State v. Neill

2019 WI App 4, 922 N.W.2d 861, 385 Wis. 2d 471
CourtCourt of Appeals of Wisconsin
DecidedDecember 4, 2018
DocketAppeal No. 2018AP75-CR
StatusPublished
Cited by1 cases

This text of 2019 WI App 4 (State v. Neill) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Neill, 2019 WI App 4, 922 N.W.2d 861, 385 Wis. 2d 471 (Wis. Ct. App. 2018).

Opinions

BRASH, J.

*473¶1 Charles L. Neill, IV, appeals from his judgment of conviction and an order denying his motion for postconviction relief relating to his conviction for operating a motor vehicle while under the influence of an intoxicant (OWI) as a third offense. Two penalty enhancers applied to Neill's offense: (1) committing this crime while driving with a minor under the age of sixteen in the vehicle, pursuant to WIS. STAT. § 346.65(2)(f)2. (2015-16)1 ; and (2) committing this crime with a blood alcohol concentration of 0.25 or above, pursuant to WIS. STAT. § 346.65(2)(g)3.

¶2 Neill argues that at sentencing, the trial court incorrectly interpreted that statute and thus *474erred in calculating the minimum fine after taking the penalty enhancers into consideration. Therefore, he requests a sentence modification reducing the fine that was imposed by the trial court. The State argues that although the statute is ambiguous regarding how to calculate the minimum fine when both penalty enhancers apply, the trial court properly interpreted the statute and assessed the correct minimum fine.

¶3 We reject Neill's interpretation of the statute and calculation of the minimum fine that may be imposed. We also reject the State's contention that the relevant *863subdivisions of WIS. STAT. § 346.65(2) are ambiguous. Rather, we conclude that a plain reading of the statute supports the calculation of the trial court. We therefore affirm.

BACKGROUND

¶4 On July 2, 2016, Milwaukee County law enforcement officers were advised of a minivan driving recklessly. A 911 caller had observed the minivan in a Subway drive-thru where the driver appeared to be sleeping. The caller reported the incident, along with the license plate number of the minivan. The caller then followed the minivan after the driver woke up and began driving; he observed the minivan "driving all over the road" and stated that it had nearly struck several cars. At one point, the driver of the minivan got out of his vehicle and threw a beer bottle at the 911 caller's vehicle.

¶5 Officer John Finco attempted to stop the minivan in Oak Creek. The minivan did not immediately stop, instead continuing to travel at low speeds. When the minivan finally stopped and the officer made contact with the driver, later identified as Neill, he *475observed that Neill was extremely confused. The officer also detected the odor of alcohol. Neill fumbled through his wallet looking for his driver's license and performed poorly on field sobriety tests. The officer believed that Neill was intoxicated.

¶6 Another officer assisting with the stop observed a small child, later determined to be one year old, in the backseat of the minivan. The child was in a car seat, but the shoulder straps were not fastened. Officers also recovered an open bottle of Bud Light between the child's car seat and the front seat, as well as a six pack-with four bottles of Bud Light remaining-in the passenger seat.

¶7 The officers transported Neill to the hospital, where a blood draw revealed a blood alcohol concentration (BAC) of 0.353. The officers also checked the records of the Wisconsin Department of Transportation and discovered that Neill had two prior OWI offenses.

¶8 Neill was charged with his third OWI offense along with penalty enhancers for having a minor in the vehicle and having an excessive BAC.

¶9 Neill pled guilty. The trial court imposed and stayed a prison sentence of fifteen months of initial confinement and nine months of extended supervision, and placed Neill on probation for three years. As a condition of probation, the court imposed six months in jail.

¶10 The trial court also imposed a fine of $4800. This fine aligned with the State's proposition that the minimum fine of $600 for an OWI-third offense is doubled when a minor is in the vehicle at the time of the offense, for a new minimum base fine of $1200. That new base fine is then quadrupled by the enhancer *476for having an excessive BAC, for a total minimum fine of $4800.

¶11 Neill argued that only one penalty enhancer-the enhancer for an excessive BAC-should be applied, which would quadruple the $600 base fine for an OWI-third offense, for a total minimum fine of $2400. However, the court maintained that the new minimum base fine for an OWI-third offense with a minor in the vehicle is $1200, which is then multiplied by four for the excessive BAC penalty enhancer.

¶12 Neill filed a postconviction motion arguing that the trial court's calculation was incorrect. He asserted that there is nothing in the statutes that indicates that increases in the base fine for the penalty enhancers are to be multiplied by each other. Thus, Neill argued that the starting point for calculating the fine for each enhancer is $600, not $1200.

*864¶13 The trial court denied Neill's motion. The court, which had initially categorized having a minor in the vehicle as a separate and distinct offense, recognized that it was actually a penalty enhancer. Nevertheless, the court was not persuaded by Neill's alternative calculation, pointing out that Neill had provided no authority or legislative history in support of his position. In fact, the court noted that its interpretation and calculation were more "consistent with the general trend towards harsher mandatory minimum sentences" for OWI offenses. This appeal follows.

DISCUSSION

¶14 Neill's argument requires that we interpret WIS. STAT. § 346.65(2), the statute describing the penalties for OWI offenses. "Statutory interpretation presents *477a question of law that we review independently[.]" Roberts v. T.H.E. Ins. Co. , 2016 WI 20, ¶19, 367 Wis.2d 386, 879 N.W.2d 492. Our analysis "begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry." State ex rel. Kalal v. Circuit Court for Dane Cty. , 2004 WI 58, ¶45, 271 Wis.2d 633, 681 N.W.2d 110 (citation omitted).

¶15 "Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." Id.

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Related

State v. Charles L. Neill, IV
2020 WI 15 (Wisconsin Supreme Court, 2020)

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Bluebook (online)
2019 WI App 4, 922 N.W.2d 861, 385 Wis. 2d 471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-neill-wisctapp-2018.