Supreme Court of Wisconisn Decision Holds that License Suspensions
Stemming from Absolute Sobriety Convictions Only from Other States Can be Counted Just Like a Prior OWI/DWI/DUI Conviction.
Absolutely Bizzare.
Yes, State of Wisconsin v. Carter has been around since 2010, but it has only recently been changing the way
defendants in La Crosse County OWI or PAC cases are being charged. For this OWI defense attorney, counting
prior out-of-state suspensions or revocations for Absolute Sobriety violations, Absolute Sobriety convictions, or Implied Consent "convictions" the same way you would a prior drunk driving conviction is patently unfair.
However, some Wisconsin OWI prosecutors, including the current one in La Crosse County, are using Carter to do just that. Judges, ruling that their hands are tied by Carter, have little choice but to allow them to do so.
Wis. Stat. section 343.307 definitely allows Wisconsin OWI prosecutors to count prior Wisconsin OWI or PAC
convictions, as well as prior Implied Consent Refusals to test, as prior convictions to enhance new OWI/PAC charges to more serious levels, e.g., OWI/PAC 2nd, 3rd, 4th, etc. (The ability to count these "priors" has other limitations which are not covered in the scope of this article.) Currently, an OWI/PAC 4th is a felony if it is within 5 years of another. So this is serious stuff.
Section 343.307 does not allow Wisconsin prosecutors to count prior Implied Consent violations, prior Absolute Sobriety "convictions", and certainly not losses of license stemming from Absolute Sobriety convictions, as priors, if they occurred in Wisconsin. However, according to a majority in the Supreme Court of Wisconsin in Carter, suspensions from Absolute Sobriety convictions can be counted, if they originate from other states.
The Carter court overturned the Court of Appeals ruling which held that the Illinois suspension could not be counted as a prior conviction under 343.307. The court reached its conclusion by interpreting section 343.307 in a manner that determined that prior Illinois administrative suspensions for committing an Absolute Sobriety offense were prior "convictions".
The reasoning and interpretation of the majority is quite complicated, and you can read it yourself. Suffice it to say, I respectfully disagree. Justice Anne Walsh Bradley also disagreed, and her dissent is, in my opinion, far more compelling.
The main reason I disagree with the ruling is that these so-called "convictions", if they occurred in Wisconsin, could not even be counted under 343.307. It would be extremely odd , not to mention possibly unconstitutional, for the legislature to draft the statute so it treats out-of-state drivers, or drivers who moved to Wisconsin, more harshly than drivers from Wisconsin. Further, unlike actual convictions, the suspensions at issue in Carter were "administrative." These types of "convictions" can theoretically be proven only by only DMV driving records, even if court records relating to the underlying charge, here Absolute Sobriety, are non-existent. See State of Wisconsin v. Van Riper, 2003, WI App. 237. Finally, this ruling affects people with Absolute Sobriety suspensions. These people are or were, almost by definition, under 21 years of age at the time of the underlying event. They shouldn't have a .02 BAC driving event follow them potentially for the rest of their lives.
State v. Carter revolved around statutory interpretation. Therefore, unless the legislature changed the statute to avoid this result, or unless the Supreme Court of Wisconsin reverses the decision, it is the law. There is likely little chance of either occurring in the near future. There may be differences between state laws regarding such revocations or suspensions that would distinguish them from the holding in Carter. However, to date I have not had a judge agree. What can be done, if a judge will not strike these prior "conviction" on motion, is to take the OWI case to a jury trial to avoid the conviction altogether. If that does not work, or is not practical, then definitely argue for more lenient treatment at sentencing. A person with two prior suspensions or revocations for Absolute Sobriety should not be treated the same as someone with two actual prior drunk driving convictions.
Thanks for letting me vent.
defendants in La Crosse County OWI or PAC cases are being charged. For this OWI defense attorney, counting
prior out-of-state suspensions or revocations for Absolute Sobriety violations, Absolute Sobriety convictions, or Implied Consent "convictions" the same way you would a prior drunk driving conviction is patently unfair.
However, some Wisconsin OWI prosecutors, including the current one in La Crosse County, are using Carter to do just that. Judges, ruling that their hands are tied by Carter, have little choice but to allow them to do so.
Wis. Stat. section 343.307 definitely allows Wisconsin OWI prosecutors to count prior Wisconsin OWI or PAC
convictions, as well as prior Implied Consent Refusals to test, as prior convictions to enhance new OWI/PAC charges to more serious levels, e.g., OWI/PAC 2nd, 3rd, 4th, etc. (The ability to count these "priors" has other limitations which are not covered in the scope of this article.) Currently, an OWI/PAC 4th is a felony if it is within 5 years of another. So this is serious stuff.
Section 343.307 does not allow Wisconsin prosecutors to count prior Implied Consent violations, prior Absolute Sobriety "convictions", and certainly not losses of license stemming from Absolute Sobriety convictions, as priors, if they occurred in Wisconsin. However, according to a majority in the Supreme Court of Wisconsin in Carter, suspensions from Absolute Sobriety convictions can be counted, if they originate from other states.
The Carter court overturned the Court of Appeals ruling which held that the Illinois suspension could not be counted as a prior conviction under 343.307. The court reached its conclusion by interpreting section 343.307 in a manner that determined that prior Illinois administrative suspensions for committing an Absolute Sobriety offense were prior "convictions".
The reasoning and interpretation of the majority is quite complicated, and you can read it yourself. Suffice it to say, I respectfully disagree. Justice Anne Walsh Bradley also disagreed, and her dissent is, in my opinion, far more compelling.
The main reason I disagree with the ruling is that these so-called "convictions", if they occurred in Wisconsin, could not even be counted under 343.307. It would be extremely odd , not to mention possibly unconstitutional, for the legislature to draft the statute so it treats out-of-state drivers, or drivers who moved to Wisconsin, more harshly than drivers from Wisconsin. Further, unlike actual convictions, the suspensions at issue in Carter were "administrative." These types of "convictions" can theoretically be proven only by only DMV driving records, even if court records relating to the underlying charge, here Absolute Sobriety, are non-existent. See State of Wisconsin v. Van Riper, 2003, WI App. 237. Finally, this ruling affects people with Absolute Sobriety suspensions. These people are or were, almost by definition, under 21 years of age at the time of the underlying event. They shouldn't have a .02 BAC driving event follow them potentially for the rest of their lives.
State v. Carter revolved around statutory interpretation. Therefore, unless the legislature changed the statute to avoid this result, or unless the Supreme Court of Wisconsin reverses the decision, it is the law. There is likely little chance of either occurring in the near future. There may be differences between state laws regarding such revocations or suspensions that would distinguish them from the holding in Carter. However, to date I have not had a judge agree. What can be done, if a judge will not strike these prior "conviction" on motion, is to take the OWI case to a jury trial to avoid the conviction altogether. If that does not work, or is not practical, then definitely argue for more lenient treatment at sentencing. A person with two prior suspensions or revocations for Absolute Sobriety should not be treated the same as someone with two actual prior drunk driving convictions.
Thanks for letting me vent.
RSS Feed