COURT OF APPEALS
DATED AND FILED
October 7, 2009
Clerk of Court of Appeals
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
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
State of Wisconsin,
Charlie N. Burton,
APPEAL from a judgment and an
order of the circuit court for Walworth
s. gibbs, Judge. Affirmed.
¶1 SNYDER, J. Charlie N. Burton appeals from a judgment
finding him guilty of operating a motor vehicle while under the influence of an
intoxicant (OWI), fourth violation, contrary to Wis. Stat. §§ 346.63(1)(a) and 346.65(2)(am)4. He also appeals from an order denying his
motion for sentence modification. Burton contends that he should not have been subjected to
the enhanced penalties for a fourth offense because only one of three prior Colorado convictions qualified as a prior offense under Wisconsin law.
¶2 The State charged Burton
with a fourth offense, alleging that he had prior countable offenses on April
22, 1990, February 19, 1994, and January 28, 2003. The complaint contained the following
information concerning Burton’s
OWI charge being a fourth offense:
Upon conviction, this would be a FOURTH OFFENSE of the
type charged herein, as defined by 346.65(2)(d) and
(2)(g), Wisconsin Statutes ….
. . . .
Complainant has reviewed a teletype report of
the defendant’s driving record, received from the T.I.M.E. interpolice agency
reporting system, which teletypes he/she has referred to in the past and found
to be accurate and reliable. According
to said teletype, a copy of which is attached to and incorporated in this
complaint, the defendant has been previously convicted 3 TIMES for VIOLATIONS of the type charged herein and is
considered a prior offense under 346.65(2)(c) and 343.307, Wisconsin Statutes,
the VIOLATION dates being: 04/22/1990,
02/19/1994 & 01/28/2003.
¶3 On November 29, 2007, Burton
filed a motion challenging the April 1990 and January 2003 citations, both from
argued that they did not qualify as prior violations for enhancement purposes
under Wisconsin OWI law. Specifically, Burton averred, “That
upon information and belief, the State has offered no proof as to two of the
three alleged prior drunk driving convictions.” Burton
did concede that the February 19, 1994 incident qualifies as a prior violation.
¶4 The State produced a certified copy of Burton’s Colorado
driver history at the motion hearing on February 4, 2008, and cited to holdings
v. White, 177 Wis. 2d 121, 501 N.W.2d
463 (Ct. App. 1993) (addressing prior Minnesota violation) and State v. List, 2004 WI
App 230, 277 Wis. 2d 836, 691 N.W.2d 366
(addressing prior Illinois
violation), to support treating this conviction as a fourth offense. The trial court denied Burton’s motion to amend the charge to a
pled guilty to the OWI charge, but reserved his right to argue against the
penalty enhancement. At the sentencing
hearing, Burton produced a certified Wisconsin driving record that listed only one prior
offense. He argued that the two disputed
Colorado offenses were for driving while
impaired by alcohol, an offense that has no counterpart in Wisconsin
law. The Colorado statute cited for the
two disputed prior offenses does not invoke a specific blood alcohol
concentration; rather, it links consumption of alcohol to the effect on the
person “to the slightest degree so that the person is less able than the person
ordinarily would have been, either mentally or physically, or both mentally and
physically, to exercise clear judgment, sufficient physical control, or due
care in the safe operation of a vehicle.” See Colo. Rev. Stat. § 42-4-1301(g) (2008). The State responded that the offense is
“certainly under the influence” and that the court had already accepted the Colorado driving record
as proof of three prior convictions. The
circuit court held that:
[I]n just looking at the definition of driving while
ability impaired that’s [been] submitted by defense counsel … that sounds to me
like operating under the influence.
I am not exactly sure what it is Colorado is attempting to accomplish with
this … variance here. If this is some
sort of middle ground to resolve other matters … I don’t have any idea. That would be speculation on my part, but
it’s clear that it’s a conviction for operating while impaired by alcohol….
[G]oing through the gymnastics of trying to figure out that that’s not really a
drunk driving [offense] and so it shouldn’t be counted I don’t think is in any
way what was intended by … our legislature in dealing with situations like this….
