State v. Rodolfo Sanchez Mora

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 24, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP2008-CR Cir. Ct. No. 2018CT1371

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RODOLFO SANCHEZ MORA,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Racine County:
ROBERT S. REPISCHAK, Judge. Reversed.

¶1 DAVIS, J.1 What appears at first blush as a simple conviction for
operating a commercial motor vehicle2 (CMV) without the required state-issued

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version.
No. 2019AP2008-CR

license in fact involves a more complicated (and as far as we can determine,
unaddressed) question lying at the intersection of state and federal licensing
requirements. Wisconsin law requires that Wisconsin residents wishing to drive a
CMV in Wisconsin have a valid Wisconsin commercial driver’s license3 (CDL).
WIS. STAT. § 343.05(2)(a)1. “Resident” under the Wisconsin statute is a defined
term: “an adult whose one home and customary and principal residence, to which
the person has the intention of returning whenever he or she is absent, is in this
state.” WIS. STAT. § 343.01(2)(g).

¶2 Our legislature has also declared, however, that Wisconsin “assents
to” federal law governing the licensure of commercial drivers under “the federal
commercial motor vehicle safety act, 49 U.S.C. [§] 31301 to 31317 and the
regulations adopted under that act.” WIS. STAT. § 343.02(1), (2). The
Commercial Motor Vehicle Safety Act (CMVSA) conditions federal highway
funding to states, like Wisconsin, that assent to be so bound. The CMVSA
provides that only those persons who are citizens or permanent residents of the
United States can obtain a state-issued CDL. This means that those who are here
from Mexico on an employment authorization card (temporary work permit) can,
and indeed must, rely exclusively on their Mexican CDL. This demarcation stems
from a perceived need to streamline licensing, with the goal being that no one

2
A “commercial motor vehicle” is a transport vehicle that is above a certain weight, is
designed to transport sixteen or more passengers, and/or transports hazardous materials. WIS.
STAT. § 340.01(8); see also 49 C.F.R. § 383.5 (2019) (the analogous definition under controlling
federal regulations).
3
A “commercial driver license” is “a license issued to a person by [the state of
Wisconsin] or another jurisdiction that is in accordance with the requirements of [the Commercial
Motor Vehicle Safety Act], or by Canada or Mexico, and that authorizes the licensee to operate
certain commercial motor vehicles.” WIS. STAT. § 340.01(7m); see also 49 C.F.R. § 383.5.

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should have more than one license meeting the federal requirements. Nonetheless,
when a truck driver (or other CMV operator) here on a temporary work permit
also meets the definition of a resident under state law, the state and federal
schemes potentially come into conflict.

¶3 Rodolfo Sanchez Mora became entangled in this potential conflict
when he was cited for driving without a Wisconsin CDL. He is a commercial
truck driver who has lived in Wisconsin on a full-time basis for a number of years
under a temporary work permit that he has continuously renewed. Mora holds a
Mexican CDL; at one point, he also held a Wisconsin CDL, but the Wisconsin
Department of Motor Vehicles (DMV) required that he surrender it in keeping
with Wisconsin’s efforts to remain compliant with the CMVSA and its “single
license” policy. This frames the issue before us. The Wisconsin statute on its face
could be read as requiring Mora to have a Wisconsin CDL, because he appears to
qualify as a Wisconsin resident under the statute. But the express terms of the
CMVSA, which Wisconsin has “assented to” in order to maintain eligibility for
federal highway funds, requires that he have a Mexican CDL—and only a
Mexican CDL.

¶4 The trial court concluded that Mora is a state resident and must
therefore have a Wisconsin CDL to operate a commercial motor vehicle. That
conclusion would likely hold if the only relevant authority were the definition in
the state statute, but it is not. We find that Federal Motor Carrier Safety
Administration (FMCSA)4 regulations and guidance preclude Mexican citizens

4
The FMCSA is the agency within the United States Department of Transportation
responsible for CDL regulations.

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holding a temporary work permit from being considered Wisconsin residents for
CDL purposes. Instead, those Mexican citizens must use their Mexican CDL
when operating a CMV. The result is that Mora’s failure to have a Wisconsin
CDL was not a violation of the Wisconsin statute. As Mora was operating a CMV
with a valid Mexican CDL at the time of his citation,5 he was compliant with
Wisconsin law. Consequently, we reverse.

