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Ignition interlock must be ordered in first offense OWI when defendant has prior offense outside the 10 year counting period

Village of Grafton v. Eric L. Seatz, 2014 WI App 23; case activity

“The issue presented is straightforward:  Must a court order the installation of an ignition interlock device when a defendant is convicted of first-offense operating while intoxicated (OWI) and also has a prior conviction for an OWI offense?  The answer is yes.” (¶1).

Seatz was arrested for OWI. His blood alcohol content was .13. He had a prior conviction, but it was more than 10 years prior to the offense date. Thus, in accord with § 346.65(2)(am)1. and 2. he was charged with a first offense. He argued the ignition interlock device requirement did not apply to him because § 343.301(1g)(b)2. refers to the convictions that are “counted” under § 343.307(1), which must refer to using the prior conviction to penalize him as a repeat offender. Because his prior conviction was outside the 10-year look-back period in § 346.65(2)(am)2., it isn’t “counted” for penalty purposes or, therefore, for purposes of ordering the ignition interlock device. (¶6). The court disagrees:

¶7        The significance of Wis. Stat. § 343.307(1) as it relates to Seatz is that his Michigan conviction constitutes a prior OWI conviction for purposes of the penalties and collateral consequences for OWI convictions in Wisconsin. See § 343.307(1)(d). Seatz does not challenge whether his 1997 Michigan OWI conviction is a prior OWI conviction under § 343.307(1). As the prior conviction occurred more than ten years before the 2012 charge, however, Wis. Stat. § 346.65(2)(am)2. prevents Seatz from being charged with or criminally penalized for a second offense under Wisconsin’s accelerated penalty scheme for OWI offenders. In contrast, Wis. Stat. § 343.301(1g)(b)2. requires an order for ignition interlock devices when a person violates Wis. Stat. § 346.63(1) and has one or more prior OWI convictions, including convictions counted under § 343.307(1)(d), i.e., OWI convictions from other jurisdictions. Unlike § 346.65(2)(am)2., § 343.301(1g)(b)2. provides no restrictions on how to count prior convictions under § 343.307(1) for purposes of ordering ignition interlock devices.

¶8        The ten-year look-back provision in Wis. Stat. § 346.65(2)(am)2. for purposes of determining whether to charge or penalize a repeat OWI offender civilly or criminally is independent of whether a person has one or more prior OWI convictions under Wis. Stat.§ 343.307(1) and has no effect on orders for ignition interlock devices under Wis. Stat. § 343.301. The different language of §§ 346.65(2)(am)2. and 343.301(1g)(b)2. indicates that the legislature had different intentions for how each statute treats prior OWI convictions. Cf. Wis. Stat. § 343.30(1q)(b)3.State v. Banks, 105 Wis. 2d 32, 42-43, 313 N.W.2d 67 (1981). The absence of an explicit attempt to incorporate the ten-year limitation from § 346.65(2)(am)2. into either § 343.307(1) or § 343.301(1g)(b)2. shows the legislature did not intend to apply the ten-year limitation to the ignition interlock device statute. See State v. Herman, 2002 WI App 28, ¶12, 250 Wis. 2d 166, 640 N.W.2d 539.

Note that the ignition interlock device requirement applies to OWI offenders regardless of their prior record if they have a BAC of more than .15 or if they refused a chemical test, § 343.301(1g)(a) and (b)1. (¶5).

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