State v. Evan J. Schnoll

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.
April 28, 2022
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. 2021AP1119-CR Cir. Ct. No. 2020CT78

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

EVAN J. SCHNOLL,

DEFENDANT-APPELLANT.

APPEAL from order of the circuit court for Dodge County:
BRIAN A. PFITZINGER, Judge. Affirmed and cause remanded for further
proceedings.

¶1 KLOPPENBURG, J.1 Evan Schnoll was charged with operating a
motor vehicle while under the influence of an intoxicant (OWI) and operating a
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise stated.
No. 2021AP1119-CR

motor vehicle with a prohibited alcohol concentration (PAC) after his arrest in
January 2020 when he drove his car into a ditch. Each violation was charged as a
second offense based on the allegation that a prior California conviction counts as
a prior offense under Wisconsin’s “OWI/PAC penalty enhancement statute[s].”
See State v. Braunschweig, 2018 WI 113, ¶¶15-17, 384 Wis. 2d 742, 921 N.W.2d
199 (referring to Wisconsin’s “system of increased penalties depending on the
number of [prior OWI-related] offenses” as the “OWI/PAC penalty enhancement
statute[s]”). Schnoll filed a “motion to determine [the] validity of” the California
conviction as a prior offense under Wisconsin law, and the circuit court
determined that the conviction counts as a prior offense in this case. The effect of
the court’s order allowing Schnoll’s California conviction to be counted as a prior
offense, is to increase his current OWI and PAC charges from first offense civil
forfeitures to second offense criminal misdemeanors. See WIS. STAT.
§ 346.65(2)(am)1. (first offense, civil forfeiture) and § 346.65(2)(am)2. (second
offense, misdemeanor). Schnoll filed a petition for leave to appeal, which this
court granted.

¶2 The gravamen of Schnoll’s appeal is that the California conviction
does not count as a prior offense because the California statute under which he
was convicted does not prohibit driving while intoxicated or with an excessive
blood alcohol content or otherwise require the involvement of alcohol. Schnoll
also argues that the California conviction does not count because it has been
purged from his California record. Finally, Schnoll argues that inaccuracies in his
Wisconsin Department of Transportation driving record regarding the California
conviction render that record unreliable. I reject Schnoll’s arguments and affirm.

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No. 2021AP1119-CR

BACKGROUND

¶3 The following facts are undisputed.

¶4 Schnoll was arrested in California on November 17, 2010, and
subsequently charged with violating CAL. VEH. CODE § 23152(a) and (b) (West
2010), which prohibit driving a vehicle while under the influence of alcohol and
driving a vehicle with 0.08 percent or more, by weight, of alcohol in a person’s
blood, respectively.2 CAL. VEH. CODE § 23152(a) and (b). The complaint was
later amended to add a third count of violating CAL. VEH. CODE § 23103.5(a) “as a
substitute for” the CAL. VEH. CODE § 23152 offenses. CAL. VEH. CODE
§ 23103.5(a). A CAL. VEH. CODE § 23103.5 charge is commonly referred to in
California as a “wet reckless” offense. See People v. Claire, 229 Cal. App. 3d
647, 650 n.2, 280 Cal. Rptr. 269 (Cal. Ct. App. 1991) (adopting “wet reckless” as
the terminology to refer to a plea under CAL. VEH. CODE § 23103.5).3 In February
2011, Schnoll entered a plea of nolo contendere to the “wet reckless” charge and
counts one and two were dismissed.4

2
All references to the California Vehicle Code are to the 2010 version unless otherwise
noted.
3
CALIFORNIA VEH. CODE § 23103.5 allows the amendment of a drunk driving charge
under CAL. VEH. CODE § 23152 to a reckless driving charge. While both offenses are
misdemeanors as a first offense, a reckless driving conviction carries fewer and less severe
penalties than a drunk driving conviction. See CAL. VEH. CODE §§ 23536 (penalties for first
violation of CAL. VEH. CODE § 23152) and 23103.5.
4
A plea of nolo contendere “constitutes an implied confession of guilt for the purposes
of the case to support a judgment of conviction and in that respect is equivalent to a plea of
guilty.” Lee v. Wisconsin State Bd. of Dental Exam’rs, 29 Wis. 2d 330, 334, 139 N.W.2d 61
(1966).

