Walworth County v. Rohner

Citation108 Wis.2d 713,324 N.W.2d 682
Decision Date05 October 1982
Docket NumberNo. 81-240,81-240
PartiesCOUNTY OF WALWORTH, Plaintiff-Respondent, v. Paul L. ROHNER, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

Jerome Pogodzinski and Turner & Pogodzinski, S. C., Milwaukee, for defendant-appellant-petitioner.

Richard L. Voss, Asst. Dist. Atty., Elkhorn, for plaintiff-respondent.

Bronson C. La Follette, Atty. Gen. and Edward S. Marion, Asst. Atty. Gen., amicus curiae.

BEILFUSS, Chief Justice.

This is a review of an unpublished decision of the court of appeals, 105 Wis.2d 759, 317 N.W.2d 511, which affirmed the judgment of the circuit court for Walworth county, James L. Carlson, Judge, convicting the defendant-appellant of driving a motor vehicle while intoxicated (drunk driving).

On January 13, 1980, the defendant, Paul Rohner, was arrested by a Walworth county deputy sheriff after being involved in an automobile accident. The sheriff issued a citation charging the defendant with drunk driving in violation of a Walworth county ordinance adopting sec. 346.63(1), Stats. 1979-80. 1 The defendant had been previously convicted of the same offense on April 23, 1979.

The case came to trial on January 22, 1981, and the defendant moved to dismiss the charge on the grounds that he was improperly charged with a first offense violation. The defendant asserted that the court lacked subject-matter jurisdiction because he should have been charged with a second offense under state law. The district attorney then moved the court to allow filing of a criminal complaint charging the defendant with a second offense. The court told the district attorney that it would assess costs against the state for failing to file the complaint before trial. The district attorney then withdrew the motion.

The trial court ruled that it had jurisdiction to proceed under the ordinance violation. The court, relying on State v. Karpinski, 92 Wis.2d 599, 285 N.W.2d 729 (1979), reasoned that the district attorney had the prosecutorial discretion to charge under either the ordinance violation or the state statute. The defendant then plead guilty, reserving his right to appeal on jurisdictional grounds. The defendant was fined $284, including costs. The judgment of conviction was entered on January 28, 1981, and the finding of guilty and the three month revocation of operating privileges were stayed pending appeal. The court of appeals affirmed, also relying on Karpinski for the proposition that the prosecutor had discretion to commence the action under the county ordinance.

The principal issue raised is whether a second offense for drunk driving within a five-year period is exclusively within the province of the state for prosecution. On an examination of the state traffic regulations, we conclude that the state has exclusive jurisdiction over a second offense for drunk driving.

Sec. 346.63(1), Stats., prohibits driving while intoxicated. Sec. 346.65(2) establishes an escalating penalty scheme for violation of the drunk driving statute. 2 Under sec. 346.65(2)(a)1, a first offense is civil in nature and is punishable by forfeiture. But under sec. 346.65(2)(a)2 and 3, subsequent offenses within a five-year period are crimes punishable by fine and imprisonment. 3

The language used in sec. 346.65(2)(a), Stats., demonstrates that the legislature intended that a second offense for drunk driving be exclusively within the province of the state. The section uses the mandatory word "shall" in providing the escalating penalties for drunk driving. The use of the word "shall" in the statute has been construed by this court as requiring that criminal penalties be imposed for a second offense. In State v. Banks, 105 Wis.2d 32, 39, 313 N.W.2d 67 (1981), this court stated:

"Sec. 346.65, entitled 'Penalty for violating sections 346.62 to 346.64' requires that criminal penalties be imposed upon a second or subsequent conviction for OMVWI within a given five-year period. The language of the statute clearly demonstrates the legislature's intent that all the penalties for repeated offenses under sec. 346.65(2)(a)1, Stats., be mandatory rather than discretionary in the use of the word shall."