BACKGROUND

¶5 Mora received a citation for operating a CMV without a license—
Wisconsin resident, pursuant to WIS. STAT. § 343.05(2)(a)1. Under that statute, a
Wisconsin resident must obtain a Wisconsin CDL to operate a CMV. Mora
moved to dismiss the charge on the grounds that he is not a resident; therefore, he
need only have a Mexican CDL. See § 343.05(2)(a)2. (requiring a nonresident
operating a CMV in Wisconsin to possess a valid CDL from another jurisdiction
or Mexico).

¶6 The trial court held a hearing on the motion, denied it, and heard
Mora’s motion for reconsideration, which it also denied. Over the course of the
hearings, the parties established the following undisputed facts. Mora is not a
permanent United States resident or United States citizen. Instead, Mora has been
legally present in this country since at least 2015 under a temporary work permit.
Mora’s permit is valid for two years but is renewable; at the first motion hearing,
Mora stated that he planned to renew it. Mora has a regular (i.e., non-CDL)
Wisconsin driver’s license listing an address in Milwaukee, Wisconsin. It is

5
The parties do not dispute that Mora possessed a valid Mexican CDL.

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unclear how long Mora has lived at that address or in Wisconsin, but as of the first
motion hearing, the license itself was over a year old.

¶7 At one point, Mora had a Wisconsin CDL, but in 2017 the
Wisconsin DMV required Mora to surrender it. A DMV letter to Mora states,
“This was done in accordance with Federal Guidelines that prohibit the State from
licensing customers who hold licenses from Canada or Mexico and temporary
work visas.” According to the DMV (referencing guidance on the FMCSA
website), drivers from Canada and Mexico holding temporary work permits are
ineligible for both a “nonresident CDL” (available to certain non-Wisconsin
residents) and a “resident CDL” (required for Wisconsin residents).6 Instead,
those drivers must use their Canadian or Mexican CDL.

¶8 Despite the DMV letter, the trial court held that Mora is a Wisconsin
resident and was not legally permitted to drive a CMV without a Wisconsin CDL.
The court considered the relevant definition of “resident” under WIS. STAT. §
343.01(2)(g) and reasoned that it applied to Mora, given that Mora had been living
in Wisconsin for over a year and planned to remain in the state if his work permit

6
The letter from the DMV (quoting the FMCSA website) uses the phrase “nonresident
CDL,” whereas the relevant regulations and recent FMCSA regulatory guidance use the term
“non-domiciled CDL.” See 49 C.F.R. § 383.5; Commercial Driver’s License Standards,
Requirements, and Penalties; Regulatory Guidance, 84 Fed. Reg. 8464, 8470-71 (Mar. 8, 2019)
(to be codified at 49 C.F.R. pts. 383 and 384). We have not determined when this change of
phrase occurred, but this is immaterial to our decision, as the two phrases are functionally
equivalent. See Amendment to the Memorandum of Understanding Between the Government of
the United States of America and the Government of the United Mexican States Relating to the
Recognition and Validity of Commercial Driver’s Licenses and Licensias Federales de
Conductor 1 (2017), available at https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/intern
ational-programs/79541/2017cdlmousignedenglish_0.pdf (last visited June 16, 2020) (the
amendment to the executive agreement granting licensure reciprocity with Mexico, replacing the
phrase “non-resident” CDL with “non-domiciled” CDL); see infra for a discussion of that
agreement.

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was renewed. Therefore, the resident CDL requirement also applied. See WIS.
STAT. § 343.05(2)(a)1. Since Mora did not have a Wisconsin CDL, the court
found Mora guilty of operating a motor vehicle without a license, first offense.

