OWI Appeal - Out of State Reckless Counts as a Prior, Says Wisconsin

In State of Wisconsin v. Malsbury, Slip Copy, 2011 WL 2201190 (Wis.App.) the defendant appealed a determination that he was a second offender, based upon his prior conviction in another state (Washington) where the original charged was amended/reduced from DUI to reckless driving. As stated by the Wisconsin court:
"The issue in this appeal is whether Malsbury's reckless driving conviction in Washington counts as a previous conviction for purposes of Wisconsin's OWI law. Wisconsin has an accelerated penalty structure for OWI offenses such that each successive OWI conviction results in greater penalties. WIS. STAT. § 346.65(2). When determining the penalty for OWI, Wisconsin courts count:

Convictions under the law of another jurisdiction that prohibits a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction's laws."

In most jurisdictions (if not all of them) penal statutes are strictly construed in favor of the accused. Under a strict reading of the Wisconsin statute, a reckless driving doesn't count. But that's not what Wisconsin said:

"We hold that Malsbury's Washington reckless driving conviction counts as a prior conviction for purposes of Wisconsin's accelerated OWI penalty structure. Our decision is guided by Washington's DUI penalty structure, which counts a conviction for reckless driving as a “prior offense” when the conviction was originally charged as DUI. See WASH. REV.CODE ANN.. § 46.61.5055(14)(v) (West 2011). Malsbury's sentence has all the characteristics of an OWI-type conviction: he was ordered to undergo an alcohol assessment, attend a victim impact panel, and attend alcohol information school. Finally, for purposes of OWI sentence enhancement, Wisconsin counts “[c]onvictions under the law of another jurisdiction that prohibits a person from ... using a motor vehicle while intoxicated ... [or] with an excess or specified range of alcohol concentration.” WIS. STAT. § 343.307(1)(d).

Wisconsin admittedly decided that what was worst for the defendant was best for the citizens of Wisconsin:

"We hold that Malsbury's Washington reckless driving conviction counts as a prior conviction for purposes of Wisconsin's accelerated OWI penalty structure. Our decision is guided by Washington's DUI penalty structure, which counts a conviction for reckless driving as a “prior offense” when the conviction was originally charged as DUI. See WASH. REV.CODE ANN.. § 46.61.5055(14)(v) (West 2011). Malsbury's sentence has all the characteristics of an OWI-type conviction: he was ordered to undergo an alcohol assessment, attend a victim impact panel, and attend alcohol information school. Finally, for purposes of OWI sentence enhancement, Wisconsin counts “[c]onvictions under the law of another jurisdiction that prohibits a person from ... using a motor vehicle while intoxicated ... [or] with an excess or specified range of alcohol concentration.” WIS. STAT. § 343.307(1)(d).

"Our holding is consistent with the purpose of Wisconsin's OWI laws. As the Wisconsin Supreme Court stated, WIS. STAT. § 343.307(1)(d) was meant to “apply broadly to prior out-of-state conduct.” State v. Carter, 2010 WI 132, ¶ 42, 330 Wis.2d 1, 794 N.W.2d 213. We will construe the OWI laws “to facilitate the identification of drunken drivers and their removal from the highways.” State v. Neitzel, 95 Wis.2d 191, 193, 289 N.W.2d 828 (1980). Additionally, “the purpose of general repeater statutes is to increase the punishment of persons who fail to learn to respect the law after suffering the initial penalties and embarrassment of conviction.” State v. Banks, 105 Wis.2d 32, 49, 313 N.W.2d 67 (1981). Counting Malsbury's reckless driving conviction in Washington as a previous conviction furthers the goal of Wisconsin's OWI laws."

Editor's Opinion: Courts generally do not interfere with legislative decisions. In fact, where a statute is clear and unambiguous, it should be applied without resort to other extrinsic aid, or without resort to determining legislative intent. Surely the statute, if it was meant to include a DWI/DUI reduced to reckless, could have specifically included that phrase. The court failed to follow the doctrine of "inclusio unius est exclusio alterius" which means "the inclusion of one thing necessarily excludes all others not specifically mentioned."


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