State v. Carter

• Decision Date: 02 December 2010
• Docket Number: No. 2008AP3144–CR.,2008AP3144–CR.
• Citation: 794 N.W.2d 213,2010 WI 132,330 Wis.2d 1
• Parties: STATE of Wisconsin, Plaintiff–Respondent–Petitioner,v.Gerard W. CARTER, Defendant–Appellant.
• Court: Wisconsin Supreme Court

330 Wis.2d 1

794 N.W.2d 213

2010 WI 132

STATE of Wisconsin, Plaintiff–Respondent–Petitioner,

v.Gerard W. CARTER, Defendant–Appellant.

No. 2008AP3144–CR.

Supreme Court of Wisconsin.

Argued Sept. 15, 2010.Decided Dec. 2, 2010.

For the plaintiff-respondent-petitioner there were briefs by Michael C. Sanders, assistant attorney general, and J.B. Van Hollen, attorney general, and oral argument by Michael C. Sanders.For the defendant-appellant there was a brief by Craig M. Kuhary and Walden, Schuster, & Vaklyes, S.C., Waukesha, and oral argument by Craig M. Kuhary.SHIRLEY S. ABRAHAMSON, Chief Justice.

[330 Wis.2d 4] ¶ 1 This is a review of a published decision of the court of appeals.¹ The court of appeals reversed the judgment imposed by the Circuit Court for Walworth County, Michael S. Gibbs, Judge.

¶ 2 The question of law before this court is whether Gerard Carter's two prior suspensions of his operating privilege under the Illinois “zero tolerance” law ² fall within Wis. Stat. § 343.307(1) (2007–08) ³ so that the Illinois suspensions are counted in sentencing Carter for his Wisconsin offense of Operating While Under the Influence (OWI) under Wis. Stat. § 346.65(2).

¶ 3 The Wisconsin legislature has established an accelerated penalty structure for OWI offenses in Wis. Stat. § 346.65(2). The severity of a defendant's penalty for OWI is based on the number of prior convictions under §§ 940.09(1) and 940.25 “plus the total number of suspensions, revocations, and other convictions counted under Wis. Stat. § 343.307(1).” ⁴ The present case requires us to interpret “suspensions, revocations, and other convictions” under Wis. Stat. § 343.307(1).

¶ 4 The circuit court determined that the suspensions of Carter's operating privilege in Illinois were either for refusal to submit to chemical testing or for submitting to chemical testing which disclosed an alcohol concentration greater than 0.00. In either event, according to the circuit court, Carter should be sentenced as a fourth offender under Wis. Stat. § 343.307(1)(d), counting his two prior suspensions under the Illinois “zero tolerance” law.

¶ 5 The court of appeals reversed the judgment of the circuit court, concluding that the two prior suspensions of Carter's operating privilege under the Illinois “zero tolerance” law do not fall within Wis. Stat. § 343.307(1) to be counted in determining his sentence.⁵ The court of appeals remanded the cause to the circuit court for sentencing based on OWI, second offense.

¶ 6 For the reasons set forth, we reverse the decision of the court of appeals and affirm the judgment of the circuit court. We conclude that the two prior suspensions of Carter's operating privilege under the Illinois “zero tolerance” law are convictions within the meaning of Wis. Stat. §§ 343.307(1)(d) and 340.01(9r), and that the circuit court appropriately counted them in sentencing Carter for his OWI violation.

I

¶ 7 For purposes of this review the relevant facts are not in dispute. Carter was arrested in Wisconsin on August 25, 2007, and charged with operating while under the influence of an intoxicant, second offense,⁶ and with a prohibited blood alcohol concentration. The State amended this charge to OWI, fourth offense, upon discovering that Carter had two prior suspensions of his Illinois operating license under the Illinois “zero tolerance” law.⁷

¶ 8 Carter entered a guilty plea to the OWI charge and filed a motion challenging, under Wis. Stat. § 343.307(1), the State's counting for sentence enhancement purposes his two prior Illinois suspensions. The circuit court denied the motion.

¶ 9 As background to resolve whether the two prior Illinois suspensions are counted under Wis. Stat. § 343.307(1) for penalty enhancement, we describe briefly Illinois' “zero tolerance” law and Wisconsin's “absolute sobriety” law.

¶ 10 Our description of the Illinois law comes from the Illinois Supreme Court's description of the law in Arvia v. Madigan, 209 Ill.2d 520, 283 Ill.Dec. 895, 809 N.E.2d 88 (2004), which resolved a challenge to the constitutionality of the law.

