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COURT OF APPEALS DECISION DATED AND RELEASED September 5, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1342-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JEROME M. WYWIAL,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Rock County: JAMES P. DALEY, Judge. Affirmed.
ROGGENSACK,
J. The defendant, Jerome M. Wywial (Wywial), appeals the
denial of his motion to dismiss one count of operating a motor vehicle while
under the influence of an intoxicant (OMVWI) and his conviction. On appeal[1],
Wywial contends that the initiation of a criminal OMVWI prosecution subsequent
to the imposition of an administrative suspension of his driving privileges
violates the Double Jeopardy Clause of the Fifth Amendment of the United States
Constitution. Wywial's argument is
contrary to controlling precedent.
Accordingly, the decision of the trial court is affirmed.
BACKGROUND
On October 5, 1994,
Wywial was stopped after the officer observed his vehicle weaving in and out of
his lane of travel. The officer noted
Wywial smelled strongly of alcohol, his eyes were blood shot, his speech was
slow and he admitted having had six or seven beers. When he exited the car, he staggered. Wywial agreed to take a preliminary breath screening test, which
registered 0.21. He was arrested for
OMVWI and operating a motor vehicle with a prohibited blood alcohol
concentration, in violation of §§ 346.63(1)(a) and (b), Stats.
After he failed a
chemical test for intoxication with a reading of 0.20 at the Rock County Jail,
Wywial was served with a Notice of Intent to Suspend Operating Privilege; and
his driver's license was administratively suspended pursuant to § 343.305, Stats.
Based on the occurrences
of October 5th, Wywial was charged in a criminal complaint. He filed a Motion to Dismiss the Complaint,
on double jeopardy grounds because of the administration suspension. The trial court denied the motion. Wywial then pled no contest to the
OMVWI. The court adjudged him guilty;
sentenced him to jail; imposed a fine; suspended his license; and ordered an
alcohol assessment.
DISCUSSION
Scope
of Review.
Wywial argues that the
administrative suspension of his operating privileges is a
"punishment"; and therefore, prosecution of the OMVWI constitutes
placing him twice in jeopardy of punishment for the same offense, in violation
of the Double Jeopardy Clause. His
contention requires analysis of both the Fifth Amendment of the United States
Constitution[2] and
Wisconsin's Implied Consent Law, § 343.305, Stats. Because the question involves the
application of constitutional principles to undisputed facts, the issue will be
reviewed de novo. State v.
Pheil, 152 Wis.2d 523, 529, 449 N.W.2d 858, 861 (Ct. App. 1989).
Double
Jeopardy.
The Fifth Amendment of
the United States Constitution provides that no person shall "be subject
for the same offense to be twice put in jeopardy of life or limb." The Double Jeopardy Clause includes three
distinct constitutional guarantees:
(1) protection against a second prosecution for the same offense
after an acquittal; (2) protection against a second prosecution for the
same offense after a conviction; and (3) protection against multiple
punishments for the same offense. State
v. Kurzawa, 180 Wis.2d 502, 515, 509 N.W.2d 712, 717, cert. denied,
___ U.S. ___, 114 S. Ct. 2712, 129 L. Ed. 2d 839 (1994). Wywial argues that he was subjected to
multiple punishments for the same offense, contrary to the third prong of
double jeopardy analysis.
A civil penalty may
constitute "punishment" when the penalty serves the goals of
punishment, such as retribution or deterrence.
United States v. Halper, 490 U.S. 435, 448 (1989). However, the Wisconsin Court of Appeals has
already determined that § 343.305, Stats.,
is remedial in nature because it was enacted to keep drunken drivers off the
road. State v. McMaster,
198 Wis.2d 542, 548, 543 N.W.2d 499, 501, petition for review granted,
546 N.W.2d 468 (1996). In other words,
the primary purpose of the implied consent law is to protect innocent drivers
and pedestrians, rather than to punish drunken drivers. Id. McMaster represents the current state of Wisconsin
law, and is binding on this court.
Therefore, Wywial's criminal prosecution for operating a motor vehicle
while intoxicated, after the administrative suspension of his operating
privileges, did not constitute multiple punishments, and did not violate the
Double Jeopardy Clause.
By the Court.--Judgment
affirmed.
Not recommended for
publication in the official reports. See
Rule 809.23(1)(b)4, Stats.
[2] Article I, sec. 8 of the Wisconsin Constitution also provides that "no person for the same offense may be put twice in jeopardy of punishment." However, Wisconsin interprets its double jeopardy clause in accordance with the rulings of the United States Supreme Court, State v. Kurzawa, 180 Wis.2d 502, 522, 509 N.W.2d, 712, 721, ___ U.S. ___, 114 S. Ct. 2712, 129 L. Ed. 2d 839 (1984), and because the defendant does not raise the Wisconsin constitutional issue, this analysis is limited to the federal clause.