COURT OF APPEALS DECISION DATED AND RELEASED September 20, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule
809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
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No. 95-0904-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JEFFREY L. SHEETS,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Walworth County: ROBERT J. KENNEDY, Judge. Affirmed.
NETTESHEIM, J. Jeffrey
L. Sheets appeals from that portion of a judgment of conviction for operating a
motor vehicle while intoxicated (OWI) which ordered the installation of an
ignition interlock device on two vehicles which Sheets owned.[1] Sheets also appeals from a postconviction
order which denied his request for elimination of the provision on the second
vehicle.
Sheets raises two issues
on appeal. First, he contends that
§ 346.65(6)(a), Stats.,
permits a trial court to order installation on only one vehicle owned by a
convicted defendant. We deem this issue
waived because Sheets did not assert this challenge in the trial court. Second, Sheets contends that the trial court
misused its discretion by ordering the installation of interlock devices on two
vehicles. We conclude that the trial
court did not misuse its discretion.
The facts are not in
dispute. Sheets was convicted of OWI as
a repeat offender. At sentencing, the
trial court ordered two vehicles owned by Sheets equipped with ignition
interlock devices.[2] Sheets objected, contending that the cost of
installing the interlock devices on two vehicles would represent an undue
economic strain on him and his family.
However, he never contended that the statute did not permit the court to
order ignition interlock devices on more than one vehicle owned by a convicted
defendant. The court noted the
objection, but did not alter its ruling.
By postconviction
motion, Sheets asked the trial court to eliminate the provision requiring
installation of an ignition interlock device on the second vehicle. In support, Sheets again contended that the
cost of installing the second device would create an undue hardship to
him. However, he again failed to assert
that the statute did not permit the installation of such devices on multiple
vehicles. The trial court denied the
motion without a formal hearing, making the following written notation on the
face of Sheets's motion:
[g]iven the fact that this was the
defendant's third OWI conviction the court on behalf of the public cannot
afford having the defendant have available for easy use a car un-equipped with
an I.I.D. The strain on the public outweighs
the financial strain the defendant alleges.
Later,
the court entered a written order denying Sheets's motion to modify the
judgment.
On appeal, Sheets
contends that § 346.65(6)(a), Stats.,
allows for the installation of an ignition interlock device on only one vehicle
owned by a defendant convicted of OWI.
However, it is clear from the trial court record that Sheets never
raised this issue either at the sentencing or at the postconviction
proceeding. We deem the issue waived.
We thus turn to Sheets's
further contention that the trial court misused its discretion in ordering
ignition interlock devices installed on the two vehicles. The relevant provisions of
§ 346.65(6)(a), Stats.,
provide:
Except as provided in this paragraph, the
court may order a law enforcement officer to seize a motor vehicle, or,
if the motor vehicle is not ordered seized, shall order a law
enforcement officer to equip the motor vehicle with an ignition interlock
device or immobilize any motor vehicle owned by the person whose operating
privilege is revoked ¼. The court shall not order a motor vehicle
equipped with an ignition interlock device or immobilized if that would result
in undue hardship or extreme inconvenience or would endanger the health and
safety of a person.
Id.
(emphasis added).
We begin by making
certain observations about this statutory scheme which the parties do not
address. First, the sentencing court's
authority to order seizure of a motor vehicle is couched in discretionary
terms: “the court may order a law
enforcement officer to seize ¼.” See id. Thus, the court has discretion whether to
order seizure.[3] However, if seizure is not ordered, the
statute then mandates that the trial court order either an ignition interlock
device or immobilization: “or, if the
motor vehicle is not ordered seized, [the court] shall order a law
enforcement officer to equip the motor vehicle with an ignition interlock
device or immobilize any motor vehicle owned by the person ¼.” Id. (emphasis added). Thus, on a threshold basis, installation of
an ignition interlock device or immobilization is mandatory, not discretionary.
In this case, the trial
court did not order seizure of any motor vehicle. Thus, the trial court properly ordered installation of an
ignition interlock device pursuant to § 346.65(6)(a), Stats.[4] However, the final sentence of this
subsection provides that the court shall not order an interlock device or
immobilization “if that would result in undue hardship or extreme inconvenience
or would endanger the health and safety of a person.” Id. It is
this language on which Sheets premises his argument.
