# SCOW clarifies how to calculate OWI fines subject to multiple enhancers

State v. Charles L. Neill, IV, 2020 WI 15, 2/14/20, reversing a published decision of the court of appeals; case activity (including briefs)

In this decision the supreme court explains how to calculate the minimum fine for an OWI when the fine is subject to multiple enhancer provisions. The supreme court’s calculation is better for defendants than the one arrived at by the court of appeals, though not the more favorable one advanced by Neill.

Neill pleaded to an OWI-3rd, which has a minimum fine of \$600. Wis. Stat. § 346.65(2)(am)3. He was subject to two statutory fine enhancers: one for having a blood-alcohol content over .25 (Wis. Stat. § 346.65(2)(g)3.); the second for having a minor passenger in the car (§ 346.65(2)(f)2.). The first one quadruples the minimum fine, while the second one doubles it. So what’s the minimum fine?

As we explained in our post on the court of appeals’ decision, the two-judge majority held that a court should first apply the BAC enhancer, and then enhance the enhanced fine using the minor passenger enhancer, resulting in the following calculation: \$600 x 4 (=\$2,400) x 2 = \$4,800. A dissenting judge disagreed, saying the statutory language required each enhancer to be calculated separately and the enhanced fines added together. Under that approach, the enhanced fine is \$2,400 (\$600 x 4) plus \$1,200 (\$600 x 2), for a total of \$3,600. (¶¶11-12).

A unanimous supreme court agrees with the dissenting court of appeals’ judge, saying that is the result commanded by the plain language of the statutes:

¶28     For a third-OWI conviction, the “applicable minimum” is \$600. Wis. Stat. § 346.65(2)(am)3. The text of paragraph (f) instructs a court to “double” the \$600. The text of paragraph (g) instructs a court to “quadruple” the \$600. There is nothing in the text suggesting that application of the first penalty enhancer “alters” or “increases” or sets a higher minimum fine for third- OWI when the second penalty enhancer also applies. The text does not direct a court to start with the already “doubled” fine or the already “quadrupled” fine when applying a second penalty enhancer. Rather, it plainly instructs a court to use the “applicable minimum” for third-OWI contained in § 346.65(2)(am)3. Adopting the construction espoused in the majority opinion of the court of appeals would require rewriting the statute or adding words to make the “applicable minimum” vary based not on the number of OWIs of which an offender has been convicted, but on what penalty enhancers apply. A court’s job is not to rewrite a statute. See Segregated Account v. Countrywide Home Loans, Inc., 2017 WI 71, ¶15, 376 Wis. 2d 528, 898 N.W.2d 70. Alteration of the minimum applicable fine when multiple penalty enhancers apply lies with the legislature, not this court.

Neill’s proposed interpretation was that when two multiplying enhancers apply, the lesser is necessarily subsumed by the greater, so only the greater is applied. (¶20). The court likewise says the text of the statute does not support this reading:

¶29     …. Nothing in the text of the statute suggests giving effect to the greater enhancer alone when multiple penalty enhancers apply. We must apply the text as written, which requires a fine for both driving drunk with a minor passenger and a fine for driving with a high BAC. “Penalty enhancers . . . authorize specified increases to separate specified penalties for underlying crimes. Thus, the underlying crime has a penalty, and the enhancer adds an additional penalty.” [State v.] Beasley, [2004 WI App 42,]  271 Wis. 2d 469, ¶14[, 678 N.W.2d 600]. In order to give effect to both penalty enhancers, the fine associated with each must be paid.