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  • WisBar News
    March 12, 2014

    OWI Offender Loses Equal Protection Appeal to Exclude Illinois Convictions

    March 12, 2014 – A man convicted on his sixth offense operating while intoxicated (OWI) recently lost his appeal to keep “zero tolerance” violations in Illinois from counting as prior OWI convictions for sentence enhancement purposes here in Wisconsin.

    Wis. Stat. section 343.307(1) governs what prior OWI related offenses count for purposes of sentencing. In determining penalties, the statute counts out-of-state convictions for driving “with an excess or specified range of alcohol concentration.”

    The provision counts out-of-state convictions under so-called “zero-tolerance” or “absolute sobriety” laws, which prohibit any alcohol in the systems of younger drivers. But a prior conviction under Wisconsin’s absolute sobriety law does not count.

    Under the equal protection clauses of the Wisconsin and U.S. Constitutions, governments cannot treat similarly situated people differently.

    Thus, Daniel Hirsch argued that Wisconsin, under section 343.307(1), was treating out-of-state convictions differently than in-state convictions for similar conduct.

    Hirsch’s license was suspended twice for violating Illinois’ zero tolerance law. He was subsequently convicted on OWI-related offenses in Wisconsin. He previously managed to keep prior Illinois convictions from counting as prior offenses for penalty purposes.

    But in 2010, facing a sixth OWI charge, the trial judge refused to exclude the Illinois convictions for purposes of determining Hirsch’s penalty as a repeat offender.

    Under section 346.65(2), a person convicted on five or six OWI offenses, counted under section 343.307(1), is a Class H felon and must serve a minimum of six months in jail.

    Hirsch appealed his conviction for sixth offense OWI. But in State v. Hirsch, 2013AP427-CR (May 12, 2014), a three-judge panel for the District II Wisconsin Court of Appeals rejected Hirsch’s argument that section 343.307(1)(d) is unconstitutional.

    The appeals court panel concluded that section 343.307(1)(d) does not violate the Equal Protection Clause, “even if a consequence is to treat Illinois’ zero tolerance offenses differently than Wisconsin absolute sobriety offenses.”

    Wisconsin has a “rational basis” to treat out-of-state zero-tolerance convictions differently than convictions for similar offenses in Wisconsin, the panel noted.

    The panel explained that in 1989, the legislature removed a requirement that out-of-state OWI violations are counted as “priors” only if the violated statute “conformed” to Wisconsin law. This change recognized the difficulty in construing other state laws.

    The panel noted that Wisconsin can control and consistently apply its own absolute sobriety laws, but the legislature “has no such authority over out-of-state offenses.”

    “Ease of administration in Wisconsin courts provides a rational basis for a single, straightforward, and broad definition of out-of-state offenses applicable to all other jurisdictions,” Judge Lisa Neubauer wrote for the three-judge panel, which affirmed the lower court.

    The appeals panel also rejected Hirsch’s argument that the issue was precluded because prior Wisconsin courts had excluded his Illinois zero-tolerance offenses. The panel noted that the law and policy has changed since Hirsch’s last OWI conviction.

    In State v. Carter, 2010 WI 132, 330 Wis. 2d, 794 N.W.2d 2013, the court clarified that Illinois zero-tolerance convictions are now specifically counted as “prior” OWI offenses.

    The court properly denied Hirsch’s preclusion argument, the panel noted, “[g]iven the change in law regarding counting out-of-state zero tolerance or absolute sobriety type offenses and the public policy in favor of broad interpretation of our drunk driving laws.”

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