COURT OF APPEALS DECISION DATED AND RELEASED February 14, 1996 |
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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1949-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DAVID A. KOHL,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Washington County:
RICHARD T. BECKER, Judge. Affirmed.
NETTESHEIM, J. David
A. Kohl appeals from a judgment of conviction for the criminal offense of
operating a motor vehicle while intoxicated pursuant to § 346.63(1)(a), Stats.
Prior to the conviction
in this case, Kohl's operating privileges were administratively suspended
pursuant to § 343.305, Stats.,
based upon a blood alcohol test which indicated that Kohl operated the motor
vehicle with a prohibited blood alcohol concentration. Based on this prior suspension, Kohl
contended that the instant OWI prosecution violated his right against double
jeopardy. The trial court
disagreed. Kohl was eventually
convicted and he appeals.
Kohl relies on DOR
v. Kurth Ranch, 114 S. Ct. 1937 (1994), as support for his double
jeopardy argument. There, the United
States Supreme Court concluded that the imposition of a marijuana tax imposed
after the defendants had been convicted and imprisoned for criminal drug
trafficking was barred by the Double Jeopardy Clause. Id. at 1948.
However, this court recently held that an administrative suspension
pursuant to § 343.305, Stats.,
followed by a prosecution and conviction for OWI growing out of the same
incident does not violate the Double Jeopardy Clause of the Fifth Amendment to
the United States Constitution. State
v. McMaster, No. 95-1149-CR, slip op. at 11 (Wis. Ct. App. Nov. 8,
1995, ordered published Jan. 30, 1996).
In so holding, we distinguished Kurth Ranch by concluding
that the implied consent law is remedial, not punitive, in nature. Id. at 6-7.
McMaster is
the law on the issue which Kohl raises.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.