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No. 2021AP1119-CR

¶5 According to the criminal complaint giving rise to the current case,
in January 2020 Scholl was arrested for operating a motor vehicle while
intoxicated after driving his car into a ditch. Schnoll consented to an evidentiary
chemical test of his blood, which revealed a blood alcohol content (BAC) of
0.204.

¶6 Schnoll was charged with second-offense operating a motor vehicle
while under the influence, WIS. STAT. § 346.63(1)(a), and second-offense
operating with a prohibited alcohol concentration, § 346.63(1)(b). Each count was
charged as a second offense due to the prior California “wet reckless” conviction.5
Schnoll pled not guilty to these charges.

¶7 Schnoll filed a “motion to determine [the] validity of” the California
“wet reckless” conviction as a prior offense, arguing that his “prior BAC
conviction reported from California should not be counted as a prior [OWI]
offense in this action.”

¶8 The circuit court issued an order determining that Schnoll’s
“California ‘Wet Reckless’ driving conviction counts as a prior conviction for
OWI counting purposes in Wisconsin, pursuant to WIS. STAT. § 343.307(1).”

¶9 This court granted Schnoll’s petition for leave to appeal the circuit
court’s nonfinal order.

5
The criminal complaint, the circuit court order, and the State in its briefing refer to a
“2010” California conviction. As stated, in the California case Schnoll was arrested in November
2010 and convicted in February 2011. This discrepancy does not matter to the analysis of the
issues on appeal.

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No. 2021AP1119-CR

DISCUSSION

¶10 Schnoll challenges the circuit’s order allowing his California “wet
reckless” conviction to be counted as a prior offense. I first present the pertinent
standard of review and principles governing statutory interpretation, and the
statutory “system of increased penalties” for repeat OWI-related offenses in
Wisconsin. See Braunschweig, 384 Wis. 2d 742, ¶15 (referring to Wisconsin’s
statutory “system of increased penalties” for repeat OWI-related offenses). I next
address the California statutes at issue and explain why their plain language and
California case law interpreting them dictate that Schnoll’s “wet reckless”
conviction is properly counted as a prior offense under Wisconsin law. I lastly
address and reject Schnoll’s arguments to the contrary.

I. Standard of Review and Principles of Statutory Interpretation

¶11 The issue of whether the California “wet reckless” conviction is
properly counted as a prior offense involves the interpretation and application of
statutes to undisputed facts, which are questions of law that this court reviews
independently. See id., ¶¶2, 9.

¶12 Wisconsin courts conduct a plain meaning analysis that begins with
the statutory language. See State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004
WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110 (“Judicial deference to the policy
choices enacted into law by the legislature requires that statutory interpretation
focus primarily on the language of the statute. We assume that the legislature’s
intent is expressed in the statutory language.”). The words used by the legislature
are to be given their “common, ordinary, and accepted meaning,” id., ¶45, and
“that proper grammar and usage would assign them,” State v. Arberry, 2018 WI 7,
¶19, 379 Wis. 2d 254, 905 N.W.2d 832. In addition, statutory language must be

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No. 2021AP1119-CR

interpreted “in the context in which it is used; not in isolation but as part of a
whole; in relation to the language of surrounding or closely-related statutes; and
reasonably, to avoid absurd or unreasonable results.” Kalal, 271 Wis. 2d 633, ¶46.
“Previous cases construing a statute also become a part of our understanding of a
statute’s plain meaning.” Meyers v. Bayer AG, 2007 WI 99, ¶23, 303 Wis. 2d
295, 735 N.W.2d 448. “‘If this process of analysis yields a plain, clear statutory
meaning, then there is no ambiguity, and the statute is applied according to this
ascertainment of its meaning.’” Kalal, 271 Wis. 2d 633, ¶46 (quoting Bruno v.
Milwaukee Cnty., 2003 WI 28, ¶20, 260 Wis. 2d 633, 660 N.W.2d 656).

