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Counting out-of-state “zero tolerance” OWI violations as prior offenses doesn’t violate Equal Protection Clause

State v. Daniel M. Hirsch, 2014 WI App 39; case activity

The equal protection clause isn’t violated by § 343.307(1)(d)‘s differing treatment of Wisconsin and out-of-state” zero tolerance” OWI offenses (which penalize drivers under the legal drinking age who drive with any alcohol concentration).

Hirsch had two prior driver’s license suspensions for violation Illinois’s zero tolerance law. Under § 343.307(1)(d), those suspensions count as prior OWI offenses, but violations of Wisconsin’s absolute sobriety violations do not count. State v. Carter, 2010 WI 132, ¶¶56, 59-64, 330 Wis. 2d 1, 794 N.W.2d 213. Hirsch argues this distinction violates equal protection by irrationally treating similarly situated people differently: Drivers with in-state absolute sobriety offenses and those with prior out-of-state zero tolerance offenses have engaged in the same conduct; given their similar characteristics, there is no rational basis for different treatment because distinguishing the two groups does not advance the purpose of the OWI laws, which is the identification and removal of drunk drivers from the roads. (¶7).

The rational basis test is deferential, asking only whether the statute has some relationship to advancing the legislature’s goal. State v. Smart, 2002 WI App 240, ¶7, 257 Wis. 2d 713, 652 N.W.2d 429. (¶12). Noting that in 1989 the legislature removed the requirement that out-of-state OWI violations would count as a prior only if the out-of-state statutes were “in conformity” with Wisconsin law, the court finds there is a rational basis for the legislature to have dispensed with the conformity requirement: 

¶10      …. It was reasonable to eliminate the conformity requirement between Wisconsin offenses and the countless other variations of these types of offenses, when our legislature has no authority over how they are defined and applied by prosecutors and the courts, much less how other jurisdictions might redefine or apply such offenses over time. Ease of administration in Wisconsin courts provides a rational basis for a single, straightforward, and broad definition of out-of-state offenses applicable to all other jurisdictions. The definition consistently counts all convictions under out-of-state laws prohibiting driving with an excess or specified range of alcohol concentration regardless of their labels or treatment. And, counting all such convictions serves the public good because an exception could lead to undercounting offenses that are defined or applied differently.

¶11      The statute’s classification of offenses is germane to the purpose of the law, which is “to encompass a broad array of convictions, suspensions, and revocations under the laws of another jurisdiction for counting purposes.” [Carter , 330 Wis. 2d 1, ¶63]. A broad interpretation of Wis. Stat. § 343.307(1) comports with the purpose of drunk driving laws, State v. List, 2004 WI App 230, ¶11, 277 Wis. 2d 836, 691 N.W.2d 366, which is to “facilitate the identification of drunken drivers and their removal from the highways,” State v. Neitzel, 95 Wis. 2d 191, 193, 289 N.W.2d 828 (1980). Thus, out-of-state convictions can be counted for sentence enhancement purpose even if they result from violations of statutes that differ significantly from our own. See State v. Puchacz, 2010 WI App 30, ¶¶12-13, 323 Wis. 2d 741, 780 N.W. 2d 536 (counting violations of Michigan’s law that prohibits operating a vehicle while visibly impaired due to consumption of alcohol).

The court also rejects Hirsch’s issue preclusion claim, which is based on the fact that in his three previous Wisconsin OWI cases the state conceded the Illinois zero tolerance violations didn’t count under Wisconsin law. (¶2). Two of the relevant five factors under Michelle T. v. Crozier, 173 Wis. 2d 681, 689, 495 N.W.2d 327 (1993), support the conclusion that issue preclusion is inappropriate. (¶¶13 n.4, 14). First, the state’s concessions came before Carter, 330 Wis. 2d 1, ¶¶38, 43, 59, changed the law by interpreting “convictions” to be counted under § 343.307(1)(d) to include suspensions under the Illinois zero tolerance law. (¶16). Second, as already discussed in the equal protection analysis, public policy supports counting out-of-state zero tolerance type offenses as prior offenses in OWI cases. (¶17).

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