State v. Brian K. Sowatzke, 2010 WI App 81; for Sowatzke: Andrew R. Walter; BiC; Resp.; Reply
¶13 Sowatzke had two countable OWI “convictions, suspensions or revocations” (i.e., he had two OWI convictions) at the time he was arrested on May 9; he had a BAC of 0.048 percent at the time he was arrested on May 9; his legal BAC limit was 0.08 percent at the time he was arrested on May 9. Accordingly, the State could not properly charge him with a PAC based on his May 9 arrest. The circuit court properly dismissed the charge of fourth offense PAC.
As the blockquote suggests, Sowatzke had 2 priors when he picked up the May 9 OWI. He thereafter suffered his 3rd conviction, and the State added a 4th offense PAC. The long and short is that the charge is unsupportable because the number of qualifying priors is measured as of when the person was driving.
¶11 Thus, presented as we are with every indication in the statute itself that the legislature meant to make the crime of operating a motor vehicle with a prohibited alcohol concentration one which requires a person had the PAC at the time he or she drove or operated the motor vehicle, the State’s fourth offense PAC charge improperly criminalized a BAC of 0.048 percent when the legal limit on May 9 as it applied to Sowatzke—because he had no more than two convictions on this date—was a BAC of 0.08 percent.
The trial court ruled that by retrospectively reducing Soawatzke’s allowable PAC, the charge “applied the statutes in a manner that retroactively changed one of the elements [of the PAC charge] in an ex post facto manner.” The court of appeals doesn’t reach the ex post facto problem, resolving the appeal instead on the narrower ground of statutory construction, ¶2.