II. Wisconsin System of Increased Penalties for
Repeat OWI-Related Offenses

¶13 Under Wisconsin’s penalty scheme for OWI-related convictions, the
severity of a defendant’s penalty is based on the number of prior OWI-related
offenses. State v. Verhagen, 2013 WI App 16, ¶18, 346 Wis. 2d 196, 827 N.W.2d
891; WIS. STAT. § 346.65(2)(am)2.-7.

¶14 The penalty for a second-offense OWI is expressed as follows: “if
the number of convictions under ss. 940.09(1) and 940.25 in the person’s lifetime,
plus the total number of suspensions, revocations, and other convictions counted
under s. 343.307(1) within a 10-year period, equals 2,” the individual shall be
fined between $350 and $1,100, and imprisoned between five days and six
months. WIS. STAT. § 346.65(2)(am)2. (emphasis added).

¶15 WISCONSIN STAT. § 343.307(1) tells a court what it must count as a
prior conviction when applying the increased penalty structure. Relevant here,
§ 343.307(1)(d) states that the court must count the following when determining
the applicable penalty:

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No. 2021AP1119-CR

(d) Convictions under the law of another
jurisdiction that prohibits a person from refusing chemical
testing or using a motor vehicle while intoxicated or under
the influence of a controlled substance or controlled
substance analog, or a combination thereof; with an excess
or specified range of alcohol concentration; while under the
influence of any drug to a degree that renders the person
incapable of safely driving; or while having a detectable
amount of a restricted controlled substance in his or her
blood, as those or substantially similar terms are used in
that jurisdiction’s laws.

WIS. STAT. § 343.307(1)(d) (emphasis added).

¶16 The word “convictions” in WIS. STAT. § 343.307(1)(d) is defined as
“an unvacated adjudication of guilt, or a determination that a person has violated
or failed to comply with the law in a court of original jurisdiction or an authorized
administrative tribunal ....” WIS. STAT. § 340.01(9r).6 The “law of another
jurisdiction” in § 343.307(1)(d) refers to those laws that prohibit “both operating
while intoxicated and operating when tests show a prohibited alcohol
concentration in excess of that permitted by statute.” State v. Carter, 2010 WI
132, ¶30, 330 Wis. 2d 1, 794 N.W.2d 213.

¶17 As to the last clause of WIS. STAT. § 343.307(1)(d), “as those or
substantially similar terms are used in that jurisdiction’s laws,” the court in State
v. Puchacz, 2010 WI App 30, 323 Wis. 2d 741, 780 N.W.2d 536 explained:

The final phrase of WIS. STAT. § 343.307(1)(d) …
indicates the broad scope of para. (d). When determining a
penalty, Wisconsin even counts prior offenses committed in
states with OWI statutes that differ significantly from our
own. “Substantially similar” simply emphasizes that the
out-of-state statute need only prohibit conduct similar to

6
“The definition of the word ‘conviction’ in WIS. STAT. § 340.01(9r) applies to the word
‘convictions’ in [WIS. STAT.] § 343.307(1)(d).” State v. Carter, 2010 WI 132, ¶43, 330 Wis. 2d
1, 794 N.W.2d 213.

7
No. 2021AP1119-CR

the list of prohibited conduct in § 343.307(1)(d). This
understanding comports with the policy choice of our
legislature. Counting offenses committed in other states
effectuates the purposes of the drunk driving laws
generally.

Id., ¶12 (internal citations omitted) (emphasis added).

