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General repeater statute applies to drunken drivers


“The words ‘felony’ and ‘misdemeanor’ are only utilized in the discussion of prior convictions, not present convictions. Wis. Stat. sec. 939.62(3). By contrast, the legislature referred to ‘any crime’ in defining the present conviction under sec. 939.62(1).”

Justice N. Patrick Crooks
Wisconsin Supreme Court

A sentence for multiple-offense drunken driving can be enhanced by both the drunken driving enhancers and the general repeater statute, sec. 939.62, the Wisconsin Supreme Court held on March 4.

On Nov. 19, 1999, Richard W. Delaney was arrested for drunken driving in connection with a hit-and-run incident. At the time, Delaney had one prior drunken driving conviction, and one suspension for refusing to submit to a chemical test, making this incident a third-offense OWI.

Delaney also had a felony conviction in 1996, making him a repeater under the general repeater statute, sec. 939.62.

The State charged Delaney with eight counts in total, and among them was a third-offense OWI count, as a repeater, pursuant to sec. 939.62. Delaney moved to dismiss the general repeater provision, but the motion was denied.

He ultimately pleaded guilty to two counts of causing injury by motor vehicle while under the influence of an intoxicant, both as a repeater, and third-offense OWI, as a repeater, also.

Kenosha County Circuit Court Judge S. Michael Wilk withheld sentence on the OWI, placing him on six years probation. On one of the causing injury counts, the court stayed a 14-month prison sentence, and imposed six years probation, concurrent to the probation on the OWI count.

On the other causing injury count, the court imposed three years in prison. The court also specifically noted that, if probation were revoked, Delaney could receive up to three years imprisonment on the OWI charge, given the application of sec. 939.62.

Delaney appealed, but the court of appeals affirmed in an unpublished decision. The Supreme Court granted review, but also affirmed in a decision by Justice N. Patrick Crooks. Chief Justice Shirley S. Abrahamson dissented, in an opinion joined by Justice Ann Walsh Bradley.

The Statutes

The court concluded that the plain language of sec. 939.62 does not exclude OWI offenses from the scope of crimes to which the penalty enhancer applies.
Section 939.62(1) provides, in relevant part:

“If the actor is a repeater, … and the present conviction is for any crime for which imprisonment may be imposed, except for an escape … or a failure to report …, the maximum term of imprisonment prescribed by law for that crime may be increased as follows: (a) A maximum term of one year or less may be increased to not more than 3 years.

Subsections (1)(b) and (1)(c) provide for different enhancements, depending on whether the prior convictions are for a felony or for misdemeanors.
Section 939.62(3) provides:

“In this section, ‘felony’ and ‘misdemeanor’ have the following meanings: (a) In case of crimes committed in this state, the terms do not include motor vehicle offenses under chs. 341 to 349 and offenses handled through proceedings in the court assigned to exercise jurisdiction under chs. 48 and 938, but otherwise have meanings designated in s. 939.60.”

The court found that, under the plain language of subsec. (1), any sentence may be enhanced unless it is for escape or failure to report.

While drunken driving convictions may not be used as prior convictions to determine that a defendant is a repeater, there is no bar under the statute to applying the repeater statute to a drunken driving conviction.

The court reasoned, “Wis. Stat. sec. 939.12 defines a crime as “conduct which is prohibited by state law and punishable by fine or imprisonment or both.” Under sec. 346.65(2)(c), a third offense OWI constitutes a crime, as the defendant is subject to a fine and a minimum jail sentence. Thus, we conclude that the plain language of sec. 939.12 provides that motor vehicle offenses, for which a sentence of fine or imprisonment or both may be imposed, are ‘crimes’ subject to sec. 939.62.”

Legislative Intent

What the court held

Case: State v. Richard W. Delaney, No. 01-1051-CR. Crooks, J. Filed March 4, 2003.

Issue: Can a repeat drunken driving offense be enhanced by both the specific enhancers for repeat drunken drivers, and the general repeater provisions of sec. 939.62?

Holding: Yes. Section 939.62 unambiguously provides that, although drunken driving can not be used to establish a defendant’s status as a repeater, a drunken driving conviction is subject to enhancement.

Counsel: Joseph R. Cincotta, Milwaukee, for the petitioner; David J. Becker, Madison for the respondent.

The court rejected Delaney’s argument that the legislature’s intent was to create separate punishment mechanisms for general crimes and OWI offenses.

