Although the penalty enhancement scheme generally allows increased penalty for each prior OWI conviction, § 346.65(2)(am)5. provides that “convictions arising out of the same incident or occurrence shall be counted as one.” Nonetheless, Burke’s driving under the influence across the Michigan border, before being apprehended in Wisconsin, is not considered “the same incident or occurrence.” Rationale of State v. Ellis H., 2004 WI App 123, 274 Wis. 2d 703, 684 N.W.2d 157, applied:
¶9 Although we deal here with the penalty structure under Wis. Stat. § 346.65(2), and not the imposition of a secured detention underWis. Stat. § 938.355(6)(d), which was the focus of Ellis H., the court’s rationale in Ellis H. is equally applicable here. We must thus determine whether Holder, during his continuous stint of driving under the influence of an intoxicant, came to a proverbial “fork in the road” and if he did, whether it was or was not his intent to “invade a different interest.” Id. For the reasons we discuss below, we conclude that Holder came to a “fork in the road” when he came to the border between Michigan and Wisconsin, and intentionally invaded a different interest when he crossed into Wisconsin, subjecting himself to separate OWI charges in each state.
¶14 Accordingly, we conclude that although Holder’s Michigan and Wisconsin convictions stemmed from one continuous stint of driving, they arose from two separate incidents—one incident in Michigan and one incident in Wisconsin. We, therefore, conclude that Holder’s second offense OWI conviction in Wisconsin and his 2005 OUIL conviction in Michigan did not arise out of the same incident or occurrence and affirm the circuit court’s denial of Holder’s motion to strike.
The “fork in the road” metaphor derives from a multiplicity case, Harrell v. State, 88 Wis. 2d 546, 277 N.W.2d 462 (Ct. App. 1979): “If at the scene of the crime the defendant can be said to have realized that he has come to a fork in the road, and nevertheless decides to invade a different interest, then his successive intentions make him subject to cumulative punishment, and he must be treated as accepting that risk, whether he in fact knows of it or not.” (Quoting the concurrence in a federal case, Irby v. U.S., 390 F.2d 432, 437 (D.C. Cir. 1967).) Harrell sexually assaulted his victim once, waited 20-25 minutes and assaulted her again: two counts, not one, because “there was a sufficient break in conduct and time between the acts to constitute separate and distinct acts of rape,” 88 Wis. 2d at 565. The Holder court’s use of the analogy isn’t especially apt (though perhaps “fork in the road” proved too irresistible an image), no more apparent than in the court’s awkward search for terminology describing Holder’s activity (how do you get from “one continuous stint of driving” to “two separate incidents” of driving? and just what is a “stint of driving”?). There is no doubt that Wisconsin and Michigan each had its own territorial jurisdiction over the offense occurring within its respective borders, § 939.03(1); ¶¶10-13. But doesn’t it beg the question to say that territorial jurisdiction trumps § 346.65(2)(am)5? The latter section limits penalty enhancement, not the allowable unit of prosecution; is irrelevant, that is, to multiplicity analysis. Nothing impeded separate prosecutions and convictions by Michigan and Wisconsin, but this specific provision inhibits Wisconsin from counting the result as two, rather than one, prior conviction. That is the argument, anyway, and it’s far from clear that the court has dispatched it convincingly.