III. Pertinent California Vehicle Code Provisions

¶18 Schnoll was convicted of “wet reckless” under CAL. VEH. CODE
§ 23103.5(a). CALIFORNIA VEH. CODE § 23103.5 states in pertinent part:

(a) If the prosecution agrees to a plea of guilty or
nolo contendere to a charge of a violation of Section 23103
in satisfaction of, or as a substitute for, an original charge
of a violation of Section 23152, the prosecution shall state
for the record a factual basis for the satisfaction or
substitution, including whether or not there had been
consumption of an alcoholic beverage or ingestion or
administration of a drug, or both, by the defendant in
connection with the offense. The statement shall set forth
the facts that show whether or not there was a consumption
of an alcoholic beverage or the ingestion or administration
of a drug by the defendant in connection with the offense.

(b) The court shall advise the defendant, prior to
the acceptance of the plea ..., of the consequences of a
conviction ... as set forth in subdivision (c).

(c) If the court accepts the defendant’s plea of
guilty or nolo contendere to a charge of a violation of
Section 23103 and the prosecutor’s statement under
subdivision (a) states that there was consumption of an
alcoholic beverage or the ingestion or administration of a
drug by the defendant in connection with the offense, the
resulting conviction shall be a prior offense for the
purposes of Section[s] 23540, 23546, 23550, 23560, 23566,
or 23622 [statutes relating to enhanced punishment for
those with prior convictions for driving under the
influence].

CAL. VEH. CODE § 23103.5(a)-(c) (emphasis added).

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No. 2021AP1119-CR

¶19 Evident from its plain language, CAL. VEH. CODE § 23103.5(a) does
not prohibit any conduct in itself; rather, as acknowledged by Schnoll in the circuit
court, this “wet reckless” statute provides a dispositional alternative to OWI-
related charges originally filed under CAL. VEH. CODE § 23152. See Claire, 229
Cal. App. 3d at 649 (“[CAL. VEH. CODE S]ection [23103.5] governs attempts to
plea-bargain a charge of driving under the influence of alcohol, in violation of
section 23152, into a simple reckless driving charge under section 23103.”).

¶20 In other words, a “wet reckless” conviction under CAL. VEH. CODE
§ 23103.5 relates to a violation of one or more of the OWI-related subsections in
CAL. VEH. CODE § 23152, including as pertinent here:

(a) It is unlawful for a person who is under the
influence of any alcoholic beverage … to drive a vehicle.

(b) It is unlawful for a person who has 0.08 percent
or more, by weight, of alcohol in his or her blood to drive a
vehicle.

CAL. VEH. CODE § 23152(a), (b).

IV. Analysis

¶21 The question presented by this appeal is whether Schnoll’s “wet
reckless” conviction under CAL. VEH. CODE § 23103.5(a), pertaining to violations
of CAL. VEH. CODE § 23152(a) and (b), counts as a prior offense under WIS. STAT.
§ 343.307(1)(d).

¶22 To repeat, WIS. STAT. § 343.307(1)(d) counts as prior offenses:
“[c]onvictions under the law of another jurisdiction that prohibits a person from …
using a motor vehicle while intoxicated or … [using a motor vehicle] with an
excess or specified range of alcohol concentration … as those or substantially

9
No. 2021AP1119-CR

similar terms are used in that jurisdiction’s laws.” Sec. 343.307(1)(d); see also
Carter, 330 Wis. 2d 1, ¶30. Under WIS. STAT. § 340.01(9r), a “conviction” within
the meaning of WIS. STAT. § 343.307(1)(d) is “an unvacated adjudication of guilt,
or a determination that a person has violated or failed to comply with the law in a
court of original jurisdiction ....”).

