Statutory Interpretation

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Richard R. Rusk

Case No.: 2019AP135-CR

Officials: KLOPPENBURG, J.

Focus: Statutory Interpretation

Richard Rusk pled no contest to and was convicted of operating a motor vehicle while intoxicated as a third offense. On appeal, Rusk challenges the circuit court’s denial of his motion to suppress evidence obtained as a result of the traffic stop of his vehicle, which was based solely on the belief of the officer who conducted the stop that Rusk’s white window tinting on the vehicle’s windshield extended too far down in violation of WIS. ADMIN. CODE § TRANS 305.34(6)(c) (May 2014).

In support of his appeal, Rusk makes two discernible arguments. First, Rusk argues that the express prohibition against window tinting below a certain portion of the windshield in WIS. ADMIN. CODE § TRANS 305.34(6)(c) is invalid because it imposes a standard that Rusk contends is more restrictive than the standard contained in what Rusk calls the rule’s “enabling statute,” WIS. STAT. § 346.88(3), as that statute was interpreted by our supreme court in State v. Houghton, 2015 WI 79, 364 Wis. 2d 234, 868 N.W.2d 143.3 Therefore, according to Rusk, the stop premised on his vehicle’s violation of an invalid rule was itself invalid, the officer’s “mistake of law” was unreasonable, and the evidence obtained as a result of the stop must be suppressed.

Second, Rusk seems to argue that the language in WIS. ADMIN. CODE § TRANS 305.34(6)(c), which prohibits window tinting below the “A” line, should not apply because it conflicts with the introductory language in subsection (6) providing that “[n]othing may be placed … so as to obstruct the driver’s clear vision through the windshield.” Rusk bases this argument on our supreme court’s interpretation in Houghton of language similar to that introductory language.

As I explain, Rusk’s first argument fails for at least the reason that this court lacks competency over his challenge to the validity of WIS. ADMIN. CODE § TRANS 305.34(6)(c) because Rusk fails to show that he served the Joint Committee for Review of Administrative Rules as required by WIS. STAT. § 227.40(5). Rusk’s second argument is defeated by the plain language of WIS. ADMIN. CODE §§ TRANS 305.34(6) and (6)(c).

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.