State v. Mattson

Decision Date05 May 1987
Docket NumberNo. 86-1458-CR,86-1458-CR
Citation409 N.W.2d 138,140 Wis.2d 24
PartiesSTATE of Wisconsin, Plaintiff-Appellant, v. David F. MATTSON, Defendant-Respondent.
CourtWisconsin Court of Appeals

Christine Misurek, Hudson, for plaintiff-appellant.

Charles Bennett Vetzner, Asst. State Public Defender, Madison, and John A. Kucinski, Asst. State Public Defender, Hudson, for defendant-respondent.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

MYSE, Judge.

The state appeals an order dismissing a complaint charging David F. Mattson with second-offense drunken driving. The state argues that the trial court erred by concluding that a Minnesota drunken driving conviction could not be counted as a prior conviction under Wisconsin law for purposes of penalty enhancement. We conclude that the trial court properly determined that Minnesota's drunken driving statute is not in conformity with Wisconsin's statute and that, therefore, a conviction under Minnesota's law cannot be counted as a prior conviction for purposes of penalty enhancement under Wisconsin law. The order is affirmed.

The facts are undisputed. In June, 1985, David Mattson was convicted under Minnesota law for drunken driving. In February, 1986, Mattson was arrested in Wisconsin for operating a motor vehicle while under the influence of an intoxicant and with a blood alcohol concentration (BAC) of .10% or more, contrary to sec. 346.63(1)(a) and (b), Stats. 1 Pursuant to sec. 346.65(2)(b), Stats., the state relied on the prior Minnesota conviction for purposes of penalty enhancement and charged Mattson as a second offender. Section 346.65(2)(b) imposes increased penalties for a second conviction under sec. 346.63(1) within a five-year period. The statute also provides that "[i]f a person has a conviction for any offense under a local ordinance in or a state statute of another state which is in conformity with s. 346.63(1)(a) or (b) or both, that conviction shall count as a prior conviction...."

The sole issue before the trial court and on appeal is whether Minnesota's drunken driving statute, Minn.Stats., sec. 169.121(1) (1984), 2 is in "conformity" with its Wisconsin counterpart, sec. 346.63(1), for purposes of penalty enhancement under sec. 346.65(2)(b). In addressing this issue, we have been urged to adopt differing analyses. Mattson has asked this court to employ a "strict conformity" approach, as has been used to determine whether a local ordinance is contrary to or inconsistent with a state statute. See City of Janesville v. Walker, 50 Wis.2d 35, 37, 183 N.W.2d 158, 159 (1971); secs. 349.03(1) and 349.06(1), Stats. The attorney general asserts that the proper analysis is a substantive elements approach that focuses on the specific factual circumstances and the type of misconduct underlying the prior conviction. 3 See Op.Att'y Gen., slip. op. (Sept. 11, 1986). We decline to adopt either of these analyses. The trial court concluded that Minnesota's statute was not in conformity with that of Wisconsin because the elements underlying the two statutes are substantively different. We agree with the court's analysis and its conclusion.

When the facts are undisputed, the question presented on appeal is one of law. See State v. Williams, 104 Wis.2d 15, 21-22, 310 N.W.2d 601, 605 (1981). Moreover, the interpretation of a statute and its application to a particular set of facts are questions of law. Glover v. Marine Bank, 117 Wis.2d 684, 691, 345 N.W.2d 449, 452 (1984). We review questions of law without deference to the trial court's decision. Id.

The definition of "conformity" contained in sec. 343.307, Stats., must govern our answer to the question in this case. If a word is specifically defined by statute, its meaning as defined by that statute must be given effect. Sullivan Bros., Inc. v. State Bank, 107 Wis.2d 641, 645, 321 N.W.2d 545, 547 (Ct.App.1982). Section 343.307, Stats., defines conformity:

If the same elements of the offense must be proved under a local ordinance or state statute of another state as under s. 346.63(1)(a) or (b) or both, the local ordinance or state statute of the other state shall be considered to be in conformity with s. 346.63(1)(a) or (b) or both for purposes ... [of s.] 346.65(2)(b)....

Minnesota's drunken driving statute is in conformity with that of Wisconsin only if the elements to be proved under Minnesota's statute are the same as under the Wisconsin statute. By the language of sec. 343.307, we must examine Minnesota's statute in its entirety, rather than focusing on only those portions that conform to the Wisconsin statute.

The state argues that even under this analysis, Minnesota's drunken driving statute is in conformity with its Wisconsin counterpart because the elements underlying the two are substantively similar. We disagree because Minnesota's statute prohibits not only the same conduct prohibited under Wisconsin's statute, but also encompasses prohibitions not reflected in Wisconsin's statute.

Minnesota has made it a crime to drive, operate, or be in "physical control" of a motor vehicle while under the influence of an intoxicant. Several Minnesota cases have held that an intoxicated person's presence in a motor vehicle without the motor running or the key in the ignition is sufficient to meet the physical control requirement. State v. Maletich, 384 N.W.2d 586, 588 (Minn.Ct.App.1986); Martin v. Comm'r of Public Safety, 358 N.W.2d 734, 737 (Minn.Ct.App.1984). Under Wisconsin's statute, it is not an offense to simply be in physical control of a motor vehicle while under the influence. See County of Milwaukee v. Proegler, 95 Wis.2d 614, 625, 291 N.W.2d 608, 613 (Ct.App.1980); sec. 346.63(3), Stats.

In addition, Minnesota's definition of a "motor vehicle" includes snowmobiles, whereas Wisconsin's definition does not. Minn.Stats., sec. 169.01(3) (1984); sec. 340.01(35), Stats. Wisconsin has consistently refused to include drunken snowmobiling as an offense under its drunken driving statute. See sec. 346.02(10), Stats. In Wisconsin, the intoxicated operation of a snowmobile is governed by a separate provision, sec. 350.08, Stats. Minnesota, however, because its definition of motor vehicle encompasses a snowmobile, considers drunken snowmobiling an offense under its drunken driving statute. Melby v. Comm'r of Public Safety, 367 N.W.2d 527, 529 (Minn.1985).

Wisconsin and Minnesota also treat the operation of a motor vehicle on private property differently. Wisconsin's law prohibits the intoxicated operation of a motor vehicle on public roadways and "all premises held out to the public for use of their motor vehicles, whether such premises are publicly or privately owned...." On the other hand, Minnesota's drunken driving law applies to all private property. Schafer v. Comm'r of Public Safety, 348 N.W.2d 365, 367 (Minn.Ct.App.1984).

Another substantive difference is that Minnesota has chosen to make it a crime to have a BAC of .10% or more within two hours after driving. In Wisconsin, a BAC of .10% or more is prohibited when driving or operating without regard to BAC levels at a later time.

The elements of Minnesota's drunken driving statute, sec. 169.121(1), are significantly different from those of its Wisconsin counterpart, sec. 346.63(1). These differences are substantive in nature, are not merely technical or procedural, and reflect different philosophies. Minnesota has chosen to prohibit conduct not...

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