State v. Richard Rusk, 2019AP135-CR, 8/29/19, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)
An officer stopped Rusk because he believed that tinting on the windshield of Rusk’s vehicles extended so far down as to violate Wis. Admin § Trans 305.34(6)(c)(May 2014). Rusk argued that this was a mistake of law because the rule was invalid and moved to suppress evidence of an OWI 3rd. He lost the circuit court, and loses again on appeal.
According to the court of appeals, Rusk argued that the administrative rule prohibiting tinting below the “A” line on a window is invalid because it is more restrictive than, or conflicts with, the introductory language of that subsection, which says “nothing may be placed so as to obstruct the driver’s clear vision through the windshield.” Opinion, ¶5. Rusk cited State v. Houghton, 2015 WI 79, 364 Wis. 2d 234, 868 N.W.2d 143.
The court of appeals affirmed for 3 reasons. First, §227.40(5) requires a person challenging the validity of an administrative rule to serve his pleading on the Joint Committee for Review of Administrative Rules, and Rusk didn’t do that. Opinion, ¶10.
[Note: the court of appeals appears to have this issue sua sponte.]
Second, Rusk failed to develop an argument explaining why the administrative rule on tinting (§305.34(6)), exceeded the DOT’s authority to promulgate rules under Chapter 347 governing the “equipment of vehicles.” In fact, Rusk assumed incorrectly that the tinting rule was promulgated under Chapter 346 governing “rules of the road,” which Houghton addressed. Opinion, ¶12.
Third, the court of appeals saw no conflict between with the tinting rule and the broadly-worded introductory clause. It reasoned: “subsection (6)(c) merely uses specific language to address when the application of window tinting does or does not ‘obstruct the driver’s clear vision through the windshield’ as is generally proscribed in the introductory language of subsection (6).” Opinion, ¶16.