The court also recognized the mandatory nature of sec. 346.65(2)(a) in City of Lodi v. Hine, 107 Wis.2d 118, 122-23, 318 N.W.2d 383 (1982):

"... under present law the second and third offense of OMVWI must be brought under sec. 346.63(1) and sec. 346.65(2)(a) which makes it a crime to be convicted of OMVWI two or three times within a five- year period. Therefore, though the first OMVWI offense may be civilly charged, subsequent offenses must be charged as crimes pursuant to sec. 346.65(2)(a)." (Emphasis added.) 4

If the legislature had intended that the imposition of criminal penalties be discretionary it would have used permissive rather than mandatory language. 5 Thus as construed by this court in prior decisions, the legislature's intent in drafting sec. 346.65(2)(a), Stats., was to require criminal proceedings and penalties for a second drunk driving offense within a five-year period. Because in Wisconsin only the state has the power to enact and prosecute crimes 6 and criminal penalties are required, the trial court was without jurisdiction to try the defendant under the Walworth county ordinance.

Further evidence that the legislature intended that criminal penalties are required for second offense drunk driving, thus giving the state exclusive jurisdiction, is found in the legislative history of the statute which authorizes local government to enact traffic regulations. While the state has preempted the field of traffic regulation by enactment of the Vehicle Code, 7 chapters 340 through 350, it has chosen to share that power with local authorities. Sec. 349.06(1), Stats., 8 empowers local authorities to enact traffic regulations which are in strict conformity with the provisions of the Vehicle Code.

This statute as originally enacted in 1957, ch. 260, Laws of 1957, provided:

"Except for the suspension or revocation of motor vehicle operator's licenses, any local authority may enact and enforce any traffic regulation which is in strict conformity with chs. 341 to 348 but the penalty for violation of any of its provisions shall be limited to a forfeiture." (Emphasis added.)

Under this version of the statute local governments were allowed to enact any traffic regulation as long as it was in strict conformity with the state statute and the penalty was a forfeiture. This created an inequity in the system of traffic enforcement because the nature of the penalty depended on the fortuitous circumstances of whether the person was arrested by state or local officials. 9

But in 1971 the legislature deleted the phrase "but the penalty for violation ... shall be limited to a forfeiture" and added the phrase "for which the penalty thereof is a forfeiture." Ch. 278, sec. 66, Laws of 1971. The attorney general contends that the legislature intended by this change in the language to remove from local governments the power to regulate conduct which is criminal under state law.

We believe this interpretation persuasive based on the purposes behind the 1971 revision of the Vehicle Code and the state's policy of strict enforcement of laws designed to curb drunken driving.

Prior to 1971 all violations of state traffic regulations were crimes, while violation of conforming local regulation carried the civil penalty of a forfeiture. 10 The 1971 revision of the Code decriminalized many of the first offense traffic violations, including drunk driving, and provided a uniform statewide procedure governing prosecutions under both state statutes and conforming local regulations. The legislature sought to abolish the existing inequities in the system by providing for uniform enforcement of traffic regulations regardless of which authority was prosecuting the offense. As stated by this court in State v. Peterson, 104 Wis.2d 616, 621-22, 312 N.W.2d 784 (1981):

"Prior to 1971, whether the person arrested for a traffic violation was prosecuted for a criminal offense or was proceeded against in a civil action to recover a forfeiture depended on whether he was charged under the state law or under the local ordinance, which in turn depended, to a large extent, on the fortuitous circumstances of whether the person was arrested by a state traffic officer or by a local traffic enforcement officer. The 1971 amendments were designed to remedy this inequity by the creation of a uniform system of civil forfeiture and civil proceedings for most traffic violations whether the violation be of state traffic statutes or of local traffic ordinances. The legislative history of the 1971 amendments thus clearly demonstrates that the legislature intended to establish a system of 'basically civil' uniform traffic procedures supplemented by certain 'criminal protections' for the great majority of violations in the state motor vehicle code and for violations of local traffic ordinances."

The legislative goal of providing uniform traffic enforcement would be subverted if local governments were allowed to punish second offenders with first offense penalties. Thus, the revision in the language of sec. 349.06, Stats., clearly demonstrates that the legislature intended to remove from local jurisdiction traffic regulations that require criminal penalties.

This interpretation is in accord with the state's policy of strict enforcement of the drunk driving laws. In State v. Neitzel, 95 Wis.2d 191, 193-94, 289 N.W.2d 828 (1980), we recognized that the clear policy of sec. 346.63(1), Stats., is to facilitate the identification of drunken drivers and to remove them from the highways. In State v. Banks, 105 Wis.2d at 49, 313 N.W.2d 67, we noted that the same objectives are the underlying premise of the criminal penalties contained in sec. 346.65(2)(a). The court in Banks went on to state:

"It...

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