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OWI — the penalty language of § 346.65(2)(am)6. does not require the court to impose a bifurcated sentence

State v. Clayton W. Williams, 2013 WI App 74, petition for review granted 11/21/13; reversed, 2014 WI 647/15/14; case activity

Wisconsin Stat. § 346.65(2)(am)6. makes OWI 7th, 8th, or 9th a Class G felony, but also provides that “[t]he confinement portion of a bifurcated sentence imposed on the person under s. 973.01 shall be not less than 3 years.” While the language refers to the imposition of a bifurcated sentence and specifies the minimum term of incarceration in the event a bifurcated sentence is imposed, the court of appeals holds that “nothing in the plain language of the subdivision mandates or requires that a bifurcated sentence be imposed.” (¶9).

In rejecting the state’s argument that the language “clearly assumes a bifurcated sentence will imposed” and “implies” such a sentence is mandatory (¶¶8, 14), the court looks to the surrounding statutory language for guidance:

¶11      When we look at the surrounding statutes in Wis. Stat. § 346.65(2)(am), Kalal, 271 Wis. 2d 633, ¶46, we see that those statutes contain the mandatory language that is missing in § 346.65(2)(am)6.  Section 346.65(2)(am) sets forth the various penalties for violating Wis. Stat. § 346.63(1).   In subdivisions 2. through 5., which set forth the penalties for second offense OWIs through sixth offense OWIs, the legislature included language establishing mandatory minimum sentencing requirements.  Subdivision 2. provides that a defendant guilty of a second offense OWI “shall be fined not less than $350.”  Section 346.65(2)(am)2.  Subdivision 3. provides that a defendant guilty of a third offense OWI “shall be fined not less than $600 … and imprisoned for not less than 45 days.”  Section 346.65(2)(am)3.  Subdivision 4. and subdivision 4m. provide that a defendant guilty of a fourth offense OWI “shall be fined not less than $600 … and imprisoned for not less than 60 days” or “shall be fined not less than $600 and imprisoned for not less than 6 months,” depending on when the prior convictions occurred. Sections 346.65(2)(am)4. and 4m.  And subdivision 5. provides that a defendant guilty of a fifth or sixth offense OWI “shall be fined not less than $600 and imprisoned for not less than 6 months.”  Section 346.65(2)(am)5.  No such similar mandatory language is included in subdivision 6. for seventh and subsequent offenses.  See Responsible Use of Rural and Agric. Land v. PSC, 2000 WI 129, ¶39, 239 Wis. 2d 660, 619 N.W.2d 888 (When the legislature uses words in one subsection but not in another, “‘we must conclude that the legislature specifically intended a different meaning.’” (quoted source omitted)).

Because the circuit court sentenced Williams under the mistaken belief that he was subject to a mandatory minimum sentence, the case is remanded for resentencing. (¶16).

A refreshingly exact reading of the plain statutory language–language made even plainer by other OWI penalty provisions, which show that the legislature knows how to create mandatory minimum penalties when it wants to. For other examples of how the legislature creates mandatory sentences, see the statutes prescribing the minimum sentence and providing that the court shall (or may) not place the person on probation or may place the person on probation only if certain criteria are met. See, e.g., §§ 939.617, 939.618(2)(a), 939.619(2), 973.09(1)(c).

Note that § 346.65(2)(am)7., which makes OWI 10th or more is a Class F felony, also sets a minimum confinement (of 4 years) for any bifurcated sentence imposed. For the same reasons given in this opinion, that language doesn’t create a mandatory minimum penalty for 10th or more offenses.

Judge Blanchard dissents, finding the statutory language ambiguous (¶¶20-28) and noting the “puzzling feature” that under the majority’s construction a court doesn’t have to impose prison, but if it does the sentence must include at least 3 years of confinement. (¶29). Having concluded the statute is ambiguous, the dissent canvasses the legislative history and finds evidence the legislature intended to create a mandatory minimum sentence. (¶¶31-39). Between the dissent and the fact this opinion isn’t recommended for publication, it seems likely this isn’t the last word on the matter.

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