PUBLISHED OPINION
Case No.: 94-1527-CR
†Petition for
review filed.
Complete
Title
of
Case:STATE OF
WISCONSIN,
Plaintiff-Respondent,
v.
RICHARD R. LUDEKING,
Defendant-Appellant.†
Submitted
on Briefs: April 6, 1995
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: June 1, 1995
Opinion
Filed: June
1, 1995
Source
of APPEAL Appeal from a judgment
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Monroe
(If
"Special" JUDGE: Michael
J. McAlpine
so
indicate)
JUDGES: Gartzke,
P.J., Sundby and Vergeront, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the defendant-appellant the
cause was submitted on the briefs of Mark L. Goodman of Osborne &
Goodman, S.C. of Sparta.
Respondent
ATTORNEYSFor the plaintiff-respondent the
cause was submitted on the brief of John Matousek, district attorney of
Monroe County.
|
COURT OF APPEALS DECISION DATED AND RELEASED June
1, 1995 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals pursuant to § 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. 94-1527-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
RICHARD
R. LUDEKING,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Monroe County: MICHAEL J. MCALPINE, Judge. Affirmed.
Before
Gartzke, P.J., Sundby and Vergeront, JJ.
VERGERONT,
J.[1] Richard
Ludeking was charged with third offense operating a motor vehicle while under
the influence of an intoxicant contrary to § 346.63(1)(a), Stats.;[2]
third offense operating a motor vehicle with a prohibited blood alcohol
concentration contrary to § 346.63(1)(b);[3]
and fourth offense operating after revocation of one's license (OAR) as an
habitual traffic offender contrary to § 343.44(1), Stats. He was
convicted of all three offenses.[4] Ludeking appeals the convictions, claiming
that the trial court erred when it admitted evidence of prior OMVWI
convictions.[5] Because we conclude that prior OMVWI
convictions are an element of the offense of driving with a prohibited alcohol
concentration under §§ 346.63(1)(b) and 340.01(46m)(b), Stats., we affirm the convictions.
The
pertinent facts are not in dispute.
Prior to trial, Ludeking filed a motion in limine, seeking to
exclude any reference to his prior convictions for OMVWI, OAR and any other
moving or non-moving traffic offenses.
He also asked that there be no references to the fact that he was being
charged with third offense OMVWI and fourth offense OAR as an habitual traffic
offender.
The
trial court ruled that the State could introduce a record showing that Ludeking
was sent an order of revocation but could not refer to his habitual traffic
offender status except on rebuttal if Ludeking denied knowledge of the
revocation. The court decided the State
could present evidence of Ludeking's two prior OMVWI convictions because, in
the court's view, that was an element of the OMVWI charge under
§ 346.63(1)(b), Stats., and
the State had to prove it beyond a reasonable doubt. In reaching this decision, the court relied on Wis J I—Criminal 2660.1.[6] The State agreed that it did not need to refer
to the fact that the OMVWI charge was the third offense since the State was
permitted to prove the two prior OMVWI convictions, and it agreed that it did
not need to refer to the "fourth offense" or "habitual traffic
offender" in connection with the OAR charge. The court ordered that portions of Ludeking's driving record
abstract be masked to cover up all information except that which it had
specifically ruled was admissible.
Pursuant
to the trial court's ruling, evidence of Ludeking's two prior OMVWI convictions
was presented to the jury. The jury
convicted Ludeking on all three charges.
Ludeking argues that the prior OMVWI convictions are not an element of
the charge of driving with a prohibited alcohol concentration.
A
crime is "conduct which is prohibited by state law and punishable by fine
or imprisonment or both." Section
939.12, Stats. In order to determine the elements of a
crime, we look to the statute prohibiting the conduct. See State v. McAllister, 107
Wis.2d 532, 535, 319 N.W.2d 865, 867 (1982).
