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OWI – Graduated Penalty Structure

State v. Henry T. Skibinski, 2001 WI App 109, 244 Wis. 2d 229, 629 N.W.2d 12
For Skibinski: Karma S. Rodgers

Issue: Whether a trial court can, after findings of guilt on second and third offense OWI, apply the increased penalties of OWI-3rd to both offenses at sentencing.

Holding: For several reasons, the sentence for OWI-2nd was limited to the applicable penalty for that discrete offense, even though the defendant was simultaneously being sentenced for OWI-3rd: a prior conviction is an element of OWI, so that when defendant was found guilty of OWI 2nd, he only had one prior OWI; an OWI graduated penalty requires a conviction, which in turn requires a sentence; otherwise, the penalty scheme would be subject to challenge on void-for-vagueness grounds; otherwise, the legislative directive — a graduated scheme of deterrence built into increasing penalties — would be vitiated, ¶¶8-13. Because the trial court imposed sentence thinking that the increased penalty for OWI-3rd applied to both offenses, resentencing is required in both cases, ¶14.

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