This opinion addresses § 346.65(2)(am)6. as it applied to OWI 7th, 8th, and 9th offenses committed between July 1, 2010, when the statute first took effect, and April 10, 2014, when it was amended by 2014 Wis. Act 224. During that time period, the statute provided that the offense was a Class G felony, and that “[t]he confinement portion of a bifurcated sentence imposed on the person under [§] 973.01 shall be not less than 3 years.” The supreme court concludes this language is ambiguous because it could be read either to require a court to impose a bifurcated sentence or, instead, to permit a court to order probation with or without imposition of a bifurcated sentence, but that the legislative history makes it clear the language requires courts to impose a bifurcated sentence with a mandatory minimum three-year period of initial confinement.
The court of appeals held that § 346.65(2)(am)6. clearly and unambiguously does not require imposition of a bifurcated sentence, but only sets the minimum term of confinement in the event the judge decides to impose such a bifurcated sentence. (¶14). The supreme court agrees that is one possible reading of the language because the statute doesn’t say the court shall impose a bifurcated sentence. But the statute also doesn’t say “if the court imposes a bifurcated sentence,” so it could also mean the court must impose a bifurcated sentence with at least three years of confinement. (¶21).
Given that the words of the statute considered alone aren’t clear, the court looks to the history, statutory structure and context, and “contextually manifest purpose” of the statute to try to determine the statute’s plain meaning, State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶48, 271 Wis. 2d 633, 681 N.W.2d 110 (scope, context, and purpose are relevant to a plain-meaning interpretation of a statute as long as they are ascertainable from the statute itself, rather than extrinsic sources). In this case those factors suggest § 346.65(2)(am)6. requires courts to impose a bifurcated sentence with a minimum period of initial confinement because:
- The statutory history of § 346.65(2) shows that § 346.65(2)(am)6.—along with § 346.65(2)(am)7., which had identical language requiring four years of confinement for OWI 10th or more—were “anomalous” (¶26) because, as created by 2009 Wis. Act 100, §§ 43-44, they didn’t explicitly require a minimum sentence and thus departed from the general trend toward explicit harsher mandatory minimum sentences as the number of OWIs increase. (¶¶22-31).
- The statutory structure and context likewise reveal a pattern of increasing minimum penalties, a change of imprisonment from jail to prison as the number of prior convictions increases, and an implicit limitation on probation for 7th and subsequent OWI offenses. (¶¶32-35).
- The “contextually manifest purposes” of the statute—evidenced by its history, structure, and context—are punishment, treatment, and protection of the public from repeat OWI offenders, all of which are served by a graduated penalty structure with increasing mandatory minimums rather than a scheme which allows a court to decline to order any confinement for a 7th or higher OWI offense. (¶¶36-38).
While those factors suggest the statute requires a bifurcated sentence with a minimum term of confinement, the fact the anomalous statutes were created in an Act that introduced a clear mandatory minimum in another part of the statute mean the statute “is not so clear that well-informed people should not have become confused.” (¶39). Therefore, the statute is ambiguous, the court turns to legislative history—specifically, descriptions of the proposed and subsequently enacted legislation by legislative branch agencies—and concludes § 346.65(2)(am)6. requires sentencing courts to impose a bifurcated sentence with at least three years of initial confinement. (¶¶40-45).
A concurrence by Chief Justice Abrahamson, joined by Justice Bradley, agrees with the court of appeals’ conclusion that the statute did not require imposition of a bifurcated sentence. (¶54). However, the concurrence agrees with the result because, in direct response to the court of appeals’ decision, the legislature enacted 2013 Wis. Act 224 (effective April 10, 2014), which changed § 346.65(2)(am)6. The new version makes it clear the court must impose a bifurcated sentence with a minimum period of confinement of three years, and that shows the legislature’s original purpose in creating the statute. (¶¶56-60).
As noted above, 2009 Wis. Act 100 also created § 346.65(2)(am)7., which required a minimum four-year term of confinement for OWI 10th or more. This opinion obviously means a court must impose a bifurcated sentence with at least four years of confinement for any OWI 10th or above committed between July 1, 2010, and April 10, 2014. Further, Act 224 also changed § 346.65(2)(am)7. for offenses committed after April 10, 2014, and the new version requires the court to impose a bifurcated sentence with a minimum period of confinement of four years.
The opinion is a mostly unremarkable application of the reigning rules of statutory interpretation, which are at best indeterminate (not to say easily manipulated) when a statute isn’t clear. (As described in our post here, the court of appeals came to a different conclusion using the same rules.) For instance, the history and structure of the OWI statutes show a graduated penalty scheme and increasing minimums, but doesn’t that makes the strikingly “anomalous” penalty provisions for OWI 7th and above offenses all the likely to be an intentional departure from the usual scheme? Moreover, it’s not hard to see the legislature could have a purpose in departing from that scheme in light of the long look-back period for prior offenses, which could mean someone with a high number of priors may have gone years without driving drunk. Take Williams, for instance: His last OWI was in 1998, roughly 12 years before the one he was being sentenced for. (¶11). For a defendant already in treatment and/or working to support a family, the law’s “contextually manifest purposes” might be better served with probation than three or four years in prison (as the sentencing judge here recognized (¶13)).
The court goes astray, though, in dismissing as irrelevant the fact that other true mandatory minimum sentencing statutes, i.e., §§ 939.618 and 939.619, explicitly say the defendant may not be placed on probation. True, they are not OWI statutes (¶39 n.18), but they are relevant to show the legislature knows how to create unambiguous mandatory minimum sentencing statutes. Worse, the court says those statutes’ probation-prohibition language is “not need[ed]” because under § 973.09(1)(d) probation is available for crimes with minimum sentences only if the minimum is less than one year (¶34 n.12). Treating language as unnecessary violates the rule that statutory interpretation should avoid surplusage, Kalal, 271 Wis. 2d 633, ¶46. Further, the court’ s reading of § 973.09(1)(d) commits the very error the court accuses Williams of making: It assumes the issue to be decided by treating § 346.65(2)(am)6. as imposing a minimum of more than one year. If § 346.65(2)(am)6. doesn’t do that, then § 973.09(1)(d) doesn’t bar probation. (¶34).
Finally, it might seem odd the concurring justices agree with the court of appeals about the meaning of the statute but join the majority’s result because of the amendments made by Act 224. After all, statutory interpretation discerns the meaning of the statute as written, not the unenacted intent of the legislature, Kalal, 271 Wis. 2d 633, ¶¶38-44. If the court of appeals was right about the meaning of the statute applicable to Williams’s offense, it doesn’t matter that the legislature has since learned it didn’t clearly express its intent and then fixed the statute. The author of the concurrence, though, holds that discerning the legislature’s intent, not just the statute’s meaning, is the aim of statutory interpretation, id., 70-72 (Abrahamson, C.J., concurring).