Dec. 2, 2010 – Drivers with previous violations of the Illinois “no tolerance” law will face a harsher penalty for subsequent OWI violations in Wisconsin than ones with a previous violation of Wisconsin’s “absolute sobriety” law.

In other words, a person under the legal drinking age whose license is suspended for driving in Illinois with any blood alcohol concentration, or refusing a test, will have that suspension count in Wisconsin courts as a prior offense. But a license suspension for the same conduct, if busted while driving in Wisconsin, won’t count as a previous offense.

That is the Wisconsin Supreme Court’s recent holding in State v. Carter, 2010 WI 132 (Dec. 2, 2010), which reversed by a 5-1[i] majority the appeals court decision that held differently and overruled the Wisconsin appeals court case that held an out-of-state license suspension did not count as a conviction under Wis. Stat. section 343.307(1)(d).

Facts and law

In 2007, the state charged Gerard Carter on second offense operating while under the influence (OWI). But that charge was amended to a fourth offense OWI after the state learned Carter had two prior license suspensions under the Illinois “zero tolerance” law.

Carter pled guilty to the OWI charge, but challenged the sentence enhancement based on the two prior Illinois suspensions.

The circuit court for Walworth County ruled that Carter should be sentenced as a fourth offender. The appeals court reversed, holding that Carter’s prior Illinois suspensions did not count in determining his sentence.

The Illinois “zero tolerance” law provides that any driver under the age of 21 caught driving with a blood alcohol level (BAC) above .00 or who refuses testing is subject to license suspension after an administrative hearing before the Illinois Secretary of State.

Wisconsin’s “absolute sobriety” law is similar. Refusing to submit to sobriety testing may result in license revocation, and a license suspension may result for driving with a BAC above .00.

Wis. Stat. section 343.307(1) determines the types of prior convictions, suspensions or revocations that will be counted as prior offenses, and includes convictions, suspensions or revocations under the law of another jurisdiction for refusing chemical testing, and convictions for operating under the influence “with an excess or specified range of alcohol concentration.”

Under Wisconsin’s accelerated OWI penalty structure, prior violations of Wisconsin’s “absolute sobriety” laws do not count as prior offenses for purposes of future OWI violations.

The issue in Carter was whether a violation of Illinois’ “zero tolerance” law counts as a prior offense under section 343.307(1) despite its similarity to Wisconsin’s “absolute sobriety” law.

Analysis

Carter’s Illinois driving record did not indicate whether his Illinois “zero tolerance” violations stemmed from a refusal to be tested, or for driving with a BAC above .00. In any event, the Wisconsin Supreme Court held that Carter’s Illinois violations counted as prior offenses.

The court – in an opinion written by Chief Justice Shirley Abrahamson – examined what constitutes a “conviction” under section 343.307(1)(d).[ii] Carter argued that his administrative “suspension” is not the same as a “conviction” under that provision.

Carter relied on State v. Machgan, 2007 WI APP 263, 306 Wis. 2d 752, 743 N.W.2d 832,  a case in which a Wisconsin appeals court held that an out-of-state license “suspension” based on probable cause that defendant was operating under the influence was not a “conviction.”

Carter argued that section 343.307(1) determines what “suspensions” will be considered a prior offense, and only “suspensions” for test refusals count. Specifically, section 343.307(1)(e) counts as a prior offense “[o]perating privilege suspensions or revocations under the law of another jurisdiction arising out of a refusal to submit to chemical testing.”

Here, there is not sufficient evidence that Carter’s license was suspended for refusing a chemical test because the Illinois driving record did not make that indication, Carter argued.

However, the supreme court disagreed, and overruled Machgan.

Abrahamson explained that section 343.307(1)(e) was added subsequently “to address the fact that the circuit courts were not counting out-of-state refusals to submit to testing as convictions,” but the addition did not serve to limit “convictions” under section 343.307(1)(d).

The supreme court ruled that under 343.307(1)(d), “convictions” are violations of conduct that are prohibited under the law of another jurisdiction. Because Illinois prohibits persons from refusing chemical testing or operating in excess of a specified alcohol range, violating these codes of conduct triggers section 343.307(1)(d).

“The legislature has expressly chosen to exclude revocations under Wisconsin’s ‘absolute sobriety’ statutes from being counted in penalty enhancement, but has not made a similar exclusion for suspensions under out-of-state ‘zero tolerance’ statutes in section 343.307(1)(e),” Justice Abrahamson wrote. “[T]he court cannot usurp the role of the legislature and carve out an exception for suspensions under the Illinois ‘zero tolerance’ laws.”

Thus, the court reversed the appeals court, and Carter will be sentenced as a fourth offender under Wisconsin’s OWI penalty enhancement rules.

Dissent

Justice Ann Walsh Bradley was the lone dissenter, arguing that the legislature did not intend “to count a prior out-of state youthful zero tolerance violation the same as a prior out-of-state OWI offense for purposes of sentence enhancement.”

Attorneys

Assistant Attorney General Michael Sanders represented the state. Craig Kuhary of Walden, Schuster & Vaklyes S.C., Waukesha, represented Gerard Carter.