OWI – § 346.65(2), Second or Subsequent Offense: Out-of-State Administrative Non-Refusal (“Zero Tolerance”) Suspension

State v. Gerard W. Carter, 2010 WI 132, reversing 2009 WI App 156; for Carter: Craig M. Kuhary; State BiC; Carter Resp.; Reply

Prior DL suspension under Illinois’ “zero tolerance” law (which suspends or revokes operating privileges of drivers under legal drinking age with any alcohol concentration) satisfies § 343.307(1)(d) and therefore supports OWI enhancement, § 346.65(2). Court of appeals holding to the contrary in this case overruled, as is prior holding in State v. Daniel J. Machgan, 2007 WI App 263, that an out-of-state administrative suspension which is not the result of a refusal isn’t counted as a “conviction” for purposes of OWI enhancement, ¶43.

The statutory scheme, the majority observes, “is not easy to read and is not a model of clarity,” ¶29. If anything, an understatement. Little attempt will be made here to burden the reader with the clumsiness of the wording. Key point to take away is that the court discerns legislative intent to assign “broad” coverage to OWI enhancement regime: “the legislature has promulgated language in Wis. Stat. § 343.307(1)(d) and (e) to encompass a broad array of convictions, suspensions, and revocations under the laws of another jurisdiction for counting purposes,” ¶63.

The Illinois “zero tolerance” law in question penalizes, through administrative determination, the presence of alcohol in any amount in an under-aged driver. Wisconsin, by contrast, does not count violations of our “absolute sobriety” law as enhancement priors, ¶¶17, 50. Any resultant inequity merely raises a policy decision for legislative resolution, ¶¶63-64.

The single-vote dissent convincingly shows that the majority’s conclusion goes against the legislative history, namely legislative intent to address offenses related to lower-range BAC for commercial carriers. Indeed, the majority pays scant attention to the critical statutory text itself, after construing it to read: “convictions under the law of another jurisdiction that prohibits a person from using a motor vehicle with an excess or specified range of alcohol concentration,” ¶30. A most unusual phrasing, as applied to “zero tolerance.” In other words, it is awkward, to say the least, to describe any quantity above zero as an “excess” or a “specified range.” Awkward fit or not, it is now binding.

One other point discussed by the court is worthy of note, its rejection of § 343.307(1)(e) as an alternative basis for enhancement. That provision allows enhancement for suspensions due to refusal to submit to testing in a foreign jurisdiction, but the State must sufficiently prove that was the basis for suspension. Because Carter’s Illinois driving record didn’t state whether his suspensions were due to refusal, the State failed to satisfy its burden of proof as to a subsection (1)(e) basis for enhancement, ¶¶25-27, upholding the court of appeals on this point.

The court now appears committed to a quite broad application of OWI penalty enhancement. Yet, that object in the rearview mirror – Apprendi v. New Jersey, 530 U.S. 466 (2000) – may be closer than it appears, despite efforts to pull away, State v. Louis H. LaCount, 2008 WI 59; State v. Brandon J. Matke, 2005 WI App 4. Apprendi says you can’t enhance a sentence beyond the statutory maximum unless the matter supporting the enhancement is subject to resolution by a jury same as an element, but acknowledges an exception to its holding, namely for prior-conviction enhancers. And so the just-cited Wisconsin cases reserve to the judge authority to determine existence of the prior (s), of course not by proof beyond reasonable doubt. The argument, then, is futile; why raise it? Because it is quite possible the last word hasn’t been spoken. More particularly, you will want to keep an eye on the pending cert petition in Welch v. U.S., 10-314, which raises the following question about the limits, under Apprendi, of the prior-conviction exception:

Is a criminal defendant’s constitutional right to a jury trial violated when a prior nonjury juvenile adjudication is used to increase his term of imprisonment beyond the otherwise applicable statutory maximum?

(See also, amicus brief in support of petition, filed by the Juvenile Law Center.)

At its heart, the question in Welch implicates Wisconsin’s OWI-enhancement reliance on a prior administrative determination. If the Court grants cert in Welch, then the viability of Carter will be up for grabs.