State v. Olson, 91-2306

• Citation: 498 N.W.2d 661,175 Wis.2d 628
• Decision Date: 07 January 1993
• Docket Number: No. 91-2306,91-2306
• Parties: STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Jeffrey A. OLSON, Defendant-Respondent. . Oral Argument
• Court: United States State Supreme Court of Wisconsin

Page 661

498 N.W.2d 661

175 Wis.2d 628

STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Jeffrey A. OLSON, Defendant-Respondent.

No. 91-2306.

Supreme Court of Wisconsin.

Oral Argument Jan. 7, 1993.

Opinion Decided May 5, 1993.

For the defendant-respondent there was a brief by Craig R. Day and Hoskins, Brown, Kalnins, McNamara & VanDeHey, Lancaster and oral argument by Mr. Day.

HEFFERNAN, Chief Justice.

This is a review of an unpublished decision of the court of appeals affirming a judgment of the circuit court for Grant County, John R. Wagner, Judge, that found Jeffrey Olson not guilty of operating a motor vehicle after revocation-first offense ("OAR-first offense") in violation of sec. 343.44(1), Stats., ¹ on the ground that the state did not offer evidence of the third element of prima facia OAR, namely that Olson knew or had cause to believe that his license had been revoked. To the contrary, the state argues that the element of scienter no longer applies to OAR prosecutions because the legislature's decriminalization of sec. 343.44, Stats., implicitly overruled State v. Collova, 79 Wis.2d 473, 255 N.W.2d 581 (1977), in which this court required scienter for OAR prosecutions.

The circuit court denied the state's motion for a special jury instruction omitting scienter as a required element of sec. 343.44(1), Stats. In denying the motion, Judge Wagner concluded that the holding in Collova continued in effect absent express legislative action to the contrary. On appeal, Judge Sundby (sitting alone) expressed concern with the result of Judge Wagner's decision but nonetheless concurred in the court's reasoning. We too agree with the reasoning and the decision of the circuit court and therefore affirm the decision of the court of appeals.

On July 8, 1991, Jeffrey Olson was cited for OAR-first offense, a civil offense under sec. 343.44(2), Stats. The charge resulted from a June 20, 1991, traffic stop in which the police officer who stopped Olson to check his vehicle's registration later discovered that Olson's license had been revoked because he had committed two six point driving violations in less than a year. ² Before trial, the state filed a motion in limine requesting an amended special jury instruction with respect to the elements required to prove a violation of sec. 343.44(1). In particular, the state sought to avoid having to prove Olson's knowledge of his revocation because the element of scienter, though required in Collova, was no longer appropriate after 1982 when OAR-first offense was reduced from a criminal to a civil offense. The standard jury instructions for OAR-first offense had, however, remained unchanged. The state maintained that knowledge should not be construed as an element of the revised OAR statute because the standard for proving criminal OAR should not be applied to a civil forfeiture.

The circuit court denied the state's motion and a jury trial was held on August 26, 1991. After producing uncontroverted evidence that Olson (1) had driven a motor vehicle on a Wisconsin highway on June 20, 1991, and (2) that his driver's license was revoked at the time, the state moved the court for a directed verdict. The court denied the motion because the state had not met its burden of proving Olson's knowledge of his revocation as required under jury instruction--Wis.J.I.--Criminal 2620A. ³ Although the state produced evidence that the notice of revocation had been mailed to Olson's permanent home address on April 24th, 1991, both Olson and his mother testified that he never received the notice. The court overruled the state's objection to the use of the standard jury instruction and proceeded to read to the jury several instructions, including Wis.J.I.--Criminal 2620A and Wis.J.I.--Criminal 2620B (1982) which was modified only to the extent of substituting the civil burden of proof. ⁴ Following deliberations, the jury returned a verdict of not guilty and the state moved unsuccessfully for a judgment notwithstanding the verdict.

The circuit court denied the state's motions on the basis of State v. Collova which required the state to prove the defendant's knowledge of revocation in OAR criminal prosecution. Although the OAR-first offense statute applied in Collova was decriminalized in 1982, Judge Wagner held that Collova had not been overruled and therefore controlled the outcome of the instant case. On appeal, Judge Sundby agreed with the circuit court's reasoning. While conceding the state's argument that the element of scienter might not be a necessary element of the revised civil OAR statute, Judge Sundby concluded that the legislature did not intend to change the required elements of OAR because it failed explicitly to supersede the Collova decision when it revised the OAR statute and in fact made no change whatsoever in the statute beyond revising the penalty.

