COURT OF APPEALS
DECISION
DATED AND FILED
January 13, 2000
Marilyn L. Graves
Clerk, Court of Appeals
of Wisconsin
NOTICE
This opinion is subject to
further editing. If published, the official version will appear in the bound
volume of the Official Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
State
of Wisconsin,
Plaintiff-Respondent,
v.
Robert
L. Wedig,
Defendant-Appellant.
APPEAL from a judgment of the circuit court for Green County: james r. beer, Judge. Reversed.
¶1 EICH, J.[1] Robert L. Wedig appeals from a judgment
convicting him of operating a motor vehicle while intoxicated.
¶2 Wedig was arrested after police
found him in a parked automobile, with the engine not running; and he argues that,
on these facts, he could not be found to have been “operating” the vehicle in
violation of the statute because, under the law, for one to “operate” a vehicle
requires not only that he or she “start[] the motor and/or leave[] it running,”
but also that “the defendant physically manipulate or activate … the controls
necessary to put the … vehicle in motion.”
State
v. Modory, 204
Wis. 2d 538,
543,
555
N.W.2d 399
(Ct.
App. 1996),
citing Milwaukee
County v. Proegler, 95
Wis. 2d 614,
628-29,
291
N.W.2d 608
(Ct.
App. 1980)
(citations and internal quotations omitted).
¶3 The State,
for reasons unknown to us, has elected not to file a brief in opposition. We have often said that because a
respondent’s failure to file a brief is a tacit concession that the trial court
erred and the appeal has merit, we usually will reverse the judgment in such
circumstances. State
ex rel. Blackdeer v. Township of Levis, 176
Wis. 2d 252,
260,
500
N.W.2d 339
(Ct.
App. 1993).
And there is nothing here to suggest that this is one of those rare cases where
the issue is of such great public concern that we would elect, in the exercise
of our discretion, to consider it despite the lack of briefing. See Vogt
v. Nelson, 69
Wis. 2d 125,
127,
230
N.W.2d 123
(1975).
¶4 We
therefore reverse the judgment based on the State’s failure to file a brief
countering Wedig’s arguments.
By the Court.—Judgment
reversed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4 (1997-98).