April 18, 2014 – A Walworth County man charged and convicted for a fifth offense Operating While Intoxicated (OWI) partially won and partially lost his appeal to keep prior dispositions from Illinois out of the equation for calculating enhanced penalties.

The state argued that Jackson had four prior OWI-related offenses, including two in Illinois. But Jackson argued that the Illinois offenses should not count.

Recently, in State v. Jackson, 2013AP1282-CR (April 9, 2013), a three-judge panel for the District II Appeals Court ruled that one, but not both, should count as priors.

Jackson was arrested for an OWI in Illinois in 1997 and received “statutory summary suspension” of his license before the underlying case was dismissed. He was also arrested for OWI in 2003, but he ultimately pled guilty to a charge of reckless driving.

Wis. Stat. section 343.307(1) requires Wisconsin courts to count prior out-of-state OWI-related “convictions” in determining penalties for repeat offenders.

The Wisconsin Supreme Court has determined that “conviction” means “an unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or an authorized administrative tribunal.”

1997 Summary Suspension: It Counts

Jackson said his 1997 violation shouldn’t count because he wasn’t really convicted; Illinois imposed a “statutory summary suspension” – an automatic license suspension – and the underlying OWI case was later dismissed by the state’s prosecutor.

According to the briefs, the Illinois Secretary of State automatically issues summary license suspensions after the arresting officer issues a sworn report, which indicates that the defendant did not submit to testing or tested above the legal limit for alcohol.

Jackson’s lawyer argued that this process “calls into question” whether such summary suspensions can be considered “convictions” for purposes of section 343.307(1).

The lawyer argued that it wasn’t a “conviction” because there was no adjudication of guilt or a determination that Jackson violated or failed to comply with the law in a court of original jurisdiction or an authorized administrative tribunal.

The appeals court panel was not convinced. It said people who incur automatic license suspensions in Illinois have an opportunity to challenge the disposition in court. It also found no distinction from a similar case involving Illinois’ zero tolerance law.

“As the state points out, the Carter court specifically noted that it is of no import that the person did not actually seek review of the Secretary of State’s apparently automatic initial suspension decision,” wrote Judge Mark Gundrum.

“The fact that the person has the opportunity for such review of the decision is sufficient to render it a determination by ‘an authorized administrative tribunal,’ i.e., a conviction.”

Jackson’s lawyer also argued that Wisconsin law, section 343.23(4)(a), requires the Wisconsin Department of Transportation to purge administrative suspensions imposed in Wisconsin from a person’s driving record “if the action has been dismissed.”

Jackson’s underlying OWI case in Illinois was dismissed, Jackson argued. But the appeals court noted that section 343.23(4)(a) only applies to dismissals in Wisconsin.

“[T]he legislature could have chosen to adopt language ensuring a similar policy applied to out-of-jurisdictions suspensions, yet it did not do so,” Judge Gundrum wrote. “We will not usurp the role of the legislature and adopt such a policy ourselves.”

2003 Reckless Driving Conviction: It Does Not Count

Although Jackson lost on the summary suspension issue, he won on the OWI charge that was reduced to a conviction for reckless driving in 2003. In other words, the court did not count this conviction for purposes of determining penalties for repeat offenders.

“[W]e cannot conclude that that the conduct prohibited by the reckless driving charge for which Jackson actually was convicted permits that conviction to qualify as a prior conviction under § 343.307(1)(d),” Judge Gundrum wrote.

Unlike the 1997 case, Jackson’s driving abstract from Illinois did not include a “statutory summary suspension” on the case resulting in the reckless driving conviction. If it had, it would have counted, according to the court’s analysis on summary suspensions.

The court noted that the legislature could choose to count, for penalty purposes, reckless driving convictions that stem from an initial OWI charge, but it has not done so.

Related Articles

OWI Offender Loses Equal Protection Appeal to Exclude Illinois Convictions – Wisbar News, March 12, 2014 (counting a “zero tolerance” violation from Illinois as a prior conviction for penalty purposes does not violate the equal protection clause, even though a similar conviction in Wisconsin does not count).

Appeals Court Upholds Ignition Interlock Order for First-Offense OWI – WisBar News, Jan. 29, 2014, (out-of-state OWI conviction more than 10 years old still counts when making interlock ignition determination).

Illinois Violators Get Enhanced Penalty under OWI Laws, Wisconsin Violators Don’t – WisBar News, Dec. 2, 2010, (Illinois “zero-tolerance” convictions count as “priors” in Wisconsin for purposes of penalty enhancements).