere with or endanger identifiable vehicles or persons; he or she need only drive in a manner that creates a risk or likelihood of that occurring. State v. Sterzinger, 2002 WI App 171, 256 Wis. 2d 925, 649 N.W.2d 677, 01-1440.
In sub. (3), “willful" modifies “disregard." In that context, “willful" requires a subjective understanding by the defendant that a person known by the defendant to be a traffic officer has directed the defendant to take a particular action, and with that understanding, the defendant chose to act in contravention of the officer's direction. Either willful or wanton disregard is sufficient to result in a statutory violation. An act done “willfully" does not require a showing of personal hate or ill will. Sub. (3) does not provide a good faith exception to compliance. State v. Hanson, 2012 WI 4, 338 Wis. 2d 243, 808 N.W.2d 390, 08-2759.
Under both the statute and the pattern jury instructions, there are 3 methods by which the statutory requirements under sub. (3) for knowingly fleeing or attempting to elude a traffic officer, can be satisfied: 1) by increasing the speed of the vehicle; 2) by extinguishing the lights of the vehicle, or 3) by willful or wanton disregard of the signal so as to interfere with or endanger the officer, vehicles, or pedestrians. State v. Beamon, 2013 WI 47, 347 Wis. 2d 559, 830 N.W.2d 681, 10-2003.
An unmarked police vehicle displaying red and blue lights is not a marked vehicle for purposes of sub. (2). Section 346.19, regarding the requirements on the approach of an emergency vehicle, is the proper statute to invoke when the proof requirements for fleeing under this section are not met. 76 Atty. Gen. 214.