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Entry of order to install ignition interlock device triggered 0.02 BAC limit

State v. Joshua H. Quisling, 2017AP1658-CR, District 4, 4/12/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Quisling was “subject to” a court order to install an ignition interlock device (IID) under § 343.301 (2013-14) even though the requirement for actually installing the device was contingent on DOT issuing him a driver’s license, and that hadn’t happened yet.

When the court issued the IID order in Quisling’s first offense OWI case it could have provided under § 343.301(2m) (2013-14) that the device was to be installed immediately; but the court didn’t do that, so by default the installation requirement took effect on the issuance of a driver’s license. Quisling was subsequently charged with operating with a prohibited alcohol concentration for driving with a 0.07 BAC. The state alleged he had a 0.02 BAC limit under § 340.01(46m)(c) because of the  IID order, but Quisling argued he wasn’t “subject to” the IID order yet because he hadn’t been issued a new driver’s licence. The court of appeals rejects this claim, holding that he was “subject to” the order despite the contingency as to when the device must be installed:

¶23     Quisling’s argument confuses two timing concepts that are treated as distinct in the statutory language: (1) when a device must first be installed and (2) when a person becomes and remains subject to a device installation order. As the State points out, “delaying the effective date of [required installation] does not change whether [the] person is subject to the order” requiring installation, in the event that the department issues a license.

¶24    Turning to the statutory analysis, Wis. Stat . § 340.01(46m)(c), which contains the “subject to” language, is itself part of a list of definitional terms. The pertinent portion of the statute is merely the following short phrase: “If the person is subject to an order under s. 343.301.” …. This language provides no clue that “subject to” has a technical or specialized meaning. Neither party provides a specific definition for the phrase “subject to” generally, nor for the phrase as specifically used in § 340.01(46m)(c).

¶25     However, one dictionary definition for the phrase “subject to” that would appear to fit this context is the following: “affected by or possibly affected by (something).” https://www.merriam-webster.com/dictionary (last visited on Apr. 9, 2018). I see no reason not to treat this broad definition as suitable for the facially broad phrase “subject to,” which the legislature selected to define the 0.02-limit operator in this context. The legislature did not select more narrow or detailed language, as it could have.

¶26     It is evident that, at a minimum, Quisling was at all pertinent times a person who was “subject to” the 12-month device installation requirement in the order from the prior case, because it was something that possibly affected him. The possible effect of the order was certain from the moment of entry: if the department ever issued a driver’s license to him, he would be obligated to install a device for a twelve-month period. The fact that the department had not issued a license to him by [the date of this offense] does not mean that the order had expired under its own terms, or that it had been nullified by operation of any law cited by Quisling.

As noted, this decision applies the 2013-14 version of § 343.301(2m). The relevant language in the IID statute was amended by 2017 Wis. Act 124 (effective 12/10/2017) to specify that the restrictions on the person’s operating privileges “shall begin on the date the order … is issued….” See § 343.301(2m)(a).

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