The court concluded, “The words ‘felony’ and ‘misdemeanor’ are only utilized in the discussion of prior convictions, not present convictions. Wis. Stat. sec. 939.62(3). By contrast, the legislature referred to ‘any crime’ in defining the present conviction under sec. 939.62(1). The legislature specifically provided two exemptions to the phrase ‘any crime’; escape under sec. 946.42 and failure to report under sec. 946.425. Under the well-established canon of expressio unius est exclusio alterius (the expression of one thing excludes another), where the legislature specifically enumerates certain exceptions to a statute, we conclude, based on that rule, that the legislature intended to exclude any other exception (emphasis in original)(citation omitted.).”

The court stated that, had the legislature intended the construction urged by Delaney, it would have used the terms “felony” and “misdemeanor” in subsec. (1), rather than “any crime,” or added a specific motor vehicle offense exception to the subsection.

Accordingly, the court held that the statute unambiguously permits enhancement of multiple-offense drunken driving with the general repeater statute. Because the statute is unambiguous, the court refused to consider legislative history.

Case Law

The court distinguished two cases cited by Delaney in support of his argument that the general repeater statute does not apply: State v. Wideman, 206 Wis.2d 91, 556 N.W.2d 737 (1996); and State v. Ray, 166 Wis.2d 855, 481 N.W.2d 288 (Ct.App.1992).

In Wideman, the Supreme Court held that, because the legislature intended the repeat drunken driving provisions under sec. 346.65 to operate differently from other repeater statutes, the proof requirements necessary for sec. 939.62 do not apply to multiple-offense drunken driving.

Nothing in Wideman, however, overcomes the unambiguous language in sec. 939.62, the court concluded.

In Ray, the court of appeals held that a controlled substance offense could not be enhanced by both sec. 939.62, and the specific repeater provisions for drug offenses.

The court distinguished Ray, also, however, stating, “The factual situation in Ray is not the same as here. Unlike the situation in Ray, where the State attempted to use one prior conviction to support two penalty enhancers, here the Wis. Stat. sec. 346.65 enhancer was based on Delaney’s prior OWI conviction and refusal to submit to a chemical test. The sec. 939.62 enhancer was based on Delaney’s attempted possession of THC conviction; therefore, the decision in Ray is inapplicable here.”

The court also noted that two other jurisdictions, Kentucky and Iowa, both permit double enhancement of penalties where each enhancer is based on separate priors.

In a footnote, the court rejected Delaney’s argument that, under the rule of statutory construction that a more specific provision governs a more general one, and therefore only the drunken driving enhancers apply. The court stated, “that rule only applies where the legislative intent cannot be discerned for the pertinent provisions and the two provisions irreconcilably conflict.”

Because the two enhancers don’t conflict with each other, the court determined the rule was inapplicable, and affirmed.

The Dissent

Justice Abrahamson dissented, stating, “Rules of statutory interpretation are designed to help courts discern the intent of the legislature, not to serve as blinders. In this case, the majority opinion uses the plain language rule to shield its eyes from the legislative intent to exclude mo
tor vehicle offenses from consideration both as a predicate offense and a present offense under the habitual offender statute.”


Wisconsin Supreme Court

Related Article

Case Analysis

Abrahamson noted several absurdities with the majority opinion. First, she stated, “the majority asserts that under sec. 939.62, the word ‘crime’ means all felonies and misdemeanors, but that the terms ‘felony’ and ‘misdemeanor’ mean only those crimes that are not motor vehicle offenses.”

Second, the dissent noted that, under the majority opinion, a person convicted of numerous drunken drivings who then commits a drug offense cannot be sentenced as a repeater because the priors were all for motor vehicle violations.

However, a felony drug offender who then commits a multiple-offense drunken driving can be sentenced as a repeater. Abrahamson stated, “The more reasonable construction is to read Wis. Stat. sec. 939.62 (1999- 2000) as excluding motor vehicle offenses from the entirety of the statute. In this way, all persons convicted of the same types of crimes receive the same enhanced punishment; the timing of the convictions is irrelevant.”

Finally, the dissent examined the legislative history. Under the provisions prior to 1955, motor vehicle offenses and fish-and-game violations were entirely excluded from the operation of the general repeater statute. The 1955 legislative committee notes stated that the only intent in amending the statute was to classify fish-and-game offenses as “crimes,” leaving only motor vehicle offenses excluded from that definition.

Abrahamson wrote, “The implication is that the status of motor vehicle offenses was to remain the same as it was in the 1949 version — excluded from the operation of the statute.”

Click here for Case Analysis.

David Ziemer can be reached by email.

One comment

  1. I was arrested for 3/m DUI and in court it was turned into a repeater. My second DUI was in 2006. I also have a conviction in my pass. I did 5 years in TDCJ. From 2007 to 2012.

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