Oct. 5, 2009 – A license suspension under Illinois’ “zero tolerance” law does not count as a prior drunk driving conviction under Wisconsin law, the Wisconsin Court of Appeals held on Sept. 30.

In State v. Carter, 2008AP3144, the court of appeals identified key differences between the license suspensions under Illinois’ “zero tolerance” law and the criminal convictions that count toward enhanced sentencing for recurring intoxicated driving under Wis. Stat. § 346.65 (2).

The court’s decision follows its interpretation of a similar Missouri law in State v. Machgan, 2007 WI App 263.

Two prior out-of-state suspensions

Gerard Carter was initially charged with operating while intoxicated, second offense, and operating with a prohibited blood-alcohol concentration. But the state amended the charges to OWI, fourth offense, after it found Carter had two prior “zero tolerance” suspensions on his Illinois driving record.

Carter entered a guilty plea, but filed a motion prior to sentencing to challenge the inclusion of those Illinois incidents. The circuit court denied his motion and sentenced Carter as a four-time offender.

Not a ‘conviction’

In an opinion authored by Presiding Judge Lisa Neubauer, the court of appeals held that a “zero tolerance” suspension under Illinois law is not a “conviction” within the meaning of Wis. Stat. § 343.307 (1) (d).

“Under Illinois law, a ‘zero tolerance’ summary suspension may be imposed if a driver under age twenty-one has been arrested for any traffic violation, provided there is probable cause to believe the driver consumed some amount of alcohol and refuses testing or submits and the test reveals a blood-alcohol concentration greater than zero,” the court of appeals explained, citing Gumma v. White, 833 N.E. 2d 834 (Ill. 2005).

The Illinois Supreme Court analyzed its “zero tolerance” law in Arvia v. Madigan, 809 N.E. 2d 88 (Ill. 2004), the court of appeals noted. The Arvia court determined that a summary suspension under the “zero tolerance” law is not the same as a summary suspension authorized by driving under the influence (DUI) law. “The summary suspension provisions [under the DUI law] are intended to promptly remove impaired drivers from the road pending criminal prosecution,” the Illinois court wrote. “The summary suspension provisions [under ‘zero tolerance’] are not necessarily tied to removing impaired drivers from the road, since suspension may result from the consumption of even small amounts of alcohol.”

Further, a person arrested under the DUI law faces the prospect of criminal prosecution, but a young driver whose license is suspended under the “zero tolerance” law faces no other collateral consequences such as criminal charges, the Illinois court observed.

“Indeed, unlike the DUI law, the zero tolerance law prohibits evidence of the driver’s blood-alcohol concentration to be used in any other civil or criminal proceeding,” the Illinois court remarked.

A license suspension under the “zero tolerance” law is “purely administrative,” the Illinois court added. Seizing on this detail, the court of appeals drew a parallel to State v. Machgan, in which it had held a Missouri’s administrative suspension following an arrest for OWI was not a prior conviction for enhancement purposes in Wisconsin.

“Further, the Machgan court noted that Wisconsin law precludes in-state administrative suspensions from being counted as convictions under Wis. Stat. § 346.63 and, therefore, concluded that the circuit court properly declined to count and out-of-state administrative suspension as a conviction for enhancement purposes,” the court wrote.

Strictly read the record

The court of appeals refused to infer that Carter’s suspensions followed a refusal to submit to chemical testing, which would have put him within the types of suspensions listed in Wis. Stat. § 343.307 (1)(e) that count for enhancement purposes.

“The State asserts that the length of Carter’s Illinois suspensions were consistent with refusals as opposed to a test result obtained in excess of a prescribed amount and, based on that assertion, the State asks us to infer that Carter’s suspension was the result of a refusal. We cannot do so,” the court of appeals wrote.

Noting that the record only discloses a license suspension occurred, the court said no reason for the penalty is given. “The document simply does not provide sufficient information to conclude that the suspension was the result of a refusal, especially given that Carter disputes this assertion,” the court concluded.

Moreover, the court said that the length of suspension did not comport with the Illinois refusal penalties.