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On laws, sausages and driving drunk

David Ziemer

David Ziemer

Otto von Bismarck is frequently attributed with saying that no man should see how laws or sausages are made.

Having witnessed the legislature in action on several occasions, I can attest that the statement is true, at least as to laws.

But we’re lawyers, so the process by which laws are made is important to us, at least if we can credibly argue that the resulting statute is ambiguous.

Nevertheless, researching legislative history is a tedious thing to do, and more often than not, it is not especially enlightening.

There is one statute, however, on which I have personal knowledge regarding the legislative intent, sec. 346.65(2)(am) & (bm). These statutes provide the penalties for driving while intoxicated.

In relevant part, they provide that if a defendant has only one prior conviction for driving while intoxicated, and the conviction is more than 10 years old, the second conviction also counts as a first offense.

But if the defendant gets a third conviction, at any point in his life, it’s a third, etc.

Does that sound arbitrary? Do you wonder how the legislature came up with that?

Well, let me tell you. Back in the olden days, convictions more than 10 years old didn’t count, period.

Then, one day, I was appointed to represent a disbarred attorney who had racked up three arrests for driving while intoxicated in less than a month. They were charged as first, second, and third offenses. In truth, they were the 11th, 12th, and 13th. But the first 10 all predated the final three by more than 10 years, and so, it was as if they never had happened.

Until the local media found out. They had a grand time, following him around and secretly filming him, while he continued to drive without a license, in a vehicle he claimed to the court he had given away.

At least once a week, I’d get a phone call at about 4 in the afternoon from the judge, telling me that my client and I had better be in court at 8:30 the next morning, or a warrant would issue. Since my client didn’t have a telephone, this was an even bigger hassle than it sounds like.

I should point out, by the way, that my client did not lose his law license because he racked up those 10 convictions. You didn’t get disciplined for that in those days. Instead, the Supreme Court took away his law license for groping a woman who came to see him about getting a divorce.

But back to the point. Nobody had a problem with the way prior convictions were counted before this case came along. But, when the teetotalers found out that an 11th offense could be charged as a first, and a 13th as a third, they marched down to the capitol and demanded change.

And no legislator was going to defy them, when they had the ultimate poster child for change – my client.

As a result, the law was amended without careful deliberation. Legislators didn’t consider how far back they should look when you count prior convictions. All they cared about was that, come the next election, their opponent couldn’t associate them with my client.

Over the years, the statutes have been amended from time to time, but the motivation is always the same.

The teetotalers find a new poster child, and the legislators are compelled to “do something,” lest they be regarded as a defender of that person. Deliberation be damned. And that is how laws are made in the State of Wisconsin.

By now, I’m sure you are all curious what happened to my client. He was sentenced to two years in jail. However, they had to let him out early, for his own protection, after he turned in a guard at the House of Correction for selling drugs to the inmates.

He then moved down to Florida, where, after getting 86’d from a tavern one night, he walked in front of a speeding train and was killed instantly. The engineer told police that my client waved to him before contact.

And that’s how sausage is made.

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