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Driver’s prior IID order hadn’t expired, so his prohibited alcohol concentration was 0.02, not 0.08

State v. Dominic A. Caldiero, 2021AP1163-CR, District 4, 4/28/22 (one-judge decision; ineligible for publication); case activity (including briefs)

When he drove in 2019, Caldiero was still “subject to” a 2015 court order under § 343.301 (2013-14) restricting his operating privilege to cars with an ignition interlock device (IID) because the time period on that restriction does not begin to run till DOT issues him a driver’s license, and that hadn’t happened as of the date he was driving.

Caldiero had a 0.07 BAC when he was stopped in 2019. His license was still revoked from his last OWI conviction in 2015 because he’d never sought reinstatement. Among other things, the state charged him with operating with a prohibited alcohol concentration on the theory he had a 0.02 BAC limit under § 340.01(46m)(c) because he was subject to the IID order from his OWI second offense. (¶¶4-7).

Caldiero argues that he wasn’t governed by the 0.02 limit because he was no longer subject to the IID operating restriction. This is so, he contends, because when the court issued the IID order in Caldiero’s second offense OWI case in September 2015 it provided, as allowed under § 343.301(2m) (2013-14), that the device was to be installed immediately. Thus, he says, the 13-month period for the restriction on his operating privilege began to run immediately and expired in October 2016. (¶¶8-10, 22). The court of appeals says he’s misreading the IID statute, which has two different requirements (¶¶17-18) to which he was subject:

¶23     …Caldiero’s interpretation … improperly conflates the two separate requirements in WIS. STAT. § 343.301[(1g)] (2013-14). Caldiero is correct insofar as he argues that the court had discretion under [§ 343.301(2m) of] the 2013-14 statute to order the immediate installation of an ignition interlock device. However, even if the court ordered him to immediately install a device, that does not mean that the restriction on his operating privilege began to run on the date the court issued the September 2015 order. The September 2015 order revoked Caldiero’s operating privilege for 13 months; therefore, he had no operating privilege to restrict at that time. Caldiero’s argument that the restriction on his operating privilege ran alongside the revocation of his operating privilege defies any reasonable interpretation of the statute—a driver cannot have his operating privilege revoked and, at the same time, have an operating privilege that is subject to a restriction.

¶24      …[C]ontrary to Caldiero’s interpretation, the plain language of WIS. STAT. § 343.301(1g) (2013-14) demonstrates that the restriction on Caldiero’s license is separate from the requirement that he install an ignition interlock device on vehicles titled or registered in his name. In other words, it does not matter whether or not the court ordered Caldiero to immediately install such a device—under (2m), the restriction on Caldiero’s operating privilege will “begin[] on the date the department [of transportation] issues any license.” Id. …. Therefore, Caldiero continues to be “subject to an order under s. 343.301” (2013-14) until the department reinstates his license and the period of restriction runs its course.

Caldiero also argued in the circuit court that he was not yet subject to the IID order because it does not begin to run until he reinstated his operating privileges. He doesn’t renew that argument on appeal, and if he had the court would have rejected it for the same reason it rejected an identical argument in State v. Quisling, No. 2017AP1658, unpub. slip op. (WI App April 12, 2018). (¶¶8, 20-21).

As we also noted in our post on that case, § 343.301(2m) was amended by 2017 Wis. Act 124 (effective 12/10/2017) to provide that the restrictions take effect immediately (“shall begin on the date the order … is issued”) and continue to run for specified time periods that begin after the person is issued a license.

Caldiero also argues he’s entitled to some sentence credit. He is not. His arrest in this case led to a probation hold in an unrelated case. His probation was revoked and he was given a short time-served sentence and released about a year before he was sentenced in this case. He argues the sentence in this case should be deemed to be concurrent with his revocation sentence because it wasn’t ordered to be consecutive, but it’s well settled that separate and distinct sentences imposed and served at different times are de facto consecutive sentences. State v. Morrick, 147 Wis. 2d 185, 432 N.W.2d 654 (Ct. App. 1988); State v. Jackson, 2000 WI App 41, 233 Wis. 2d 231, 607 N.W.2d 338. (¶¶27-36).

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