Whether the trial court correctly decided that the two prior convictions
were an element of the crime of driving with a prohibited alcohol concentration
depends upon an interpretation of § 346.63(1)(b), Stats. The
construction of a statute when the facts are not disputed presents an issue of
law, which this court reviews de novo, without deference to the trial
court's determination. Tahtinen
v. MSI Ins. Co., 122 Wis.2d 158, 166, 361 N.W.2d 673, 677 (1985).
In
construing a statute, our purpose is to ascertain and give effect to the
legislative intent. State ex rel.
Dieckhoff v. Severson, 145 Wis.2d 180, 189, 426 N.W.2d 71, 73 (Ct. App.
1988). We first look to the language of
the statute and if that is unambiguous, our duty is to give the language its
ordinary meaning. Id. at
190, 426 N.W.2d at 73. Legislative history cannot be used to demonstrate that a
statute, unambiguous on its face, is ambiguous. State v. Martin, 162 Wis.2d 883, 897 n.5, 470
N.W.2d 900, 905 (1991).
Under
§ 346.63(1)(b), Stats., no
person may operate a motor vehicle while "[t]he person has a prohibited
alcohol concentration."
The
plain language of § 340.01(46m)(b), Stats.,
defines "prohibited alcohol concentration" to include two separate
components: (1) percentage of
blood alcohol concentration by weight of alcohol in the person's blood or grams
of alcohol in 210 liters of the person's breath, and (2) number of
prior convictions.[7] A person operating a motor vehicle with a
blood alcohol concentration of 0.08% or more, but less than a blood alcohol
concentration of 0.1%, has not committed a crime unless that person has two
prior convictions.
Ludeking
argues that § 340.01(46m)(b), Stats.,
is ambiguous and therefore we must look to the legislative history. That legislative history, Ludeking contends,
shows that the purpose in adopting it was to reduce the prohibited blood
alcohol concentration for third and subsequent offenders. The legislative history does not show,
according to Ludeking, whether the prior convictions of a third or subsequent
offender are an element of the crime.
According to Ludeking, the lack of legislative history on this point
means that we cannot conclude the legislature intended the prior convictions to
be an element of the crime. The
legislative history is irrelevant. The
statute is unambiguous. The only
reasonable construction of § 340.01(46m)(b) makes the two or more prior
convictions an element of the crime of driving with a blood alcohol
concentration of 0.08% or more.
Ludeking
also contends that evidence of his prior convictions is similar to a criminal
defendant's prior record when charged as a repeater under § 939.62, Stats.[8] In Mulkovich v. State, 73
Wis.2d 464, 243 N.W.2d 198 (1976), the court held that it was error to read the
repeater charge to a jury because the repeater charge is relevant only to the
imposition of sentence after a jury has made a finding of guilt. Id. at 468, 243 N.W.2d at
201. Section 340.01(46m)(b), Stats., in contrast, defines the crime
so that the jury can make a finding on guilt.
This distinction was discussed in more detail in McAllister. There the court held that prior revocations
under § 346.65(2), Stats.,
are not an element of the crime of driving while under the influence in
violation of § 346.63(1), Stats.,[9]
because the graduated penalty structure in § 346.65(2) goes only to the
question of punishment, not to "the nature of the substantive
offense."[10] McAllister, 107 Wis.2d at 535,
319 N.W.2d at 867. Section
340.01(46m)(b) is not a repeater statute or penalty enhancer. It does not define the penalty for violating
§ 346.63(1)(b). It defines the
element of § 346.63(1)(b), "prohibited alcohol
concentration." It defines part of
the offense itself.
We
recognize the potential for prejudice any time evidence of a defendant's prior
record is presented to a jury. Ludeking
stresses this in his brief. However,
Ludeking's prior convictions are nevertheless elements of the crime under
§§ 346.63(1)(b) and 340.01(46m)(b), Stats. Wis J
I—Criminal 2660.1 provides that at the request of the defendant the
following cautionary instruction should be given: "Evidence has been received that the defendant had prior
convictions, suspensions, or revocations.