The question before this court is whether the legislature intended sec. 343.44, Stats., as amended, to be a statute of strict liability. Statutory construction is a question of law that this court determines de novo. State v. Moore, 167 Wis.2d 491, 495-96, 481 N.W.2d 633 (1992); State v. Berndt, 161 Wis.2d 116, 121-22, 467 N.W.2d 205 (Ct.App.1991). The principal objective of statutory construction is to ascertain and give effect to the intent of the legislature. Green Bay Redevelopment Authority v. Bee Frank, Inc., 120 Wis.2d 402, 409, 355 N.W.2d 240 (1984) (citing Ball v. District No. 4, Area Board, 117 Wis.2d 529, 537-38, 345 N.W.2d 389 (1984)). In the instant case, construing sec. 343.44(1), requires this court to determine the sweep of the legislative intent in decriminalizing OAR-first offense in light of this court's Collova decision mandated four years earlier when OAR-first offense carried criminal penalties and we held scienter was required.

The state asserts that the legislative history, the statutory language and the prior case law surrounding sec. 343.44, Stats., all indicate a legislative intent to overturn the Collova decision requiring scienter when it decriminalized first offense OAR. While we disagree with the state's analysis of all three of these factors, we are particularly troubled by the state's misunderstanding of the rationale of State v. Collova. We therefore begin our discussion with an exposition of prior case law.

State v. Collova involved a defendant charged with OAR because he failed to maintain a current certificate of insurance with the Division of Motor Vehicles as required because of a prior revocation. Although the OAR statute was silent with regard to whether scienter was a necessary element of the crime, this court stated that in such situations it is the obligation of the court to determine the legislative intent from the nature of the particular statute involved. Collova, 79 Wis.2d at 480, 255 N.W.2d 581. ⁵ The court concluded that the nature of the OAR statute required that the state prove the element of scienter.

In reaching this conclusion, the Collova court distinguished between criminal statutes that are designed to penalize moral culpability and regulatory statutes that are designed to prevent widespread social injury. Collova, 79 Wis.2d at 482, 255 N.W.2d 581. ⁶ While the former involve personal stigmatization and therefore require a concomitant degree of judicial caution, the latter demand simple trials for efficient administration of regulations. As further evidence of the division between these classes of crimes, the Collova court reasoned that with most strict liability statutes:

[t]he persons to whom the regulations are directed are generally in a position to exercise such high degree of care; they will be encouraged to do so by the imposition of strict penal liability, and the penalties usually involved are such as to make the occasional punishment of one who has done everything that could have been done to avoid the violation a reasonable price to pay for the public benefit of the high standard of care that has been induced.

Collova, 79 Wis.2d at 485, 255 N.W.2d 581. Examples of common "regulatory criminal statutes" include: failure to have a license, failure to comply with regulations when trafficking in drugs or in firearms, food and drug regulations, traffic law violations, and consumer fraud protections. Collova, 79 Wis.2d at 484-85, 255 N.W.2d 581.

After identifying the defining indicia distinguishing punitive and regulatory criminal statutes, the Collova court went on to characterize the OAR statute as punitive in nature. In so holding, the court acknowledged that certain factors prove more or less dispositive depending on the nature of the particular statute. For example, the court might consider the regulatory nature of the statute, the degree of care that can be exercised by the defendant, or the severity of penalty attached to a violation. In the case of OAR, the court focused primarily on the severity of punishment attached to a violation of sec. 343.44(1), particularly on the mandatory jail sentence that accompanied a conviction. Collova, 79 Wis.2d at 485, 255 N.W.2d 581.

The state maintains that the holding in State v. Collova was predicated on the fact that initial violations of sec. 343.44(1) carried criminal penalties--mandatory jail sentences ranging from ten days to one year, and mandatory fines ranging from $100 to $400. The state quotes at length from the Collova opinion, focusing on the sections that highlight this court's concern with the severity of penalty:

We think the severe consequences attached to a violation of sec. 343.44, Stats., to be the dispositive factor here. An offense under the statute is a misdemeanor and, in terms of the severity of its penalties, a serious one.

....

To inflict substantial punishment on a person who is innocent of any intentional or negligent wrongdoing offends the sense of justice and is ineffective.

....

We believe that the legislature intended in sec. 343.44 to impose on drivers not strict...