The fact of
the matter is [Burton’s] been arrested and convicted three prior times in the
State of Colorado for operating to the point where he was … unable to exercise
clear judgment, sufficient physical control, or due care in the safe operation
of a motor vehicle because of his alcohol use, and I think … that’s still what
is meant under [Wis. Stat. §]
343.307.… I think that these are
The circuit court then sentenced
imposing enhanced penalties for a fourth OWI offense. Burton
first contends that the circuit court erred by sentencing him for a fourth OWI
offense without sufficient proof of prior convictions. The State bears the burden of establishing
prior offenses as the basis for the imposition of enhanced penalties under Wis. Stat. § 346.65(2). State v. Wideman, 206 Wis. 2d 91, 94, 556
N.W.2d 737 (1996). If the existence or
applicability of a prior offense is challenged, or there is an assertion of
lack of information or the defendant is silent about a prior offense, the State
must establish the prior offense for the imposition of the enhanced penalties
of § 346.65(2) by presenting “certified copies of conviction or other
competent proof … before sentencing.” Wideman,
206 Wis. 2d at
95 (citation omitted). Burton contends that the State’s proof is
insufficient when measured against the certified Wisconsin DOT driving record
confirming the 2007 OWI as his second offense.
The State counters that the record contains a Colorado
arrest history report, and also contains a certified driver history from Colorado. The State asserts that it has met its burden
¶7 At sentencing, Burton
acknowledged that the State had filed a certified copy of Burton’s
driving record. On appeal, he contends
the State was required to do more to offset the impact of the DOT record. He asserts that the State should have offered
certified copies of each individual judgment of conviction and copies of the
statutes violated. Burton did not make this argument to the
circuit court and cannot now pursue it on appeal. See
v. Ehly, 93 Wis.
2d 433, 443, 287 N.W.2d 140 (1980).
¶8 The central question presented by Burton’s
appeal is whether the Colorado
convictions were properly counted for sentencing purposes, consistent with Wis. Stat. § 343.307. This involves the interpretation and
application of statutes to undisputed facts, which are questions of law that we
review independently of the trial court’s determinations. See White, 177 Wis. 2d at 124.
¶9 In Wisconsin,
prior OWI offenses are counted pursuant to Wis.
Stat. § 343.307. The
relevant portion of the counting statute is as follows:
The court shall count the following to determine the
length of a revocation under s. 343.30(1q)(b) and to determine the penalty
under s. 114.09(2) and s. 346.65(2):
(d) Convictions under the law of
another jurisdiction that prohibits a person from refusing chemical testing or
using a motor vehicle while intoxicated ... with an excess or specified range
of alcohol concentration ... as those or substantially similar terms are used
in that jurisdiction’s laws.
¶10 Here, Burton
was convicted of driving while impaired, which is defined in Colo. Rev. Stat. § 42-4-1301(g) (2008). The final phrase of Wis. Stat. § 343.307(1)(d), which directs the court to
count convictions for driving under the influence “as those or substantially similar terms are used in that jurisdiction’s
laws,” indicates the broad scope of this statute. See
Wis. 2d 836,
¶8. When determining whether to impose
an enhanced penalty, Wisconsin
counts prior offenses committed in states with OWI statutes that differ
significantly from our own. Id.
have rejected the proposition that another state’s law must be “in
conformity” with Wisconsin law in order to be
counted as a prior offense for penalty
enhancement purposes. White, 177 Wis. 2d at 125-26.
¶11 “Substantially similar” simply emphasizes that the out-of-state
statute need only prohibit conduct similar to the list of prohibited conduct in
Wis. Stat. § 343.307. This understanding comports with the policy
choice of our legislature. Counting
offenses committed in other states furthers the purposes of the drunk driving
laws generally. List, 277 Wis. 2d 836, ¶11. “Because the clear policy of [Wisconsin’s drunk
driving laws] is to facilitate the identification of drunken drivers and their
removal from the highways, the statute must be construed to further the
legislative purpose.” State
v. Neitzel, 95 Wis.
2d 191, 193, 289 N.W.2d 828 (1980).
¶12 Applying this broad interpretation and application of the final
phrase in Wis. Stat. § 343.307(1)(d),
and placing it in the context of the public policy supporting our drunk driving
laws, we conclude that Burton’s Colorado convictions were
properly counted. Colorado’s driving while impaired statute indicates
that he was convicted for the operation of a motor vehicle when, due to the
consumption of alcohol, his ability to operate the motor vehicle was impaired. See
Colo. Rev. Stat. § 42-4-1301(g) (2008).
This prohibited conduct is similar to
the type listed in § 343.307(1)(d) (permitting the consideration of convictions
under an out-of-state law that prohibits a person from operating while under
the influence of an intoxicant “to a degree that renders the person incapable
of safely driving”).
¶13 Because the State met its evidentiary burden of presenting
competent proof of the three Colorado violations, and because the circuit court
properly counted the Colorado offenses of driving while impaired, the sentence
enhancement for a fourth OWI offense was appropriate. We affirm.
Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.