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COA holds, over dissent, that OWI fine enhancers enhance each other

State v. Charles L. Neill, IV, 2018AP75, 12/4/18, District 1 (recommended for publication); case activity (including briefs)

Neill pleaded to an OWI-3rd, which has a minimum fine of $600. Wis. Stat. § 346.65(2)(am)3. His plea came with two statutory enhancers: the one for having a BAC over .25 (Wis. Stat. § 346.65(2)(g)3.), and the one for having a child in a car (§ 346.65(2)(f)2.). The former quadruples the minimum fine, and the latter doubles it. So, what’s the minimum fine?

Per the majority here, it’s $600 x 4 x 2, or $4,800. They reach this result by concluding that the statutes unambiguously say the enhancers are multiplied together to get the new minimum fine. Here’s the entire substance of the analysis:

A plain reading of the statute reveals that there is no language precluding the application of both enhancers to the same offense. Furthermore, “multiple enhancers may normally be applied to the same underlying crime.” State v. Beasley, 2004 WI App 42, ¶14, 271 Wis. 2d 469, 678 N.W.2d 600. Thus, we reject Neill’s argument that only the excessive blood alcohol content enhancer should be applied to reduce his fine to $2400.

Moreover, we find that the statute clearly indicates that adding either of the penalty enhancers changes the base minimum fine. Both provisions state that “the applicable minimum and maximum fines” are increased as a result of the behavior of the person convicted of the offense. See WIS. STAT. § 346.65(2)(f)2., (2)(g)3. In other words, the minimum fine is altered based on the conduct of the defendant. Therefore, after one enhancer is applied, that increased minimum fine is used as the base for purposes of calculating the other enhancer.

(¶¶22-23).

There are two major problems here. First, let’s allow, for the sake of argument, that there’s “no language precluding” the court’s interpretation of the statute. There’s also clearly no language precluding Neill’s interpretation, which would, at the very least, make the statute ambiguous.

An even bigger problem: there is, in fact, language precluding the court’s interpretation of the statute–but the court cuts it out of the quote. The end of the phrase “applicable minimum and maximum fines” in each of the enhancers is “…under par. (am)([relevant subparts]).” So, each enhancer explicitly directs that it is to be multiplied to the statutorily enumerated minimums–here, $600. The larger applicable enhancer would make that $2,400–so why isn’t that the minimum fine?

Judge Kessler, in dissent, makes a similar point, though she concludes that the proper course is to add the results of each enhancer for a total of $3,600. (¶¶25-29).

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