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State v. Sobacki3/9/2000
APPEAL from an order of the circuit court for Dane County: MARYANNE SUMI, Judge. Affirmed.
Theresa Sobacki was arrested in a parking lot of a four-unit apartment complex and charged with operating a motor vehicle while intoxicated (OWI) contrary to Wis. Stat. § 346.63(1)(a) (1997-98). On a motion to dismiss, Sobacki challenged the constitutionality of Wis. Stat. § 346.61, which states the types of parking lots where OWI statutes apply, claiming it violates the Equal Protection Cause. The trial court decided that § 346.61 does not violate the Equal Protection Clause and Sobacki appeals. We conclude the trial court was correct and we therefore affirm.
. Since this appeal concerns a motion to dismiss, we assume the allegations in the complaint are true for the purpose of our review. See Ford v. Kenosha County, 160 Wis. 2d 485, 490, 466 N.W.2d 646 (1991). The pertinent facts in the complaint are as follows. On January 28, 1999, at approximately 12:57 p.m. the City of Madison Police Department received a report that an intoxicated woman at 2217 Cypress Way was in a car and was possibly leaving the area. Officer Meredyth Thompson reported that when she arrived at the scene, Sobacki was inside her car and the car's engine was running. Officer Thompson also observed that Sobacki's gearshift was in drive and Sobacki's foot was on the break. When Officer Thompson made contact with Sobacki, she detected an extremely strong odor of intoxicants on Sobacki's breath and noticed that Sobacki's eyes were bloodshot red and glassy. Officer Thompson asked Sobacki if she had been drinking. Sobacki responded by saying, "Yeah way too much." Officer Thompson asked Sobacki to submit to field sobriety tests but Sobacki refused. Sobacki was subsequently taken to Meriter Park Hospital in order to obtain a blood sample. The results of the test revealed that Sobacki's blood alcohol level was .203.
. The sole issue on appeal is whether Wis. Stat. § 346.61 violates the Equal Protection Clause of the Wisconsin and the United States Constitutions. Section 346.61 provides:
Applicability of sections relating to reckless and drunken driving. In addition to being applicable upon highways, ss . 346.62 to 346.64 are applicable upon all premises held out to the public for use of their motor vehicles, all premises provided by employers to employes for the use of their motor vehicles and all premises provided to tenants of rental housing in buildings of 4 or more units for the use of their motor vehicles, whether such premises are publicly or privately owned and whether or not a fee is charged for the use thereof. Sections 346.62 to 346.64 do not apply to private parking areas at farms or single-family residences.
The constitutionality of a statute is a question of law that we review de novo. State v. McManus, 152 Wis. 2d 113, 129, 447 N.W.2d 654 (1989). Statutes are presumed constitutional and will be upheld unless the party challenging the statute shows that the statute is unconstitutional beyond a reasonable doubt. Id.
. The first task in determining whether Wis. Stat. § 346.61 violates the Equal Protection Clause is determining the level of scrutiny to apply. If the classification in § 346.61 impedes a fundamental right or categorizes people based on a suspect class, we subject the statute to strict scrutiny. Szarzynski v. YMCA, 184 Wis. 2d 875, 886, 517 N.W.2d 135 (1994). If the classification does not involve a fundamental right or suspect class, it will be sustained if there is any rational basis to support it, that is, if the classification is rationally related to a legitimate government purpose. Id. at 886-87.
. The Supreme Court described the rational
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