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OWI – Second or Subsequent Offense – Out-of-State Administrative (Non-Refusal) Suspension Doesn’t Qualify

State v. Daniel J. Machgan, 2007 WI App 263
For Machgan: Patrick M. Donnelly

Issue/Holding: An out-of-state administrative DL suspension, not the result of a refusal, isn’t counted as a “conviction” for purposes of OWI enhancement:

¶12      After examination of these relevant statutes, we conclude that Wis. Stat. § 343.307, as the specific statute addressing out-of-state convictions, suspensions or revocations that are to be counted as priors for the purpose of penalty enhancement, controls over Wis. Stat. § 340.01(9r), a more general statute. ……

¶14      Subsection (d) lists the type of convictions “under the law of another jurisdiction” that are to be counted when determining the penalty to be imposed pursuant Wis. Stat. § 346.65(2) and counts, along with other listed convictions, a conviction “that prohibits a person from refusing chemical testing.” Subsection (e) then separately and specifically provides only one type of revocation and only one type of suspension “under the law of another jurisdiction” that is to be counted when determining the penalty to be imposed pursuant § 346.65(2): a revocation or suspension “arising out of a refusal to submit to chemical testing.” Thus, the express language and context of this statute distinguishes the meaning of conviction and the meaning of suspension providing that out-of-state convictions for refusal, along with a list of other convictions, are to be counted, but with regard to suspensions, only those arising out of a refusal are to be counted. If suspensions for out-of-state OWI arrests were meant to be lumped in with convictions or determinations based on OWI arrests for counting purposes, subsection (e) would be redundant to subsection (d)’s language which already provides for counting convictions for refusal. If the legislature wishes to count other out-of-state suspensions for penalty enhancement purposes, it is for the legislature to express, not for this court to surmise when the statutory language provides otherwise.

The court again stresses that the foreign “suspension was not the result of a refusal,” something that would have come within specific authorization, ¶16. And, State v. Arthur C. List, 2004 WI App 230, distinguished, ¶15, on (apparent) ground that court supervision in that case was a judicial rather than administration determination.

One last matter, purely procedural but no less perplexing for that: this is a state’s appeal from a sentence, something the court all but fails to mention, let alone discuss. (A glancing reference, “The State appeals,” ¶5, tantalizes but alas nothing follows.) The problem is this: “The State’s authority to appeal in criminal cases, as a matter of right, is governed by sec. 974.05, Stats.,” absent which no appeal can be taken, State v. Eichman, 155 Wis.2d 552, 559, 455 N.W.2d 143 (1990). OK, then, just what subsection of 974.05 applies to this case? Would’ve been nice if the court of appeals clued us in instead of making us guess. As it turns out, Machgan moved to dismiss and in an unpublished, single-judge summary order the court determined that the appeal was authorized by § 974.05(1)(a), whose text is: “an appeal may be taken by the state from any … (f)inal order or judgment adverse to the state … if the appeal would not be prohibited by constitutional protections against double jeopardy.” The court’s analysis reduced to this:

… An appeal to review the sentence is not barred by the double jeopardy clause.See United States v. DiFrancesco, 449 U.S. 117, 132 (1980) (“the Government’s taking a review of respondent’s sentence does not in itself offense double jeopardy principles just because its success might deprive respondent of the benefit of a more lenient sentence”). “The double jeopardy clause … does not guarantee the finality of sentences.” State v. Pierce, 117 Wis. 2d 83, 87, 342 N.W.2d 776 (Ct. App. 1983).

Well. This does leave a bit to be desired, doesn’t it? Pierce is a resentencing case – when a defendant obtains resentencing, he can get a stiffer sentence – and has nothing to do with the present situation. DiFrancesco does squarely hold that double jeopardy principles don’t apply to sentencings the same way they apply to convictions or acquittals, which at least kicks the can part way down the road. But not all the way. The Court held that Congressional legislation affording a governmental “right, under specified conditions, to appeal the sentence,” doesn’t offend double jeopardy. Why? Because this very legislation informs the defendant has no expectation of finality in the sentence: “Although it might be argued that the defendant perceives the length of his sentence as finally determined when he begins to serve it, and that the trial judge should be prohibited from thereafter increasing the sentence, that argument has no force where, as in the dangerous special offender statute, Congress has specifically provided that the sentence is subject to appeal. Under such circumstances there can be no expectation of finality in the original sentence.” Doesn’t it beg the question, then, to say that 974.05(1)(a) authorizes this appeal? The Wisconsin   legislature, unlike Congress, simply hasn’t “specifically provided that the sentence is subject to appeal.” Machgan has a very plausible claim, unlike DiFrancesco, that his sentence settled the matter of its length once and for all. The problem, starkly put, is this: if there is no bar to review of Machgan’s sentence, then it’s hard to see how the state would be barred from seeking review of any sentence it thinks too lenient. The underlying issue would be different—exercise of discretion as opposed to determination of the maximum penalty—but that is a mere detail and has nothing to do with impeding prosecutorial review. (And take a glance at State v. Gary J. Knapp, 2007 WI App 273.)

 

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