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Ch. 961 Drug Offense – Sentencing – Mandatory Loss of Driving Privileges

State v. Jacob E. Herman, 2002 WI App 28, PFR filed 1/16/02
For Herman: Jack E. Schairer, Jefren E. Olsen, SPD, Madison Appellate


¶1        Jacob Herman appeals from the sentencing portion of a judgment convicting him of possession of THC contrary to WIS. STAT. § 961.41(3g)(e).  The circuit court suspended Herman’s operating privilege for six months after concluding that it had no discretion to impose less than the minimum suspension mandated by WIS. STAT. § 961.50, which applies to those who are convicted of violating WIS. STAT. ch. 961.  This appeal presents a single issue:  whether § 961.50 prescribes a “minimum sentence” as that term is used in WIS. STAT. § 961.438, which provides that minimum sentences for violations of ch. 961 are presumptive, rather than mandatory.  We conclude that a suspension imposed pursuant to § 961.50 is not a “minimum sentence” as that term is used in § 961.438 and that it is a mandatory penalty.  Accordingly, we affirm the judgment.

¶12      However, we conclude that WIS. STAT. § 961.50 is not, on its face, ambiguous.  First, § 961.50(1) provides that the penalty imposed is an additional penalty, above and beyond other penalties in WIS. STAT. ch. 961.  The statute states, “the court shall, in addition to any other penalties that may apply to the crime, suspend the person’s operating privilege ….” (emphasis added).  SeeKarow v. Milwaukee County Civil Serv. Comm’n, 82 Wis. 2d 565, 570, 263 N.W.2d 214 (1978) (use of the word “shall” creates a presumption that the statute is mandatory).  Moreover, there is no explicit attempt to incorporate WIS. STAT. § 961.438 in the statute, which arguably shows a lack of intent to apply § 961.438 to § 961.50.

¶13      Also, WIS. STAT. § 961.50 does not anticipate that an offender will receive a suspension of less than six months, or no suspension at all.  The statute provides that the circuit court “shall immediately take possession of any suspended license.”  The statute also lays out a specific timeline for seeking an occupational license.  This specificity does not contemplate that a person’s operating privilege may have been suspended for less than six months, or not at all.

§ 961.438 says that “minimum” sentences are merely “presumptive,” i.e., not mandatory. This limitation doesn’t control § 961.50, because, even though “sentence” is ambiguous in the sense that it might be broad enough to cover all forms of punishment including loss of driving privileges, § 961.50 is clear on its face. That provision expressly requires loss of driving “in addition to any other penalties that may apply.” In addition, this provision ties in with the federal scheme which made highway funds contingent on loss of driving for drug offenses.

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