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State v. Dade5/3/2000
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.
APPEAL from a judgment of the circuit court for Walworth County: JAMES L. CARLSON, Judge.
Affirmed.
. Kenneth L. Dade appeals his fourth conviction for operating a vehicle while intoxicated (OWI). He claims that this is actually his third conviction, not his fourth, because an administrative suspension in Illinois for refusing to take a breathalyzer test was not a "conviction" and, therefore, should not have been counted. He also claims that the trial court erroneously exercised its discretion during sentencing by following a sentencing matrix promulgated by the Second Judicial District, by allowing the State to argue that he fled and eluded when the State had not charged him with that particular crime, and by considering recent legislative action to make a fifth offense of OWI a felony. We reject each argument and affirm.
. Regarding his claim that this is a third, not a fourth, conviction, Dade explains that in Illinois a person who refuses to take a breathalyzer has his or her driver's license administratively suspended. That person then is entitled to an administrative hearing and the suspension is either sustained or rescinded. There is no conviction entered; the refusal hearing is never the subject of court action. Dade posits that this scheme, therefore, is unlike ours in Wisconsin where, if the driver wants a review of an administrative suspension, he or she requests a refusal hearing before a trial court pursuant to Wis. Stat. § 343.305(9)(am)5.c. Dade contends that because Wisconsin's administrative suspension is subject to judicial review, the upholding of the administrative refusal is treated as a "conviction" in Wisconsin. But because there is no similar judicial review in Illinois, an adverse outcome resulting from an administrative hearing cannot be considered a conviction. Thus, since Wis. Stat. § 343.307(1)(d) allows the State to add convictions of foreign jurisdictions so long as they are substantially similar to Wisconsin's, and because the Illinois process is dissimilar, Dade's offense should be considered a third, not a fourth, offense.
. The argument is a nonstarter. We do not agree with Dade that the Illinois process is dissimilar to Wisconsin's under Wis. Stat. § 343.305(9)(am)5.c nor do we even agree that the test is whether the foreign jurisdiction's process is "similar" to Wisconsin's. But rather than get into a long analysis of why Dade is wrong, we need only refer to Wis. Stat. § 343.307(1)(e). The statute reads, in pertinent part, as follows:
(1) The court shall count the following ...:
....
(e) Operating privilege suspensions or revocations under the law of another jurisdiction arising out of a refusal to submit to chemical testing. Id.
It is true that § 343.307(1)(d) concerns "convictions" from other jurisdictions. But para. (1)(e) deals with "suspensions." Under the clear language of the statute, suspensions arising out of the refusal to submit to chemical testing are counted. The statute is silent about whether the process by which a person is suspended for refusing to submit to chemical testing in a foreign jurisdiction must be "similar" to Wisconsin's process. We conclude, therefore, that such a prerequisite does not exist. So, it does not matter whether the Illinois suspension that Dade received should be considered a "conviction." He was suspended for refusing to submit to chemical testing. Under para. (1)(e), it counts.
. Next, Dade claims that the court did not, in fact, exercise its discreti
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