State v. Puchacz

Decision Date20 January 2010
Docket NumberNo. 2009AP840-CR.,2009AP840-CR.
Citation2010 WI App 30,780 N.W.2d 536
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Stanley W. PUCHACZ, Defendant-Appellant.
CourtWisconsin Court of Appeals

On behalf of the defendant-appellant, the cause was submitted on the brief of Michael M. Hayes of Hayes & Rothstein, S.C., Milwaukee.

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.

Before NEUBAUER, P.J., ANDERSON and SNYDER, JJ.

¶ 1 ANDERSON, J

Stanley W. Puchacz appeals from a judgment convicting him of operating a motor vehicle while under the influence of alcohol (OWI) and with a prohibited alcohol concentration (PAC), both as fifth offenses. Puchacz argues that the circuit court erred when it denied his motion to strike three of his four prior OWI offenses, all from Michigan, so they could not be used for sentence enhancement. We do not agree. Puchacz additionally argues that the circuit court erred in denying his motion to suppress all evidence obtained as a result of the traffic stop. Again, we do not agree. We affirm.

¶ 2 At the bail hearing, the court addressed Puchacz's motion to strike his prior Michigan offenses. In denying the motion, the court explained:

I've reviewed the motion to strike prior offenses, compared that, I read the State's position on it. I might also add that I've had occasion to read the Michigan statute on several occasions. . . . And I am truly convinced that the statute falls within the purview set by Wisconsin Supreme Court for counting it as similar offenses, and I'll deny the motion.

¶ 3 Thereafter, the court scheduled and held a hearing on Puchacz's motion to suppress. Officer Christopher Erickson of the Port Washington police department testified. Erickson stated that on June 23, 2007, at approximately 9:20 p.m., he was heading southbound on Wisconsin Street near Beutel Road in the city of Port Washington when he observed a red Pontiac with Michigan license plates operating in front of his squad. He continued to follow the vehicle approximately eight-tenths of a mile to Kane Street. In that time, he noticed the vehicle veer toward the center line, correct itself and then veer toward the parking lane and correct itself; it did this about three times. When it neared Kane Street, he noticed the vehicle cross over the center line. Based on these observations, Erickson stopped the vehicle.

¶ 4 At the time of the traffic stop, an eighteen-year-old high school intern, Blake Evenson, was riding along with Officer Erickson; he also testified at the hearing. He said that the vehicle driven by Puchacz "tended to swerve a little bit from side to side." He did not see Puchacz's vehicle strike the center line. From his observations, Puchacz's vehicle deviated about two feet, two to three times. On cross-examination, he said he did not remember if Puchacz's vehicle actually crossed the center line, "but it may have touched it. I'm not exactly sure. Because I wasn't paying attention to the middle line of the road." He said it appeared as though the vehicle was making sudden or abrupt corrections so as not to go into oncoming traffic. He further explained that

Officer Erickson asked me, did you see that too? And I said yes, I saw the swerving. He said, I think I'm going to pull him over. And I said, because of the swerving that just happened? He said yes. And then we pulled him over.

¶ 5 At the close of the hearing, the trial court denied the motion. The court stated, "Clearly there wasn't a lot of evidence in this case in terms of bad driving." The court further explained:

And I can only summarize it as thus. Mr. Evenson the intern, based on his training and experience, and what he said he saw would not have been justified in pulling that car over, but he's not the one that pulled it over. The person that pulled it over was the officer who saw what he saw and testified as to those facts. And yeah, in light of both, this is a close case, but I don't think that it rises to the level of a constitutional violation, and I do find that there was reasonable suspicion to pull the vehicle over, and that's the test. And I'll deny the motion.

¶ 6 Thereafter, Puchacz was convicted after a court trial at which the parties stipulated to the court's review of police reports, transcripts of motion hearings, hygiene lab reports, and Puchacz's Michigan driving record.1 Puchacz appeals, arguing that the circuit court erred in denying his motions.

