State v. Keith H. Shoeder, 2019 WI App 60; case activity (including briefs)
So if you’re going to drink and drive your riding mower, stay on your lawn.
Shoeder drove his riding mower on the paved shoulder of a city street, and was stopped and arrested for OWI in violation of § 346.63 after police were tipped off that Shoeder had an active warrant and was drinking in a tavern. (¶¶2-4). He moved to dismiss, arguing his riding mower is not a “motor vehicle” for purposes of § 346.63.
Sure, he acknowledges, a lawn mower meets the admittedly broad definition of “motor vehicle” under § 340.01(35) and (74)—any self-propelled device by which a person may be transported or drawn upon a highway. (¶¶10-11). But those statutes also say an “all-terrain vehicle” under § 340.01(2g) is generally not a motor vehicle, and, he claims, his lawn mower is really an ATV; thus, instead of being prosecuted under §§ 346.63 and 346.65, he should be prosecuted under the (comparatively more lenient) scheme that covers OWI with an ATV (§ 23.33(4c) and (13)(b)). (¶¶5-6, 8-9).
The court of appeals comes to a different conclusion:
¶12 …. Under Wis. Stat. §340.01(2g), an “all-terrain vehicle” is a “commercially designed and manufactured motor-driven device” with each of the following four attributes: (1) a weight, without fluids, of 900 pounds or less; (2) a width of 50 inches or less; (3) equipped with a seat designed to be straddled by the operator; and (4) travels on three or more low-pressure or nonpneumatic tires. ….
¶13 The riding lawn mower specifications the State submitted clearly show Shoeder’s model as having “step through” seating that “[e]nsures comfortable and easy mounting and dismounting.” Shoeder acknowledges that his lawn mower does not satisfy the requirement of having a straddle seat found in Wis. Stat. § 340.01(2g). Instead, his argument appears to be that we should disregard or somehow modify the straddle seat requirement in recognition of current all-terrain vehicle manufacturing practices. Shoeder argues that because certain manufacturers, like John Deere and Bombardier, now market all-terrain vehicle models with step through seating.., we should not view the type of seating as dispositive of whether a vehicle that otherwise satisfies the “all-terrain vehicle” definition qualifies as such a vehicle.
¶14 …Shoeder appears to make arguments regarding the purpose of the relevant statutory scheme vis-à-vis affected vehicles in encouraging us to dispense with the straddle seating requirement. He observes that there are some similarities between an all-terrain vehicle and a riding lawn mower, and, therefore, he asserts we should not treat a singular facet of a vehicle’s design as being dispositive. Moreover, Shoeder argues the legislature never “would have envisioned a riding lawn mower, designed to be operated for the single purpose of cutting grass[,] to be considered a motor vehicle for the transportation of individuals on a public roadway.” .…
¶15 Shoeder’s arguments ultimately fail for a simple reason. Our task as a court is not to rewrite or discard statutory language to keep pace with claimed commercial developments. Even when we are specifically mandated to give a statute a liberal construction (which is not the case here), we “cannot change the wording of a statute … to mean something that the legislature did not intend, or that the plain language of the statute will not support.” Progressive N. Ins. Co. v Romanshek, 2005 WI 67, ¶64, 281 Wis. 2d 300, 697 N.W.2d 417 [quoted source omitted]. ….
¶16 Regardless of whether commercial manufacturers have changed their designs and now market all-terrain vehicles with step through seating, we must defer to our legislature’s choice to define an “all-terrain vehicle” as having straddle seating, among other attributes. There is no inherent absurdity or unreasonableness in it having done so. We must give effect to the language of the statute, and if the meaning of that language is plain (as it is here), our inquiry ordinarily ends. ….
¶17 We also reject Shoeder’s various entreaties to what, in his view, is the statute’s purpose. Ultimately, there is no support for Shoeder’s assertion that the legislature could not (and would not) have envisioned a riding lawn mower as falling within the definition of a “motor vehicle.” To the contrary, that our legislature defined that term broadly suggests it did intend to bring a wide variety of vehicles within the purview of Wis. Stat. § 346.63(1), regardless of their “traditional” functions or usage. ….
