State v. Shawn N. Hill, 2013AP2549-CR, District 2, 5/7/14 (1-judge; ineligible for publication); case activity
A vehicle registered by the State as a “utility terrain vehicle” under § 23.33(1)(ng) is not a “motor vehicle” under § 340.01(35). Thus, a defendant alleged to have operated the vehicle while intoxicated should have been charged under § 23.33(4c), not § 346.63.
Hill was charged with OWI, 3rd offense, under §§ 346.63 and 346.65(2)(am)3. after he was stopped while operating his State-registered UTV on a public roadway. He claimed he was charged under the wrong statute because he was operating a UTV, not a motor vehicle. The statute governing UTVs has its own provisions governing drunk-driving, §§ 23.33(4c) and (13)(b), and §§ 346.63 and 346.65 are not made applicable to UTVs under § 346.02(11). The trial court rejected Hill’s claim, agreeing with the prosecutor that Hill’s vehicle was not really a UTV because it is steered with levers, tank-style, not a steering wheel, as required under the UTV definition, § 23.33(1)(ng)1.
The court of appeals reverses. It was the State (in the guise of the DNR) that considered Hill’s vehicle to be a UTV and therefore registered it as a UTV under § 23.33(2), and yet the State now argues it shouldn’t be bound by its registration of the vehicle as a UTV because the plain language of § 23.33(1)(ng)1. requires the steering mechanism to be shaped like a wheel. Saying it “do[es] not give credence to absurd arguments” (¶7), the court holds “[t]he State cannot apply a statutory definition one way so as to collect a registration fee and then turn around and interpret the same definition another way so as to increase the applicable penalties for a law violation.” (¶8).
¶9 By registering Hill’s vehicle as a UTV, the State placed Hill on notice that he was bound to the laws applicable to UTVs. We assume the State, through its agents at the Department of Natural Resources, considered the requirements of Wis. Stat. § 23.33(1)(ng)1. before registering Hill’s vehicle. If the State did not believe that Hill’s vehicle was a UTV under § 23.33(1)(ng)—and therefore that it should not be exempt from Wis. Stat. § 346.63(1)(a) and (b)—then the State should not have registered Hill’s vehicle as a UTV under § 23.33(1)(ng).
Nor should local law enforcement officers’ interpretation of “steering wheel” under § 23.33(1)(ng)1. trump the decision of the DNR, which is, after all, responsible for enforcing the statute:
¶11 We discern no reason why the registration of a vehicle that meets all of the requirements for a UTV under Wis. Stat. § 23.33(1)(ng)1. except that it is steered by levers rather than a wheel would contravene the purpose of the legislature and its statutes. On the other hand, we can see a very real reason why permitting local law enforcement officers to override the Department of Natural Resources’ registration of a vehicle as a UTV would defeat the purpose of the UTV registration statute.
The statute Hill is charged under matters because, as the court notes (¶6), “[i]ntoxicated drivers of UTVs are subject to similar penalties as intoxicated drivers of motor vehicles, with an exception that only prior convictions for intoxicated operation of UTVs may be counted as penalty enhancers for the intoxicated operation of a UTV.” And note it doesn’t matter that Hill was stopped on a public roadway. UTVs are forbidden from operating on or near public roadways under most circumstances, § 23.33(4), and violating that prohibition subjects the driver to a penalty, § 23.33(13)(a). “Thus, a UTV is not made a motor vehicle simply by its operation on a public roadway.” (¶6).
