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Statutory summary suspension from Illinois counts as prior conviction under § 343.307(1)

State v. Akil C. Jackson, 2014 WI App 50; case activity

Under State v. Carter, 2010 WI 132, 330 Wis. 2d 1, 794 N.W.2d 213, Jackson’s statutory summary suspension in Illinois resulting from an OWI and PAC citation counts as a prior conviction under § 343.307(1) even though the citation was eventually dismissed.

Carter considered whether a prior suspension of operating privileges under the Illinois “zero tolerance” law should be counted as a prior conviction under § 343.307. Quoting § 340.01(9r), the court determined that the term “conviction” in § 343.307(1)(d) means “an unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or an authorized administrative tribunal.” Carter, 330 Wis. 2d 1, ¶¶42, 47-48. As with the “zero tolerance” law suspension, an Illinois statutory summary suspension starts with police officer’s initial determination that a person has violated or failed to comply with the OWI law. The officer notifies the driver, the appropriate court, and the secretary of state of the determination via a sworn statement, and the secretary affirms the suspension unless the person takes advantage of the law’s opportunity to challenge the suspension judicially (in summary suspension cases) or administratively and then judicially (in zero tolerance cases).

Finding “little distinction of import between the procedures in an Illinois statutory summary suspension and those in an Illinois zero tolerance suspension,” the court concludes Jackson’s statutory summary suspension is a “conviction” under Wis. Stat. § 343.307(1)(d) because it is “a determination … in … an authorized administrative tribunal” that Jackson “violated or failed to comply with the law.” (¶¶5-11).

However, the circuit court did err in counting a different Illinois conviction as a prior under § 343.307. In that case Jackson was initially arrested for OWI, but the charge was amended to reckless driving. To count as a prior conviction, the law under which Jackson was convicted must prohibit conduct specified in § 343.307(1)(d)–namely, refusing to submit to chemical testing; operating while intoxicated; operating with an excess alcohol concentrations; etc. Carter, 330 Wis. 2d 1, 45. The Illinois reckless driving statute doesn’t pass this test:

¶16      The State has pointed to no language in subsection (1)(d) suggesting Jackson’s reckless driving conviction qualifies as a prior conviction thereunder, nor do we find any. Instead, the State asks us to expand the language of Wis. Stat. § 343.307(1)(d)—which, again, counts prior out-of-jurisdiction convictions—by asking us to look at what offense was originally charged, what sanctions were imposed by the court on the reckless driving conviction, and how that conviction would preclude Jackson from being placed on supervision for a subsequent OWI conviction in Illinois. It is the job of the legislature, however, not the courts, to amend statutes….

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