Sheets contends that the
trial court erred when it balanced the interests of the public against the financial
strain which the ignition interlock provision caused him. Sheets observes that this sentence of the
statute says nothing of the interests of the public, and thus, he contends that
such consideration is irrelevant to the inquiry. Sheets reasons that if the offender has shown the requisite
hardship or extreme inconvenience, the judicial inquiry is over and the court
cannot order installation of the ignition interlock device. Sheets further contends that since the trial
court acknowledged the requisite hardship on Sheets, the court was duty bound
to lift the installation order as to the second vehicle.
We conclude that
Sheets's analysis of the statute is too simplistic. We acknowledge that the sentence on which Sheets relies does not
expressly state that the interests of the public are a factor for the trial
court to consider when addressing a convicted OWI defendant's claim of hardship
or inconvenience. However, the public
interest is the very reason for the statute's existence. The obvious purpose of the statute is to
protect the public from the hazards represented by convicted drunk drivers who
are once again tempted to take to the roadways.[5] The ignition interlock provision
accomplishes this goal by making a motor vehicle inoperable unless the operator
is legally sober.
We recognize that the
language of § 346.65(6)(a), Stats.,
upon which Sheets relies, says that the court “shall not order” an ignition
interlock device if such results in undue hardship or extreme inconvenience to
a person. However, in construing a
statute, we are required to consider the statute in toto rather than isolated
provisions. See Graziano
v. Town of Long Lake, 191 Wis.2d 813, 822, 530 N.W.2d 55, 58 (Ct. App.
1995). Our primary purpose when
interpreting a statute is to give effect to the legislature's intent. Id. at 818, 530 N.W.2d at
57.
It would be anomalous
for us to hold that a trial court may not consider the statutory goal of the
public's protection when a convicted OWI defendant asks the court to relax the
very sanctions which serve that goal.
Yet this is what Sheets asks us to do.
Here, Sheets stands convicted of three OWI offenses. The prior two convictions occurred in 1990,
within ninety days of each other. In
the present case, Sheets struck a parked vehicle. His blood alcohol concentration was 0.286%, nearly three times
the presumptive legal limit. See
§ 885.235(1)(c), Stats. Except in circumstances of undue hardship or
extreme inconvenience, § 346.65(6)(a), Stats.,
mandates the use of an ignition interlock device in such a case to keep the
repeat offender off the roadways. Functionally,
the statute declares such operators a danger to the public.
Since the primary
purpose of § 346.65(6)(a), Stats.,
is to make vehicles inaccessible to drunken drivers convicted as repeat
offenders, we conclude that it was proper and necessary for the trial court to
consider the public's safety and protection when Sheets asked the court to lift
the ignition interlock device on his second vehicle. That request, if granted, posed the clear risk that Sheets might
once again operate a vehicle while intoxicated. Given Sheets's history, the trial court was unwilling to take
that risk. We see no misuse of
discretion by the trial court as it performed this balancing exercise.
While the use of the
word “shall” is usually considered mandatory, in limited circumstances we are
at liberty to construe the word “shall” as directory, not mandatory, if such is
necessary to achieve the legislative intent.
See Wagner v. State Medical Examining Bd., 181
Wis.2d 633, 643, 511 N.W.2d 874, 879 (1994).
This is such a case. The
interests and safety of the public lie at the foundation of § 346.65(6)(a), Stats.
Sheets's interpretation of the statute would eliminate that
consideration as a relevant factor when an OWI defendant seeks relief from an
ignition installation order. That
interpretation flies in the face of the statutory goal.
We conclude that the
trial court properly balanced the public's need for protection against the risk
posed by making an operable motor vehicle available to Sheets. We affirm the judgment and the
postconviction order.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] Section 340.01(23v), Stats., defines an ignition interlock device as a “device which measures the person's alcohol concentration and which is installed on a vehicle in such a manner that the vehicle will not start if the sample shows that the person has a prohibited alcohol concentration.”
[2] The trial court also ordered that two other inoperable vehicles owned by Sheets be immobilized pursuant to the same statute. Sheets does not challenge this provision of the judgment.
[5] It is obvious that the mere loss of a driver's license does not preclude a driver from again operating a motor vehicle. It is common knowledge that those whose licenses have been suspended or revoked continue to drive. The legislature has addressed this problem by providing escalating penalties to those who engage in such ongoing activity. See generally §§ 343.05(5)(a) and 343.44(2), Stats.