DISCUSSION

Relevant Law on Commercial Driver’s Licensure

¶9 The Commercial Motor Vehicle Safety Act of 1986 (CMVSA), 49
U.S.C. § 31301 et seq., conditions receipt of certain federal highway funds on state
compliance with the CMVSA and, specifically, with uniform regulatory standards
for the issuance of CDLs. Sec. 31311(a)(12) (2018); see also 49 C.F.R. § 384.101
(2019). In addition, a state must allow any qualified driver with a valid CDL to
operate a CMV in that state. 49 C.F.R. § 384.214. Wisconsin has “assent[ed] to
the provisions” of the CMVSA, agreeing to “implement and enforce that law and
[accompanying] regulations so as to ensure receipt … of any federal highway
aids.” WIS. STAT. § 343.02(2).

¶10 Under the CMVSA, an individual cannot legally operate a CMV
unless the individual has a valid CDL issued by his or her “State or jurisdiction of
domicile” in accordance with the CMVSA and its regulations. 49 C.F.R.
§ 383.23(a)(2). There is an exception for individuals living in a U.S. state or a
foreign jurisdiction that does not license drivers in conformance with FMCSA
regulations. Sec. 383.23(b)(1), (2); see also 49 C.F.R. § 383.5 (defining “non-
domiciled CDL”). Because such individuals cannot obtain a federally-compliant
CDL from their home state or country, they are eligible for a “non-domiciled
CDL.” Sec. 383.23(b)(1), (2). In conformance with the federal scheme,
Wisconsin provides for issuance of non-domiciled CDLs. WIS. STAT. §
343.03(3m).

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¶11 Non-domiciled CDLs are not available to citizens of Mexico and
Canada. This is because pursuant to an executive agreement, Mexican CDLs are
deemed to meet FMCSA regulatory standards (an analogous agreement with
Canada provides the same). Commercial Driver’s License Reciprocity With
Mexico, 57 Fed. Reg. 31,454 (July 16, 1992) (to be codified at 49 C.F.R. pt. 383);
see also 49 C.F.R. § 383.23(b)(1) n.1. The aim of this executive agreement is to
streamline licensure for Mexican drivers operating in the United States.
Commercial Driver’s License Reciprocity With Mexico, 57 Fed. Reg. at 31,454.
Accordingly, Mexican citizens cannot obtain a non-domiciled CDL from any
state; they do not need one, however, because they can simply use their Mexican
CDL. Commercial Driver’s License Reciprocity With Mexico, 57 Fed. Reg. at
31,454-55; see also § 383.23(b)(1) n.1.7

¶12 This leaves the question of whether, under the federal scheme, a
Mexican citizen here on a temporary work permit must ever obtain a domiciled
CDL in order to be legally licensed. Of note, the federal definition of “state of
domicile” contains language mirroring the Wisconsin definition of “resident”; it is
“that State where a person has his/her true, fixed, and permanent home and
principal resident and to which he/she has the intention of returning whenever
he/she is absent.” 49 C.F.R. § 383.5. It is equally important to note, however, that
unlike the Wisconsin statute, FMCSA regulations have further defined which
individuals can be considered domiciled in (or residents of) a state, such that they
are eligible for a domiciled CDL. The permit and licensure regulations require an

7
Wisconsin has recognized this principle; its licensure statute states that “[a] non-
domiciled license may not be issued to a resident of Canada or Mexico.” WIS. STAT.
§ 343.03(3m).

