State v. Jack Ray Zimmerman, Jr., 2020AP475, District 2, 11/4/20 (one-judge decision; ineligible for publication); case activity (including briefs)

….not “lifetime since January 1, 1989.”

This is an appeal from an order revoking Zimmerman’s operating privileges for refusing a blood test after being arrested for OWI, third offense. Zimmerman argues his decision to refuse wasn’t fully informed because the officer “mischarged” him and wrongly informed Zimmerman he was on his third OWI offense. (¶¶2-3, 8 n.2).

According to Zimmerman, the officer was wrong because his two prior convictions—which were for violations of §§ 940.09 and 940.25—occurred in 1988. (¶3). That is before January 1, 1989, which matters, Zimmerman says, because in 1997 Wis. Act 237, § 9348(2f), the legislature said that offenses occurring before January 1, 1989, can’t be counted for calculating priors under the statutes amended in Act 237, which included §§ 343.305(10)(b) (revocation term for refusal) and 346.65 (OWI penalties).

But a few years after Act 237, the legislature amended the OWI statutes again, in 1999 Wis. Act 109. The relevant amendment Act 109 made to the OWI penalty statutes specifies that, when counting priors, all convictions of §§ 940.09 and 940.25 “in the person’s lifetime” are included. Id., §§ 43-46. Zimmerman argues that the interaction between the Act 109 changes and the Act 237 provision looking back only to January 1, 1989, renders the penalty statute ambiguous and that the rule of lenity requires the Act 237 look-back date controls. (¶¶4-6).

The problem with this argument is that, by creating a lifetime look-back period for convictions under §§ 940.09 and 940.25—and putting it right into the statute, to boot—the 1999 Act clearly (even ostentatiously) undid the look-back provision for those convictions previously created in the 1997 Act. And so the court of appeals holds:

¶7     We see no ambiguity here as this statute is as plain as they come, and there is no reason to look outside of it. See Zelman v. Town of Erin, 2018 WI App 50, ¶12, 383 Wis. 2d 679, 917 N.W.2d 222 (in interpreting a statute, “[w]e first look to the language of the statute, and if the language is clear and unambiguous, we define the language of the statute in accordance with its ordinary meaning” (citation omitted)). Under the language chosen by the legislature, if at any time during a person’s life he/she was convicted under Wis. Stat. §§ 940.09(1) or 940.25(1), each such conviction shall be counted. There simply is no other reasonable way to read the language.

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