State v. Hirsch

Decision Date12 March 2014
Docket NumberNo. 2013AP427–CR.,2013AP427–CR.
Citation2014 WI App 39,847 N.W.2d 192,353 Wis.2d 453
PartiesSTATE of Wisconsin, Plaintiff–Respondent, v. Daniel M. HIRSCH, Defendant–Appellant.
CourtWisconsin Court of Appeals


On behalf of the defendant-appellant, the cause was submitted on the briefs of Andrew R. Walter of Walter Law Offices, Elkhorn.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Michael C. Sanders, assistant attorney general, and J.B. Van Hollen, attorney general.



¶ 1 Daniel M. Hirsch appeals from a judgment of conviction for operating while intoxicated (OWI), sixth offense, and an order denying postconviction relief. Hirsch argues that Wis. Stat. § 343.307(1)(d) (2011–12),1 which defines which out-of-state OWI-related convictions count as prior offenses for sentence enhancement purposes, violates the Equal Protection Clause of the United States Constitution because his out-of-state “zero tolerance” suspensions count whereas Wisconsin “absolute sobriety” violations would not. Hirsch also argues that the trial court erred in not applying issue preclusion to conclude that the two previous offenses should not count. We disagree with both arguments and affirm.


¶ 2 Hirsch has a history of alcohol-related traffic offenses including two license suspensions for violations of Illinois' zero tolerance law. In three subsequent Wisconsin OWI cases, Hirsch was able to keep one or both of these zero tolerance suspensions from counting as prior offenses for sentence enhancement purposes. According to Hirsch, and not disputed by the State, the State conceded in those cases that the prior zero tolerance suspensions did not count. In this 2010 OWI case, Hirsch sought to keep the zero tolerance suspensions from counting as prior OWI convictions, but the trial court rejected Hirsch's arguments.

¶ 3 Wisconsin has an accelerated penalty structure for OWI offenses such that each successive OWI conviction results in greater penalties. Wisconsin Stat. § 343.307(1) sets forth which convictions, suspensions, or revocations count as prior offenses in an OWI case for purposes of penalties under Wis. Stat. § 346.65(2). Hirsch challenges the constitutionality of para. (1)(d), which counts out-of-state convictions under a law that prohibits a person from using a motor vehicle with an excess or specified range of alcohol concentration, and by definition includes his Illinois zero tolerance violations as prior offenses.2

¶ 4 Wisconsin's absolute sobriety law, Wis. Stat. § 346.63(2m), prohibits a person who has not attained the legal drinking age from driving with an alcohol concentration of more than zero but not more than .08. The penalty for violation of the law is a forfeiture and suspension of the driver's license. Wis. Stat. §§ 346.65(2q) and 343.30(1p). Illinois' zero tolerance law prohibits a person who is less than twenty-one years of age from driving with an alcohol concentration of more than zero but not more than .08. 625 Ill. Comp. Stat.. 5/11–501.8 (2011). The penalty for violation of the law is suspension of the driver's license. Id. Under the broad definition set forth in Wis. Stat. § 343.307(1)(d), Illinois' zero tolerance law convictions count as prior offenses, while Wisconsin's absolute sobriety violations do not. State v. Carter, 2010 WI 132, ¶¶ 56, 59–64, 330 Wis.2d 1, 794 N.W.2d 213.

Equal Protection

¶ 5 Hirsch argues that Wis. Stat. § 343.307(1)(d) violates article I, section 1 of the Wisconsin Constitution and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by impermissibly treating similarly situated people differently. See Treiber v. Knoll, 135 Wis.2d 58, 68, 398 N.W.2d 756 (1987). Our review of the constitutionality of a statute is de novo. State v. Smith, 2010 WI 16, ¶ 8, 323 Wis.2d 377, 780 N.W.2d 90. The burden is on Hirsch to show, beyond a reasonable doubt, that the statute is unconstitutional. State ex rel. Hammermill Paper Co. v. LaPlante, 58 Wis.2d 32, 46, 205 N.W.2d 784 (1973).

¶ 6 Under the rational basis standard for equal protection analysis, which Hirsch concedes applies, the distinction made in the statute must be upheld if there is any rational basis to support it. Id. at 74, 205 N.W.2d 784. “The test is not whether some inequality results from the classification, but whether there exists any reasonable basis to justify the classification.” Id. (citation omitted). “Under this ‘rational basis' test, equal protection is violated only if the classification rests upon grounds wholly irrelevant to the achievement of the state's objective.” Konkel v. Acuity, 2009 WI App 132, ¶ 27, 321 Wis.2d 306, 775 N.W.2d 258 (quoting State v. Smet, 2005 WI App 263, ¶ 21, 288 Wis.2d 525, 709 N.W.2d 474). In an as-applied challenge to the statute, the question is whether the court “can conceive any facts upon which the legislation as applied to [Hirsch] could be reasonably based.” Smith, 323 Wis.2d 377, ¶ 16, 780 N.W.2d 90.

