Repeater Case Analysis

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Both the majority opinion and dissent in this case miss the mark by failing to notice that sec. 939.62 is ambiguous.

The majority concluded the statute is unambiguous, and therefore, wisely declined to even consider legislative history — any attempt to reconcile its holding with that legislative history would have unavoidably required a great deal of dissembling.

The dissent, meanwhile, although seeming to acknowledge that the statute is unambiguous, nevertheless relies on a little legislative history and a lot of common sense to reach a just result, notwithstanding the statutory language.

(The dissent also misses the mark in its argument about the order in which the offenses occur. Identical offenses frequently result in different total exposure based on the order in which they occur, even if no drunken drivings are involved — a defendant convicted of a felony, and then a misdemeanor, is subject to more total time than one convicted of a misdemeanor, and then a felony.)

However, an ambiguity can be found in the statute — specifically, the definition of the word, “crime,” — which would then permit legislative history and other rules of statutory construction to be considered, and reach a just result without usurping the role of the legislature.

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 …, but otherwise have meanings designated in sec. 939.60.”

In turn, section 939.60 provides, “A crime punishable by imprisonment in the Wisconsin state prisons is a felony. Every other crime is a misdemeanor.”

Thus, under sec. 939.60 — expressly referenced by sec. 939.62 —if an action constitutes a “crime,” it must be either a “felony” or a “misdemeanor,” but not both.

Third-offense drunken driving is obviously not a felony. Neither, however, is it technically a misdemeanor.

There are nine classes of felonies in Wisconsin, and three classes of misdemeanors, but third-offense drunken driving falls in none of these classes.

Therefore, it is not a “crime” under the statutes, and there was no reason for the legislature to expressly exempt it from the definition of “crime” in sec. 939.62(1), as it did for escape and failure to report.

By contrast, sec. 346.63(2)(e) provides in relevant part, “Any person violating sec. 346.63(1): … is guilty of a Class H felony and shall be fined not less than $600 and imprisoned for not less than 6 months if the number of convictions … equals 5 or more…” (A Class H felony carries a maximum penalty of six years in prison and a fine of $10,000).

The legislature obviously knows how to classify drunken driving as a “crime” if it chooses, yet it has chosen not to do so for offenses numbered one through four.

	Links Wisconsin Supreme Court Related Article General repeater statute applies to drunken drivers

Admittedly, sec. 939.12, which the majority opinion used for its definition of “crime,” states, “A crime is conduct which is prohibited by state law and punishable by fine or imprisonment or both. Conduct punishable only by a forfeiture is not a crime.”

Nevertheless, sec. 939.62 references sec. 939.60, not sec. 939.12. Furthermore, even under the definition in sec. 939.12, drunken driving itself is still not a crime — only the status of the driver arguably makes it one.

In State v. Beasley, 165 Wis.2d 97, 477 N.W.2d 57 (Ct.App.1991), the court of appeals held that multiple offense drunken driving is a crime
under sec. 939.12, and therefore an escape by a drunken driver is a felony, rather than a misdemeanor. That decision is only a court of appeals decision, however, not a Supreme Court one. Furthermore, it fails to address the applicability of sec. 939.60.

As a final note, one need not look far to find the hazards of intermingling statutes that were not meant to be used in conjunction. Although neither opinion mentions it, the very sentence imposed by the circuit court in this case is patently unlawful.

The sentence for the OWI was withheld, and Delaney was placed on six years probation. However, sec. 973.09(1)(d)1. explicitly prohibits probation for a sentence under sec. 346.65(2)(b) or (c)(second or third offense)(for fourth or greater offenses, probation may be imposed, provided the court imposes at least the minimum jail time as a condition of that probation).

– David Ziemer

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David Ziemer can be reached by email.