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The statutes authorize fines for 7th and greater OWI offenses

State v. Michel L. Wortman, 2017 WI App 61; case activity (including briefs)

A glitch in the OWI penalty statute appears to suggest that OWI 7th and greater offenses don’t allow for a fine, but only for the imposition of the forfeiture provided for first-offense OWI. The court of appeals concludes otherwise. The court also rejects Wortman’s claim that he was under arrest when a sheriff’s deputy transported him back to the scene of the accident he was in.

The arrest

A sheriff’s deputy responding to a call about a truck in the ditch found Wortman walking away from the scene. The deputy put on his lights, drove up to Wortman, and pulled in front of Wortman to block his path. (¶2). Applying State v. Quartana, 213 Wis. 2d 440, 570 N.W.2d 618 (Ct. App. 1997), the court rejects Wortman’s claims that the deputy’s actions constituted an arrest and that Wortman’s subsequent responses to the deputy’s questions should be suppressed because he was in custody and never given Miranda warnings:

¶10     Like Quartana, a reasonable person in Wortman’s situation would not have believed he was under arrest. [Deputy] Pfeiffer was investigating an accident when he observed Wortman walking away from the scene and stopped him to investigate. Wortman explained that he had fallen asleep at the wheel and that he had been drinking. Pfeiffer smelled intoxicants and observed glassy eyes. Pfeiffer drove Wortman the 100 yards back to the scene of the accident.

¶11     Pfeiffer’s investigation continued at the accident scene. Pfeiffer determined that Wortman had eight prior OWI convictions and was on extended supervision. Pfeiffer conducted field sobriety tests, which Wortman failed. Wortman was then placed under arrest and handcuffed. The entire encounter, from investigatory stop to arrest, took approximately fifteen minutes. Until his arrest, Wortman was not in handcuffs, was not held for an extended period of time in the squad car, and was not frisked. Pfeiffer’s failure to immediately return Wortman’s driver’s license did not transform the Terry stop into an arrest. See Quartana, 213 Wis. 2d at 449. We conclude that under our test for reasonable suspicion, specific and articulable facts presented evidence that criminal activity was afoot (OWI). Pfeiffer had the legal authority to briefly speak with Wortman regarding the accident and to extend the stop based on the additional factors supporting reasonable suspicion. A reasonable person in Wortman’s shoes would not have considered himself under arrest until such time as he was formally arrested and placed in handcuffs. ….

The fine

Wortman was convicted of OWI 9th and, in addition to getting a prison sentence, was fined $1,524. He argues OWI 7th and greater offenses don’t allow for fines, but only a forfeiture of between $150 and $300, because § 346.65(2)(am)1.—which states the basic civil forfeiture penalty for OWI—makes an exception for subdivisions 2 through 5 (OWI 2nd through 6th), but does not make an exception for subdivision 6 (OWI 7th, 8th, or 9th) or subdivision 7 (OWI 10th or more). (¶12 & n.7). The court rebuffs this reading of § 346.65(2)(am):

¶15     Upon review of the language of the statute, the intent of the legislature is clear. Wisconsin Stat. § 346.65(2)(am)2.—7. clearly provides for increasing fines and terms of imprisonment based on the number of convictions amassed by the defendant. Subdivision (2)(am)6. provided that an individual, like Wortman, convicted of nine OWIs was guilty of a Class G felony. Sec. 346.65(2)(am)6. (2011-12). Under Wis. Stat. § 939.50(3)(g), the penalty for a Class G felony is “a fine not to exceed $25,000 or imprisonment not to exceed 10 years, or both.” The plain language of the statute provided that Wortman was guilty of a Class G felony and, therefore, subject to a fine of $25,000. To construe the statute differently would be directly contrary to the language of §§ 346.65(2)(am)6. and 939.50(3)(g). Further, if we accepted Wortman’s reading, a seventh or greater OWI offense would not constitute a crime as “[c]onduct punishable only by a forfeiture is not a crime.” Wis. Stat. § 939.12. ….

As the court notes (¶14 n.8), when Wortman was convicted the offense was a Class G felony. Beginning January 1, 2017, OWI 7th, 8th, or 9th is a Class F felony and OWI 10th or greater is a Class E felony. See 2015 Wis. Act 371. Those penalty changes don’t affect the reasoning or result of this decision.

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