¶23 Pursuant to the statutory structure stated above, Schnoll’s “wet
reckless” conviction under CAL. VEH. CODE § 23103.5(a) was a “determination”
that Schnoll violated one or more of the provisions in CAL. VEH. CODE § 23152.
See CAL. VEH. CODE § 23103.5(a) (stating that pleas under this section are “in
satisfaction of, or as a substitute for,” original charges of violations of CAL. VEH.
CODE § 23152). Specifically, Schnoll’s “wet reckless” conviction was a
“determination” that he violated CAL. VEH. CODE § 23152(a) and (b), which
prohibit a person from driving a vehicle while under the influence of alcohol and
driving a vehicle with a BAC of 0.08, respectively. The conduct prohibited in
CAL. VEH. CODE § 23152(a) and (b) falls squarely within the prohibited conduct
listed in WIS. STAT. § 343.307(1)(d) (“using a motor vehicle while intoxicated or
… [using a motor vehicle] with an excess or specified range of alcohol
concentration”). See Puchacz, 323 Wis. 2d 741, ¶12 (“the out-of-state statute
need only prohibit conduct similar to the list of prohibited conduct in
§ 343.307(1)(d)”).

¶24 Therefore, Schnoll’s “wet reckless” conviction under CAL. VEH.
CODE § 23103.5(a), pertaining to violations of CAL. VEH. CODE § 23152(a) and
(b), counts as a prior offense under WIS. STAT. § 343.307(1)(d).

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No. 2021AP1119-CR

V. Schnoll’s Arguments

¶25 Schnoll argues that because CAL. VEH. CODE § 23103.5 “is not an
offense that prohibits ‘using a motor vehicle while intoxicated … or with an
excess or specified range of alcohol concentration,’” WIS. STAT. § 343.307(1)(d),
“the California Vehicle Code does not meet the Wisconsin statutory requirement
of intoxication or an ‘excessive’ or ‘specified range’ of alcohol concentration.”
However, this argument is refuted by the above analysis of the language of CAL.
VEH. CODE § 23103.5 read together with CAL. VEH. CODE § 23152, showing that a
“wet reckless” conviction under CAL. VEH. CODE § 23103.5 does involve the
prohibition of conduct listed in WIS. STAT. § 343.307(1)(d).7

¶26 Schnoll also argues that because California engages in a practice of
purging “wet reckless” convictions after seven years, his driving record in
California is currently clean and, accordingly, because “California would not
pursue a second offense, then neither should Wisconsin.” However, Schnoll
identifies no basis in Wisconsin law for purging an out-of-state OWI-related
offense from a defendant’s record. Moreover, even an expunged conviction
“remains ‘an unvacated adjudication of guilt’ and thus, must be counted for
purposes of supporting a prior conviction in OWI-related offenses.”
Braunschweig, 384 Wis. 2d 742, ¶25; see also WIS. STAT. § 340.01(9r) (defining

7
Schnoll asserts that “[n]othing in the court record reflects a finding of alcohol
consumption,” which appears to be a reference to the requirement in CAL. VEH. CODE
§ 23103.5(a) that, “the prosecution … state for the record a factual basis for the satisfaction or
substitution [for an original charge of a violation of CAL. VEH. CODE § 23152], including whether
or not there had been consumption of an alcoholic beverage … by the defendant in connection
with the offense.” However, Schnoll does not explain how the lack of such a statement in the
record of the California case negates the above-stated plain language interpretation of the
California statutes showing that a “wet reckless” conviction under CAL. VEH. CODE § 23103.5
does count as a prior offense under WIS. STAT. § 343.307(1)(d).

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No. 2021AP1119-CR

“conviction” as “an unvacated adjudication of guilt.”). Schnoll makes no
argument that his “purged” California “wet reckless” conviction was vacated so as
to fall outside the definition of conviction under Wisconsin law.

