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Enhancers — Multiple Enhancers — §§ 346.65(2), 939.62

State v. Richard W. Delaney, 2003 WI 9, affirming unpublished decision
For Delaney: Joseph R. Cincotta

Issue/Holding:

¶1 … Specifically, Delaney asks this court to determine whether Wis. Stat. § 939.62 (1999-2000) was properly applied to his already enhanced OWI offense under Wis. Stat. § 346.65(2)(c), based on the existence of a past non-OWI offense, so as to enhance Delaney’s penalty twice for count one of his judgment of conviction. We answer in the affirmative, and conclude that a defendant convicted of the crime of second-or subsequent-offense OWI, as Delaney has been, is subject to the penalty enhancements provided for in both §§ 346.65(2) and 939.62, so long as the application of each enhancer is based on a separate and distinct prior conviction or convictions.

§ 939.62(3) specifically excludes from the definition of “felony” and “misdemeanor” all “motor vehicle offenses under chs. 341 to 349.” The court construes this to plainly mean that OWI – a motor vehicle offense — is plainly a crime subject to § 939.62, while at the same time prior OWIs (or other traffic offenses) may not themselves serve as enhancers. ¶20. Bottom line: OWI may be enhanced, but can’t be a § 939.62 enhancer. Who knew? And, State v. Ray, 166 Wis. 2d 855, 481 N.W.2d 288 (Ct. App. 1992) limited to its facts, namely: no multiple enhancement only where “the predicate offense is for the same conviction.” ¶¶30-34.

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