¶ 11 In Illinois, a driver under the age of 21 arrested for any violation of the Illinois Vehicle Code (or similar local ordinance) is deemed to have given consent to chemical tests to determine the alcohol content of the driver's blood if the police officer has probable cause to believe the driver has consumed any amount of an alcoholic beverage. The officer must warn the driver that refusal to submit to the test or submission to a test resulting in an alcohol concentration greater than 0.00 may result in a suspension of the driver's license; the suspension may range from three months to two years.

¶ 12 Upon refusal to submit to the test or upon a test resulting in an alcohol concentration greater than 0.00, the Illinois arresting officer must file a sworn report with the Illinois Secretary of State and notify the driver of the sanction. Upon receipt of the officer's sworn report, the Secretary of State enters the appropriate sanction on the driver's record and notifies the driver of the sanction and the effective date.

¶ 13 A driver can request an administrative hearing before the Illinois Secretary of State. The hearing is limited in scope and governed by the provisions applicable to administrative hearings before the Illinois Secretary of State. The Secretary of State may rescind, modify, or continue the sanction. The final decision of the Secretary of State is subject to judicial review.

¶ 14 In Illinois, a suspension may result from refusal to submit to chemical testing or the consumption of even small amounts of alcohol. In Illinois a young driver whose license is suspended under the zero tolerance law for refusal to submit to chemical testing or for a test resulting in a blood alcohol concentration greater than 0.00 but less than 0.08 ordinarily faces no other criminal prosecution.

¶ 15 Wisconsin has laws similar to those in Illinois governing “absolute sobriety” for persons who have not attained legal drinking age. First, if a person who has not attained legal drinking age improperly refuses to submit to a test for prohibited alcohol concentration, one penalty is revocation of the person's operating privilege. See Wis. Stat. §§ 346.63(2m), 343.305(10)(em).

¶ 16 Second, Wis. Stat. § 346.63(2m) makes it illegal for a person who has not attained legal drinking age to operate a motor vehicle with an alcohol concentration of more than 0.00 but less than 0.08. One penalty for this violation is suspension of the person's operating privilege under Wis. Stat. § 343.30(1p).

¶ 17 Under Wisconsin's accelerated OWI penalty structure, these two “absolute sobriety” statutes governing “underage” persons, namely improperly refusing to submit to a test for intoxication ⁸ and operating with a concentration of more than 0.00 but less than 0.08,⁹ are not counted for the purposes of Wisconsin's penalty enhancement. See Wis. Stat. § 343.307.

¶ 18 Accordingly, one way of viewing the issue before us is to ask whether Wis. Stat. § 343.307(1) treats a violation of the Illinois “zero tolerance” laws differently than the way it treats a violation of the Wisconsin “absolute sobriety” laws in counting offenses for purposes of sentencing.

II

¶ 19 We must interpret and apply Wis. Stat. § 343.307(1) to undisputed facts in the present case. Interpretation and application of a statute to undisputed facts are ordinarily questions of law that this court decides independently of the circuit court and court of appeals but benefiting from their analyses.¹⁰

III

¶ 20 Wisconsin Stat. § 343.307(1) instructs the circuit court to count convictions of certain offenses and specific suspensions or revocations of operating privileges for the purpose of the accelerated OWI penalty structure.

¶ 21 Wisconsin Stat. § 343.307(1) provides as follows:

343.307 Prior convictions, suspensions or revocations to be counted as offenses.

(1) The court shall count the following to determine the length of a revocation under s. 343.30(1q)(b) and to determine the penalty under ss. 114.09(2) and 346.65(2):

(a) Convictions for violations under s. 346.63(1), or a local ordinance in conformity with that section.

(b) Convictions for violations of a law of a federally recognized American Indian tribe or band in this state in conformity with s. 346.63(1).

(c) Convictions for violations under s. 346.63(2) or 940.25, or s. 940.09 where the offense involved the use of a vehicle.

(d) Convictions under the law of another jurisdiction that prohibits a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction's laws.

(e) Operating privilege suspensions or revocations under the law of another jurisdiction arising out of a refusal to submit to chemical testing.

(f) Revocations under s. 343.305(10).

(g) Convictions for violations under s. 114.09(1)(b) 1. or 1m.

¶ 22 Two subsections are relevant here: Wis. Stat. § 343.307(1)(e) and (1)(d).

¶ 23 We examine Wis. Stat. § 343.307(1)(e) first. This subsection provides that a circuit court shall count for purposes of sentencing, “operating privilege suspensions or revocations under the law of another jurisdiction arising out of a refusal to submit to chemical testing.” The plain language of the statute provides that if a suspension or revocation under the law of another state arises out of a refusal to submit to chemical testing, the out-of-state operating privilege suspension counts as a prior offense under § 343.307(1)(e) for penalty enhancement.

¶ 24 Section...