OWI – Blood Alcohol Content Violation

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jeffery Scott Wiganowsky

Case No.: 2019AP884-CR

Officials: BLANCHARD, J.

Focus: OWI – Blood Alcohol Content Violation

Under Wisconsin’s penalty structure for operating while intoxicated (OWI) offenses, the level of offense severity is determined in part by “the total number of [driving privilege] suspensions, revocations, and other convictions counted under [WIS. STAT.] § 343.307(1).” WIS. STAT. § 346.65(2)(am)2. (emphasis added). Pertinent here, one paragraph in § 343.307(1) provides that “convictions” for counting purposes include those imposed under the law of another state that prohibits “an excess or specified range of alcohol concentration” in the blood of an operator. Sec. 343.307(1)(d).

Here, a Wisconsin prosecutor charged Wiganowsky with a second OWI offense based on the allegation that a Wyoming “Blood Alcohol Content violation”—not a formal conviction, but instead the result of a Wyoming administrative process—counts as a first OWI “conviction” under the Wisconsin OWI counting law. I will refer to this as “the Wyoming BAC violation.” Wiganowsky argued successfully in the circuit court that the Wyoming BAC violation should not count as a prior “conviction” under WIS. STAT. § 343.307(1)(d) and that, therefore, this case involves only a first offense.

Following the reasoning of opinions of our supreme court and the court of appeals, I conclude that the State has carried its burden of establishing that the Wyoming BAC violation is a valid basis for imposition of the enhanced penalty, and accordingly reverse. See State v. Carter, 2010 WI 132, ¶¶38, 43, 59, 330 Wis. 2d 1, 794 N.W.2d 213 (interpreting “convictions” counted under WIS. STAT. § 343.307(1)(d) to include administrative suspensions under Illinois law); State v. List, 2004 WI App 230, ¶¶2-3, 7, 10-11, 277 Wis. 2d 836, 691 N.W.2d 366 (interpreting “convictions” counted under § 343.307(1)(d) to include an Illinois court’s placement of a person charged with OWI on court supervision).

As pertinent to the issues on appeal, the State charged Wiganowsky with second-offense OWI based on an alleged drunk driving incident in Jefferson County. The amended complaint alleged that this was a second offense due to the Wyoming BAC violation on Wiganowsky’s driving record. More specifically, the State took the position that Wyoming records establish that the Wyoming BAC violation is a “conviction” for purposes of counting under WIS. STAT. §§ 343.307(1)(d) and 340.01(9r).

I reject this argument on the ground that the court in Haglund limits its analysis of the Wyoming statute to the acquittal-based-on-factual-innocence scenario. There is no starting point for Wiganowsky’s argument, given this limited holding in Haglund, because it explicitly rests on the determination that, when the trial court “accepted” Haglund’s defense that she had not driven drunk, this stood as a valid finding that she was not in fact intoxicated at the time at issue in the suspension, and therefore “there is no need to” continue with the suspension. See Haglund, 982 P.2d at 703. In sharp contrast, Wiganowsky was deferred, not “acquitted,” on the Wyoming criminal drunk driving charge, nor was there any finding by any court or agency that he did not have the alleged excess blood alcohol concentration.

Wiganowsky’s second argument is that the allegations of the amended complaint fail to state or give rise to reasonable inferences sufficient to support the further allegation that the Wyoming BAC violation counts under Wisconsin OWI law. This argument may have two, alternative parts: (1) the amended complaint is too vague, or is incomplete, in referencing the Wyoming BAC violation; or (2) even if it makes sufficiently clear, complete references to the Wyoming BAC violation, it is insufficient to explain why the Wyoming BAC law counts under Wisconsin law. Judgment reversed and cause remanded.

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.