June 3, 2010 – An operating while intoxicated (OWI) conviction in one case does not allow retroactive application of that conviction to the prohibited alcohol concentration (PAC) level for repeat OWI offenders, the appeals court held in State v. Sowatzke, AP1990-CR (May 26, 2010).

Wis. Stat. section 346.63(1)(b) prohibits the act of operating or driving with a blood alcohol concentration (BAC) above the legal BAC limit, in most cases .08. Under section 340.01(46m), however, the legal limit is .02 for a person with three or more prior OWI convictions, suspensions, or revocations.

In March of 2008, Brian Sowatzke was arrested and cited for a third OWI offense (March offense). On May 9, 2008, while the March offense was still pending, Sowatzke was again cited for a third offense OWI (May 9 offense). His BAC was .048. Four days later, on May 13, Sowatzke was again arrested and cited for a third offense OWI (May 13 offense).

In July of 2008, Sowatzke was convicted on the May 13 offense (his third conviction), which triggered the .02 BAC threshold for any future offense under section 346.63(1)(b).

But the next day, the state applied the conviction retroactively. That is, it amended the complaint for the May 9 offense to charge Sowatzke as a three-time offender based on the conviction, thereby triggering the .02 threshold. This allowed the state to charge Sowatzke for fourth offense OWI and PAC even though his BAC was .048.

Sowatzke moved to dismiss, arguing that as of the date of the May 9 arrest, he was not subject to the .02 threshold as a three-time offender because he had not been convicted of a third offense yet. In other words, his BAC of .048 was not a PAC.

The circuit court found that the amended complaint “retroactively changed one of the elements [of the PAC charge] in an ex post facto manner,” and therefore dismissed the case.

On appeal, the state argued that such retroactive application did not violate Sowatzke’s due process rights or his right to be free from ex post facto prosecution because at the time of the May 9 offense, he had notice of the possible penalties associated with the violation.

The appeals court affirmed the circuit court, concluding that “a crime of operating a motor vehicle with a prohibited alcohol concentration … requires [that] a person had the PAC at the time he or she drove or operated the motor vehicle.”

In this case, the court found, Sowatzke only had two OWI “convictions, suspensions or revocations” at the time he was arrested on May 9 with a BAC of .048. Thus, at the time of his May 9 arrest, he was subject to the .08 BAC limit, not the lowered PAC threshold of .02.