This evidence was received as relevant to the status of the defendant's
driving record, which is an issue in this case. It must not be used for any other purpose." The trial court gave this instruction. There is a presumption that a jury follows
the instructions given to it. State
v. Truax, 151 Wis.2d 354, 362, 444 N.W.2d 432, 436 (Ct. App. 1989).
Because
two or more prior convictions are an element of the offense of driving with a
prohibited alcohol concentration in violation of §§ 346.63(1)(b) and
340.01(46m)(b), Stats., the trial
court properly admitted evidence of Ludeking's two prior convictions.
By
the Court.—Judgment affirmed.
[2] Section 346.63, Stats., provides in part:
(1) No person may
drive or operate a motor vehicle while:
(a) Under the
influence of an intoxicant or a controlled substance or a combination of an
intoxicant and a controlled substance, under the influence of any other drug to
a degree which renders him or her incapable of safely driving, or under the
combined influence of an intoxicant and any other drug to a degree which
renders him or her incapable of safely driving; or
(b) The person has
a prohibited alcohol concentration.
[3] "Prohibited alcohol concentration"
is defined in § 340.01(46m), Stats.,
as:
(a) If the person has one or no prior
convictions, suspensions or revocations, as counted under s. 343.307(1), a
blood alcohol concentration of 0.1% or more by weight of alcohol in the
person's blood or 0.1 grams or more of alcohol in 210 liters of the person's
breath.
(b) If the person has 2 or more prior
convictions, suspensions or revocations, as counted under s. 343.307(1), a
blood alcohol concentration of 0.08% or more by weight of alcohol in the
person's blood or 0.08 grams or more of alcohol in 210 liters of the person's
breath.
[4] Section 346.63(1)(c), Stats., provides that if a person is charged and found guilty
under both § 346.63(1)(a) and (b), Stats.,
for acts arising out of the same incident or occurrence, there shall be a
single conviction for purposes of sentencing and counting convictions under
certain other statutes. For this
reason, although Ludeking was found guilty of charges under both
§ 346.63(1)(a) and (b), there was only one conviction under §
346.63(1).
[6] Wis J
I—Criminal 2660.1 provides in part:
OPERATING A MOTOR VEHICLE WITH A PROHIBITED ALCOHOL
CONCENTRATION—CRIMINAL OFFENSE — 0.08%/0.08 GRAMS OR MORE — § 346.63(1)(b)
Section
346.63(1)(b) of the Wisconsin Statutes is violated by one who drives or
operates a motor vehicle on a highway while that person has a prohibited
alcohol concentration.
Before you may find
the defendant guilty of this offense, the State must prove by evidence which
satisfies you beyond a reasonable doubt that the following three elements were
present.
The first element
requires that the defendant [drove or operated a motor vehicle on a highway].
The second element
requires that at the time the defendant (drove) (operated) a motor vehicle, he
had two or more convictions, suspensions, or revocations, as counted under §
343.307(1).
AT THE REQUEST OF
THE DEFENDANT, THE FOLLOWING CAUTIONARY INSTRUCTION SHOULD BE GIVEN:
[Evidence has been
received that the defendant had prior convictions, suspensions, or
revocations. This evidence was received
as relevant to the status of the defendant's driving record, which is an issue
in this case. It must not be used for
any other purpose.]
The third element
requires that the defendant had a prohibited alcohol concentration at the time
he (drove) (operated) the motor vehicle.
"Prohibited
alcohol concentration" means
[.08 grams or more
of alcohol in 210 liters of the person's breath.]
[.08% or more by
weight of alcohol in the person's blood].
(Footnotes omitted.)
[7] We refer in this opinion to "prior
convictions" recognizing that § 340.01(46m)(b), Stats., also covers prior suspensions
and revocations.
[8] Section 939.62, Stats., provides that if the actor is a repeater, the maximum
term of imprisonment prescribed by law for that crime may be increased
according to a graduated scale.