A sentencing court may not prohibit a defendant convicted of OWI from driving a motor vehicle as a condition of extended supervision when the length of extended supervision exceeds the maximum period for revoking operating privileges set by § 343.30.
Hoppe was convicted of OWI 7th and sentenced to four years, six months of confinement and four years, six months of extended supervision (ES). In addition to revoking Hoppe’s license for three years, the maximum period allowed under § 343.30(1q)(b)4., the court prohibited Hoppe from operating a motor vehicle as a condition of ES. (¶¶2-3). Hoppe challenged that condition on the grounds it conflicts with § 343.30(5), which says a court may not restrict a person’s right to operate a vehicle except as provided under ch. 343. The circuit court concluded there was no conflict because ch. 343 governs the ability to obtain or retain operating privileges, and the ES condition does not prohibit Hoppe from obtaining or retaining those privileges; instead, it only precludes him from operating a vehicle. (¶¶4, 10).
The court of appeals rejects the circuit court’s reasoning, saying it “falls apart” in light of the meaning of “operating privilege”:
¶12 …. By definition, “operating privilege” does not mean just the physical license document…. Rather, it “means, in the case of a person who is licensed under ch. 343, the license, including every …authorization to operate vehicles of specific vehicle classes …; [and] in the case of a resident … who is not so licensed, it means the privilege to secure a license under ch. 343 ….” Wis. Stat. § 340.01(40) (emphasis added). The legislature then defined “Operator’s license,” which “means the authorization granted to a person by this state … to operate a motor vehicle, including a driver’s license ….” Wis. Stat. § 340.01(41g) (emphasis added)…. The special statutory definition of “operating privilege”—the state-granted authorization to operate a vehicle—is entirely consistent with a common meaning of the term privilege: a granted right. Thus, it is apparent that the Wis. Stat. § 343.30(5) limitation on courts suspending or revoking operating privileges precludes not only restrictions on obtaining a physical license document, but also on the privilege to operate a vehicle.
The court of appeals also notes that if the circuit court’s interpretation was correct, the legislature would have had little need to create § 343.30(2d), which allows a court to suspend operating privileges of a person convicted of certain sex offenses. “If a court had independent authority to impose conditions of supervision restricting operating privileges in any case where it deemed it appropriate, then it would be peculiar indeed for the operator’s license statutes to grant courts an essentially duplicate authority, particularly in a class of crimes that are generally unrelated to vehicles.” (¶14).