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Defense wins in calculation of the 10-year period under § 346.65(2)(am)2.

State v. Bobby Lopez, 2017AP923-CR, District 2, 2/13/17 (one-judge decision; ineligible for publication); case activity (including briefs)

In order to be “within” the 10-year period under § 346.65(2)(am)2., the subsequent offense must occur before the tenth anniversary of the prior offense. Thus, Lopez’s July 9, 2016, OWI offense is not “within [the] 10-year period” that began on July 9, 2006, the date of his prior offense, and he can’t be charged with second-offense OWI.

The state argued that it could charge Lopez with a second offense given the rule in § 990.001(4)(a) and (d), which say that statutory time periods for doing an act or “taking” a proceeding are calculated by excluding the first day and including the last. Under that rule, the 10-year period began on July 10, 2006, the day after Lopez’s first offense, making the July 9, 2016, offense “within” the 10-year period. (¶¶6-7). But § 346.65(2)(am)2. doesn’t prescribe the doing of an act or “taking” of a proceeding, the court of appeals concludes; “it changes the character of an OWI/PAC offense based on the number of offenses committed within a ten-year period, but does not, in our reading, prescribe when a proceeding must occur or when a specific act must take place.” (¶8). So § 990.001(4) doesn’t apply.

Instead, the court applies the dictionary definition of “within” “([i]nside the limits or extent of in time, degree, or distance”) and the normal meaning of “year” (one of each of the days in each calendar year) and concludes the § 346.64(2)(am)2. time period begins on the date of the offense and ends 10 years out from that date—the day before the tenth anniversary. (¶10).

In addition to relying on State v. Wertheimer, 781 N.W.2d 158 (Minn. 2010), which came to the same conclusion regarding a similar statutory scheme, the court finds support for its reading in the common-law counting rule for limitations generally. Under that rule, the triggering event date is included and the date of the limitation excluded. Siebert v. Jacob Dudenhoefer Co., 178 Wis. 191, 194, 188 N.W. 610 (1922), abrogated by § 990.001(4) as stated in Pufahl v. Williams, 179 Wis. 2d 104, 109, 506 N.W.2d 747 (1993). (¶¶5, 15).

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