¶ 7 We first address Puchacz's motion-to-strike argument. Puchacz argues that the trial court should have granted his motion to strike three of his Michigan convictions because they were under subsection (3) of MICHIGAN COMP. LAWS ANN. § 257.625 (West 2009). He argues that Michigan Comp. Laws Ann. § 257.625(3) is not in conformity with WIS. STAT. § 346.63(1)(a) or (b) (2007-08).2 MICHIGAN COMP. LAWS ANN. § 257.625 provides in pertinent part:

Offenses involving operation of vehicle while under influence of alcoholic liquor or controlled substance or visibly impaired due to consumption of alcoholic liquor or controlled substance. . . .
Sec. 625. (1) A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person is operating while intoxicated. As used in this section, "operating while intoxicated" means either of the following applies:
(a) The person is under the influence of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance.
(b) The person has an alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine. . . .
. . . .
(3) A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state when, due to the consumption of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance, the person's ability to operate the vehicle is visibly impaired. If a person is charged with violating subsection (1), a finding of guilty under this subsection may be rendered.

¶ 8 The State submits that a Michigan conviction under MICHIGAN COMP. LAWS ANN. § 257.625(3) is countable in Wisconsin under WIS. STAT. § 343.307(1). The State further asserts that there is no requirement that—to be counted as a prior offense in Wisconsin—an out-of-state conviction must be for violating a statute that is in "conformity" with Wisconsin law, other than as required in § 343.307(1)(d).

¶ 9 The issue of whether the Michigan convictions may be considered for sentencing purposes involves the interpretation and application of statutes to undisputed facts, which are questions of law that we review independently of the circuit court's determinations. See State v. White, 177 Wis.2d 121, 124, 501 N.W.2d 463 (Ct.App.1993).

¶ 10 Again, Puchacz challenges the circuit court's counting of three of his Michigan convictions on the grounds that since they were convictions under MICHIGAN COMP. LAWS ANN. § 257.625(3), the operating-while-visibly-impaired provision, they cannot be counted as prior convictions because Wisconsin has no comparable statutory provisions.

¶ 11 We do not agree. WISCONSIN STAT. § 343.307(1) sets forth the criteria used to determine whether prior conduct may be used to calculate a defendant's prior drunk driving convictions. Section 343.307(1)(d) includes as prior convictions:

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.

¶ 12 The final phrase of WIS. STAT. § 343.307(1)(d), "as those or substantially similar terms are used in that jurisdiction's laws," indicates the broad scope of para. (d). State v. List, 2004 WI App 230, ¶ 8, 277 Wis.2d 836, 691 N.W.2d 366. When determining a penalty, Wisconsin even counts prior offenses committed in states with OWI statutes that differ significantly from our own. Id. (citing White, 177 Wis.2d at 125, 501 N.W.2d 463, holding that though Minnesota's OWI statute required proof of elements not contained in Wisconsin's OWI statute, the statute did not preclude counting a Minnesota conviction when calculating the severity of the penalty). "Substantially similar" simply emphasizes that the out-of-state statute need only prohibit conduct similar to the list of prohibited conduct in § 343.307(1)(d). This understanding comports with the policy choice of our legislature. Counting offenses committed in other states effectuates the purposes of the drunk driving laws generally. List, 277 Wis.2d 836, ¶ 11, 691 N.W.2d 366; State v. Neitzel, 95 Wis.2d 191, 193, 289 N.W.2d 828 (1980) ("Because the clear policy of the statute is to facilitate the identification of drunken drivers and their removal from the highways, the statute must be construed to further the legislative purpose.").

¶ 13 Applying this broad interpretation and application of the final phrase in WIS. STAT. § 343.307(1)(d) and the public policy supporting our drunk driving laws, we conclude that Puchacz's Michigan convictions are countable under Wisconsin law. Michigan's drunk driving...

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    • December 2, 2015
    ...the officer would have had not just reasonable suspicion that a traffic law had been violated but probable cause as well. See State v. Puchacz, 2010 WI App 30, ¶ 16, 323 Wis.2d 741, 780 N.W.2d 536 (holding that when the officer observed the defendant cross over the center line, the officer ......
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    ...for sentence enhancement purpose even if they result from violations of statutes that differ significantly from our own. See State v. Puchacz, 2010 WI App 30, ¶¶ 12–13, 323 Wis.2d 741, 780 N.W.2d 536 (counting violations of Michigan's law that prohibits operating a vehicle while visibly imp......
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    ...instances where despite challenging their validity, Socha acknowledged that the convictions existed.¶ 20 In State v. Puchacz, 2010 WI App 30, 323 Wis.2d 741, 780 N.W.2d 536, we concluded that the final phrase of Wis. Stat. § 343.307(1)(d) “indicates the broad scope” of the counting statute.......
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