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OWI – Operating on Public “Premises” – Frozen Lake

State v. Todd M. Anderson, 2011AP1499-CR, District 2, 3/14/12

court of appeals decision (1-judge, not for publication); for Anderson: pro se; case activity

Frozen Lake Winnebago is a public “premises” within § 346.61, therefore supports prosecution for operating a vehicle on the lake while intoxicated. City of Kenosha v. Phillips, 142 Wis. 2d 549, 419 N.W.2d 236 (1988), discussed and applied.

¶9        Unlike the Phillips court, our task is to determine whether the area on which the alleged offense was committed was a “premises.”  To begin, we note that the Phillips court’s description of “premises” as “appear[ing] to mean any parcel of land or real estate,”see id. at 556, does not exclude a lake as a “premises.”  In fact, submerged land covered by the waters of a lake was identified as “premises” by our supreme court well before Phillips.  See Illinois Steel Co. v. Bilot, 109 Wis. 418, 428, 84 N.W. 855 (1901).

¶11      Further, while there are many different ways in which “premises” may be defined, Black’s Law Dictionary explains that when “premises” is used in a property and estates context, it is “an elastic and inclusive term, and it does not have one definite and fixed meaning; its meaning is determined by its context and is dependent on circumstances in which used, and may mean … any definite area.”  Black’s Law Dictionary 1180-81 (6th ed. 1990) (citing Allen v. Genry, 97 So. 2d 828, 832 (Ala. Ct. App. 1957)).

¶14      Considering this context, Wis. Stat. § 346.61 was not enacted with an eye toward limiting application of Wis. Stat. §§ 346.62 to 346.64 to reckless driving or drunken driving occurring only on certain types of surfaces, but was enacted to give “broader applicability” to our drunken and reckless driving laws “in the interest of public safety.”  See Phillips, 142 Wis. 2d at 555.  The legislature chose broad terminology, “all premises,” in order to more broadly protect the public from drunken and reckless drivers in other areas, besides just highways, which are navigable by motor vehicles, so long as those areas are held out to the public for use of their motor vehicles.  Consistent with this purpose, we conclude “premises” in § 346.61 includes a frozen lake like frozen Lake Winnebago.

Lake Winnebago is home to the world record for most vehicles – 36 – to break through ice, ¶10 n. 6.

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