¶ 7 According to Hirsch, the statute fails the equal protection analysis. Relying on Harris v. Kelley, 70 Wis.2d 242, 252, 234 N.W.2d 628 (1975), 3 Hirsch argues that drivers with prior in-state absolute sobriety offenses and those with prior out-of-state zero tolerance offenses are not really different because both have engaged in the same conduct, and, given their similar characteristics, there is no justification for different treatment. He contends that distinguishing the two groups does not facilitate the identification and removal of drunk drivers from the roads, which is the purpose of the law. Hirsch argues that the statute classifies similarly situated drivers differently with no rational basis for the distinction.

¶ 8 The State responds that the statute does not classify people. “Instead,” argues the State, “the statute distinguishes between in-state and out-of-state convictions, regardless of who commits the offenses.” Furthermore, asserts the State, rational reasons exist to treat out-of-state offenses differently than in-state offenses. The Wisconsin legislature understands its own absolute sobriety law and how it interacts with other law, while the Wisconsin legislature has no authority over other jurisdictions' treatment of absolute sobriety or zero tolerance type offenses. Additionally, asserts the State, the legislative decision to count out-of-state violations of this type of law simplifies the counting process for Wisconsin trial courts.

¶ 9 We agree with the State that Wis. Stat. § 343.307(1)(d)'s statutory inclusion of out-of-state convictions under a law that prohibits driving “with an excess or specified range of alcohol concentration” does not violate the Equal Protection Clause, even if a consequence is to treat Illinois' zero tolerance offenses differently than Wisconsin absolute sobriety offenses. As our supreme court noted when recognizing the different sentencing outcome for these types of offenses, the legislature intended the scope of para. (d) to be broad. Carter, 330 Wis.2d 1, ¶ 39 & n. 14, 794 N.W.2d 213. In addition to counting out-of-state refusals to submit to chemical testing under § 343.307(1)(e), the legislature recreated para. (1)(d) in 1989 to remove the requirement that only violations of out-of-state statutes “in conformity” with Wisconsin law were to be counted for accelerated sentencing purposes. Carter, 330 Wis.2d 1, ¶ 39 & n. 14, 794 N.W.2d 213. These changes showed the legislature's intent to cast a broad net when counting out-of-state offenses. Id., ¶¶ 39–42. That the inclusion of a “broad array” of convictions, suspensions, and revocations under the laws of another jurisdiction resulted in inconsistency was a policy decision for the legislature. Id., ¶ 63.

¶ 10 There is a rational basis for the legislative determination to dispense with the required conformity with Wisconsin law. Our legislature has control over Wisconsin's absolute sobriety law, and it has defined the drinking age, the amount of alcohol that can be involved, and how the offenses are treated by courts and prosecutors. Our legislature has no such authority over out-of-state offenses. Our trial courts and bar are familiar with our absolute sobriety law, when it applies, how it is enforced, and how its penalties are administered. It was reasonable to eliminate the conformity requirement between Wisconsin offenses and the countless other variations of these types of offenses, when our legislature has no authority over how they are defined and applied by prosecutors and the courts, much less how other jurisdictions might redefine or apply such offenses over time. Ease of administration in Wisconsin courts provides a rational basis for a single, straightforward, and broad definition of out-of-state offenses applicable to all other jurisdictions. The definition consistently counts all convictions under out-of-state laws prohibiting driving with an excess or specified range of alcohol concentration regardless of their labels or treatment. And, counting all such convictions serves the public good because an exception could lead to undercounting offenses that are defined or applied differently.

¶ 11 The statute's classification of offenses is germane to the purpose of the law, which is “to encompass a broad array of convictions, suspensions, and revocations under the laws of another jurisdiction for counting purposes.” Id. A broad interpretation of Wis. Stat. § 343.307(1) comports with the purpose of drunk driving laws, State v. List, 2004 WI App 230, ¶ 11, 277 Wis.2d 836, 691 N.W.2d 366, which is to “facilitate the identification of drunken drivers and their removal from the highways,” State v. Neitzel, 95 Wis.2d 191, 193, 289 N.W.2d 828 (1980). Thus, out-of-state convictions can be counted for sentence enhancement purpose even if they result from violations of statutes that differ...

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