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No. 2019AP2008-CR

applicant to provide “proof of citizenship or lawful permanent residency” to
receive, transfer, or renew a state CDL.8 See, e.g., 49 C.F.R. § 383.71(a)(2)(v),
(b)(9), (c)(6), (d)(5). It follows that the holder of a temporary work permit is not
considered a state resident eligible for a state CDL. Cf. § 383.71(f)(2)(i) (an
applicant may apply for a non-domiciled CDL using a temporary work permit as
documentation, and “[n]o proof of [state] domicile is required”). This distinction
is stated outright in FMCSA regulatory guidance: “A foreign driver holding an
employment authorization document … may obtain a non-domiciled CDL….
[However,] a foreign driver who is in this country on an employment
authorization document [temporary work permit] … may not obtain a resident
CDL since he or she is not ‘domiciled’ in a U.S. State, as defined in § 383.5
(‘State of domicile’).” Commercial Driver’s License Standards, Requirements,
and Penalties; Regulatory Guidance, 84 Fed. Reg. 8464, 8470-71 (Mar. 8, 2019)
(to be codified at 49 C.F.R. pts. 383 and 384) (emphasis added).

¶13 The upshot is that under the CMVSA, Mexican citizens here on a
temporary work permit need not—indeed cannot—obtain any form of CDL,
domiciled or non-domiciled, from the State of Wisconsin. Instead, these
individuals must rely on a Mexican CDL.

Application to Mora’s Judgment of Conviction

¶14 We would normally defer to the trial court’s factual finding that
Mora is a resident under WIS. STAT. § 343.01(2)(g). See Royster-Clark, Inc. v.
Olsen’s Mill, Inc., 2006 WI 46, ¶11, 290 Wis. 2d 264, 714 N.W.2d 530 (the

8
This requirement also applies to applicants for non-domiciled CDLs who live in states
of the United States that do not issue FMCSA-compliant CDLs. 49 C.F.R. § 383.71(f)(1), (2)(i).

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appellate court “defers to the circuit court’s findings of fact unless they are
unsupported by the record and are, therefore, clearly erroneous”). Indeed, if one
looks only to the Wisconsin definition of resident, the trial court’s analysis hardly
seems in error. Given the controlling federal authority discussed above, however,
we hold that the definition of resident in § 343.01(2)(g) must be subject to the
same limitations that the federal regulations have attributed to the definition of
“state of domicile” in 49 C.F.R. § 383.5. This means that Mora cannot be
considered a Wisconsin resident under § 343.01(2)(g) as a matter of law.

¶15 In order to receive federal funding, the State of Wisconsin has
chosen to comply with the CMVSA and all accompanying regulations and
guidance. We see no ambiguity in the federal scheme as it relates to Mexican and
Canadian citizens present in Wisconsin under a temporary work permit. These
individuals are not eligible for a Wisconsin non-domiciled CDL. See 49 C.F.R. §
383.23(b)(1) n.1; WIS. STAT. § 343.03(3m). They are likewise ineligible for a
Wisconsin CDL because they are not Wisconsin residents, which FMCSA
regulations and guidance define as citizens and permanent residents but not those
with temporary work permits. For that latter group it must be legally presumed
that such individuals’ “true, fixed, and permanent home and principal residence”
to which they have “the intention of returning whenever [they are] absent” is not
Wisconsin. See 49 C.F.R. § 383.5. Necessarily, then, any Mexican (or Canadian)
citizen here on a temporary work permit falls within the category of persons who
are both allowed, and required, to exclusively rely on their Mexican (or Canadian)
CDL.

¶16 We therefore hold that WIS. STAT. § 343.05(2)(a)1., the licensure
requirement for residents, is inapplicable to Mora. Instead, § 343.05(2)(a)2.
applies: Mora was required to have in his “immediate possession a valid [CDL]

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issued to [him] in another jurisdiction or Mexico bearing all endorsements
required for the specific class and type of vehicle being operated.” It is undisputed
that Mora held such a license when he received his citation. We therefore reverse
the trial court’s judgment of conviction for operating a motor vehicle without a
license.9

By the Court.—Judgment reversed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

9
We have reached this conclusion as a matter of statutory interpretation; namely, that in
light of federal guidance limiting identical language in 49 C.F.R. § 383.5, the term “resident”
under WIS. STAT. § 343.01(2)(g) cannot include a Mexican citizen living in Wisconsin under a
temporary work permit. For that reason, we have no need to consider whether this result might
also arise from application of some other theory, such as federal preemption or estoppel.

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