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Record didn’t support order to install ignition interlock on spouse’s car

State v. Marguerite Alpers, 2015AP1784-CR, 1/12/16, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court erroneously exercised its discretion in ordering Alpers to install an ignition interlock device “on [her] husband’s car” as a condition of probation in her OWI cases because the record didn’t establish the condition was a reasonable and appropriate means of advancing the goals of rehabilitation and public protection, State v. Miller, 2005 WI App 114, 11, 283 Wis. 2d 465, 701 N.W.2d 47.

¶15     Upon our review of the record, we conclude there are two problems with the circuit court’s order.

¶16    First, there is nothing in the sentencing transcript to establish the particulars of “her husband’s car” or her authority to install a device on it. While the circuit court referred to Alpers’s “husband’s car,” there is nothing in the record to establish that Byron Alpers owned a car: the car that Byron Alpers drives could belong to another family member, a neighbor, or a rental company. Even if the circuit court was correct in its assumption that Byron Alpers owned a vehicle, there is nothing in the record to establish that Marguerite Alpers had an ownership interest in the vehicle. Consequently, the circuit court could not reasonably conclude—based upon this record—that Alpers had the authority to install an IID on “her husband’s car.”

¶17     Second, because there are so few facts about Alpers’s “husband’s car” in the record, the circuit court had no grounds on which to find that the order was necessary. We do not rule out the possibility that grounds could be established in some other case, on some other record, for such an order. But here the record does not show what car(s) Alpers was driving when she committed her offenses; certainly, the connection between rehabilitation, community protection, and the installation of an IID would be stronger if the car that was the subject of the order had been the one used in the criminal activity. Nor does the record show—contrary to the circuit court’s finding—that Alpers even had actual access to “her husband’s car.” There is no information in the record setting forth where the car was generally kept, where the keys were kept, or how many sets of keys existed.

(Emphasis added.)

Alpers didn’t challenge a separate probation condition ordering her to install an IID on “any vehicle operated/owned” by her. (¶¶10-11).

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