COA: trial court did not err in imposing lower OWI sentence under statutory treatment provision

State v. Eric Jean Overvig, 2019AP1786, 9/8/21, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Overvig was arrested for OWI-3rd and promptly put himself into intensive alcohol treatment. When it came time for sentencing, the trial court imposed probation with 20 days of conditional jail time. Ordinarily, under Wis. Stat. § 346.65(2)(am)3., the minimum for OWI-3rd would be 45 days, but there’s an exception in Wis. Stat. § 346.65(2)(cm) pertaining to certain probationers who undergo drug treatment: for them, the minimum is 15. The state appeals, arguing Overvig didn’t qualify for this exception, but the court of appeals holds that he did.

The operative language is this:

In any county that opts to offer a reduced minimum period of imprisonment for the successful completion of a probation period that includes alcohol and other drug treatment… the period of imprisonment shall be not less than 45 days, except that if the person successfully completes a period of probation that includes alcohol and other drug treatment, the period of imprisonment shall be not less than 14 days.

As the decision notes, the language at the beginning of the statute casts a wide net: a county need only opt to offer the reduced sentence for successful completion of a probation period that includes “alcohol and other drug treatment.” It doesn’t specify either a mode of treatment or a legal regimen for supplying or supervising that treatment. The state argues that the history of this provision shows it is intended to apply only to probationers in a formal “treatment court” or “probation treatment program.” (¶9). (Those who’ve been in the biz for a while may recall that the reduced-sentence-for-treatment law began life as a pilot program in 2006 in Winnebago County only, which county did (and still does) have a structured program.) The legislative history argument is thin on its own terms, but as the court of appeals observes, we don’t get to legislative history unless the statutory language is ambiguous, and here, it’s plain: all that’s required is a probation term including alcohol and other drug treatment. (¶¶12-13). And that’s just what the trial court imposed:

We cannot conclude that Overvig’s period of probation lacked “alcohol and other drug treatment.” The circuit court acknowledged Overvig’s previous treatment and recognized that Overvig’s current treatment involved attending AA meetings. The court instructed Overvig to “continue [his] treatment.” It also ordered Overvig to comply with any evaluations and treatment required by his probation agent—a person likely better situated to evaluate and address Overvig’s continuing rehabilitative needs. Finally, the court ordered that Overvig maintain absolute sobriety and that he not enter any establishment where the primary purpose is the sale of alcohol. Collectively, these orders and instructions provided Overvig with restraints, techniques and methods to facilitate his continued rehabilitation. The court therefore created a period of probation that included, as the legislature opted to broadly state, “alcohol and other drug treatment.”

(¶14).

Nor did the circuit court improperly exercise its discretion when it considered the fact that Overig had sought treatment on his own:

The State next argues that the circuit court improperly considered Overvig’s past treatment as a basis to apply WIS. STAT. § 346.65(2)(cm). Although the statute does not permit a court to rely solely on past treatment when applying subsec. (2)(cm)—because the period of probation itself must include “alcohol and other drug treatment”—we disagree that a court is wholly precluded from considering the fact of such treatment. A person’s treatment is not static—it changes over time. Overvig’s past treatment, and his success with that treatment, informed the court as to what treatment might be appropriate for Overvig in the future and his likely success. Because Overvig had successfully completed both intensive inpatient and outpatient treatment, the court could reasonably conclude that those treatments were not necessary or appropriate for Overvig while on probation. The court could also reasonably conclude that Overvig would receive appropriate alcohol treatment during his probation by attending AA meetings and completing the twelve-step program, completing an evaluation and complying with his probation agent’s treatment requirements, and abstaining from alcohol use.

(¶18).