¶27 Further, as stated, the penalty for a second-offense violation of WIS.
STAT. § 346.63(1)(a), as charged in the current action, is determined by WIS.
STAT. § 346.65(2)(am)2. That statute provides the penalty for violations of
§ 346.63(1) if “the total number of suspensions, revocations, and other convictions
counted under s. 343.307(1) within a 10-year period, equals 2, except that
suspensions, revocations, or convictions arising out of the same incident or
occurrence shall be counted as one.” Sec. 346.65(2)(am)2. Under § 346.65(2c),
“the time period [in sub. (2)(am)2.] shall be measured from the dates of the
refusals or violations that resulted in the revocation or convictions.” The violation
which led to Schnoll’s “wet reckless” conviction under CAL. VEH. CODE
§ 23103.5(a) occurred on November 17, 2010 and his § 346.63(1) violation which
began this current action occurred on January 11, 2020, less than 10 years after the
California offense. Thus, the offense counts even if the conviction has been
purged.

¶28 Finally, Schnoll makes an argument regarding discrepancies in the
Wisconsin records pertaining to the nature and dates of his California “wet
reckless” conviction. Specifically, he notes that his Wisconsin Department of
Transportation driving record reports a “BAC Conviction” with a date of
December 18, 2010, but he was convicted of the “wet reckless” offense under
CAL. VEH. CODE § 23103.5 on February 2, 2011. Schnoll argues that because the
Department of Transportation record incorrectly states the nature and date of the
California “wet reckless” conviction, the record is inaccurate and unreliable to
prove his prior conviction.

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No. 2021AP1119-CR

¶29 However, this discrepancy in the Department of Transportation
record is irrelevant because Schnoll does not dispute that he was arrested and
convicted under CAL. VEH. CODE § 23103.5 for violations of CAL. VEH. CODE
§ 23152(a) and (b) within ten years of his arrest in the current case.

¶30 Further, as Schnoll notes in his reply brief, the December 18, 2010,
“conviction” date is likely the date that his license was suspended. See Gikas v.
Zolin, 6 Cal. 4th 841, 846, 863 P.2d 745 (Cal. 1993) (explaining California’s
“administrative per se” laws providing for the suspension of a person’s driver’s
license after an arrest for driving under the influence, prior to conviction). Indeed,
the Wisconsin Department of Transportation record indicates that the
December 18, 2010, “conviction” was actually a suspension for “excessive blood
alcohol level.” Schnoll then asserts that “[a]dministrative suspensions are not
‘convictions’ falling within the purview of WIS. STAT. § 343.307.” However,
Schnoll cites no legal authority for this assertion, and the law is to the contrary.
See Carter, 330 Wis. 2d 1, ¶¶51-56 (concluding that an administrative suspension
following a violation of Illinois’s “zero tolerance” law, “punish[ing] a person who
is less than 21 years of age for refusing to submit to a chemical test, or for using a
motor vehicle with an alcohol concentration above 0.00[,]” is a conviction within
the meaning of WIS. STAT. §§ 340.01(9r) and 343.307(1)(d)); State v. Jackson,
2014 WI App 50, ¶¶4, 12, 354 Wis. 2d 99, 851 N.W.2d 465 (concluding that an
Illinois statutory summary suspension following a citation for OWI and PAC
“counts as a prior conviction under WIS. STAT. § 343.307(1)”).8

8
Regardless, as Schnoll’s “wet reckless” conviction and his administrative suspension
both arose out of the November 2010 incident, they are counted as one conviction under WIS.
STAT. § 346.65(2)(am)2.-7. (stating “suspensions, revocations, or convictions arising out of the
same incident or occurrence shall be counted as one.” (emphasis added)).

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No. 2021AP1119-CR

CONCLUSION

¶31 For the reasons set forth above, I conclude that the circuit court
properly determined that Schnoll’s “wet reckless” conviction under CAL. VEH.
CODE § 23103.5 counts as a prior offense under WIS. STAT. § 343.307(1)(d).
Accordingly, I affirm and remand for further proceedings.

By the Court.—Order affirmed and cause remanded for further
proceedings.

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

14