COURT OF APPEALS DECISION DATED AND FILED June 8, 2011 A. John Voelker Acting Clerk of Court of Appeals	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.�

Appeal No.�	2010AP3112-CR	Cir. Ct. No.� 2009CT157
STATE OF WISCONSIN�			IN COURT OF APPEALS
			DISTRICT II
State of Wisconsin, ��������� Plaintiff-Respondent, ���� v. Francis A. Malsbury, ��������� Defendant-Appellant.

����������� APPEAL from a judgment of the circuit court for Walworth County:� robert j. kennedy, Judge.� Affirmed.�

�1������� REILLY, J.[1]�� Francis A. Malsbury appeals from a judgment of conviction for second-offense operating while intoxicated (OWI) pursuant to Wis. Stat. � 346.63(1)(a).� Malsbury argues that his conviction should actually be for a first-offense OWI, as the prior conviction was for reckless driving in the state of Washington.� The State counters that because Malsbury�s Washington conviction was originally charged as driving under the influence (DUI) and later amended to reckless driving with OWI-like penalties, the conviction counts for purposes of Wisconsin�s OWI laws.� We agree with the State and affirm Malsbury�s conviction.

FACTS

�2������� In 1999, Malsbury was charged with DUI in the state of Washington.� Malsbury pled not guilty, and the DUI charge was later amended to reckless driving.� Malsbury was subsequently convicted of reckless driving after he pled guilty to the amended charge.� Malsbury�s sentence included two years of probation, a fine, and a suspended jail sentence.� Additionally, Malsbury was ordered to undergo an alcohol assessment, attend a victim impact panel, and attend alcohol information school.

�3������� In 2009, a Wisconsin municipal court convicted Malsbury of OWI.� After the Wisconsin Department of Transportation consulted Malsbury�s driving record and discovered his Washington conviction, the State vacated the municipal court conviction and filed an amended complaint charging Malsbury with a second-offense OWI.[2]� The State argued that Malsbury�s reckless driving conviction counted as a previous OWI conviction because in Washington, a conviction for reckless driving that was originally charged as a DUI counts as a DUI conviction for sentencing enhancement purposes.

�4������� The circuit court ruled that the Washington conviction counted as a prior OWI offense in Wisconsin because Washington law classifies the conviction as a prior offense for sentencing purposes under its DUI law.� Malsbury was subsequently found guilty of a second-offense OWI pursuant to Wis. Stat. � 346.63(1)(a).� He appeals.

STANDARD OF REVIEW

�5������� This appeal requires us to interpret Wisconsin and Washington statutes.� The interpretation and application of a statute is a question of law subject to de novo review.� WIREdata, Inc. v. Village of Sussex, 2008 WI 69, �45, 310 Wis. 2d 397, 751 N.W.2d 736.

DISCUSSION

�6������� The issue in this appeal is whether Malsbury�s reckless driving conviction in Washington counts as a previous conviction for purposes of Wisconsin�s OWI law.� Wisconsin has an accelerated penalty structure for OWI offenses such that each successive OWI conviction results in greater penalties.� Wis. Stat. � 346.65(2).� When determining the penalty for OWI, Wisconsin courts count:

Convictions under the law of another jurisdiction that prohibits a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction�s laws.

Wis. Stat. � 343.307(1)(d).�

�7������� We hold that Malsbury�s Washington reckless driving conviction counts as a prior conviction for purposes of Wisconsin�s accelerated OWI penalty structure.� Our decision is guided by Washington�s DUI penalty structure, which counts a conviction for reckless driving as a �prior offense� when the conviction was originally charged as DUI.� See Wash. Rev. Code Ann.
� 46.61.5055(14)(v) (West 2011).� Malsbury�s sentence has all the characteristics of an OWI-type conviction:� he was ordered to undergo an alcohol assessment, attend a victim impact panel, and attend alcohol information school.� Finally, for purposes of OWI sentence enhancement, Wisconsin counts �[c]onvictions under the law of another jurisdiction that prohibits a person from � using a motor vehicle while intoxicated � [or] with an excess or specified range of alcohol concentration.�� Wis. Stat. � 343.307(1)(d).

�8������� Our holding is consistent with the purpose of Wisconsin�s OWI laws.� As the Wisconsin Supreme Court stated, Wis. Stat. � 343.307(1)(d) was meant to �apply broadly to prior out-of-state conduct.�� State v. Carter, 2010 WI 132, �42, 330 Wis. 2d 1, 794 N.W.2d 213.� We will construe the OWI laws �to facilitate the identification of drunken drivers and their removal from the highways.�� State v. Neitzel, 95 Wis. 2d 191, 193, 289 N.W.2d 828 (1980).� Additionally, �the purpose of general repeater statutes is to increase the punishment of persons who fail to learn to respect the law after suffering the initial penalties and embarrassment of conviction.�� State v. Banks, 105 Wis. 2d 32, 49, 313 N.W.2d 67 (1981).� Counting Malsbury�s reckless driving conviction in Washington as a previous conviction furthers the goal of Wisconsin�s OWI laws.�

CONCLUSION

�9������� Malsbury�s conviction for a second-offense OWI pursuant to Wis. Stat. � 346.63(1)(a) is affirmed.�

����������� By the Court.�Judgment affirmed.�

����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.�

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[1] This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2)(f) (2009-10).� All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.

[2]  The Department of Transportation originally notified the Walworth County District Attorney�s office that Malsbury was convicted in Washington for failure to take a test.� The State later conceded that this information was erroneous, but continued to prosecute Malsbury for a second-offense OWI.