State v. Jeffery Scott Wiganowsky

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.
October 24, 2019
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. 2019AP884-CR Cir. Ct. No. 2018CT469

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

JEFFERY SCOTT WIGANOWSKY,

DEFENDANT-RESPONDENT.

APPEAL from a judgment of the circuit court for Jefferson County:
WILLIAM F. HUE, Judge. Reversed and cause remanded.

¶1 BLANCHARD, J.1 Under Wisconsin’s penalty structure for
operating while intoxicated (OWI) offenses, the level of offense severity is
determined in part by “the total number of [driving privilege] suspensions,

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 unless otherwise noted.
No. 2019AP884-CR

revocations, and other convictions counted under [WIS. STAT.] § 343.307(1).”
WIS. STAT. § 346.65(2)(am)2. (emphasis added). Pertinent here, one paragraph in
§ 343.307(1) provides that “convictions” for counting purposes include those
imposed under the law of another state that prohibits “an excess or specified range
of alcohol concentration” in the blood of an operator. Sec. 343.307(1)(d).

¶2 Here, a Wisconsin prosecutor charged Wiganowsky with a second
OWI offense based on the allegation that a Wyoming “Blood Alcohol Content
violation”—not a formal conviction, but instead the result of a Wyoming
administrative process—counts as a first OWI “conviction” under the Wisconsin
OWI counting law. I will refer to this as “the Wyoming BAC violation.”
Wiganowsky argued successfully in the circuit court that the Wyoming BAC
violation should not count as a prior “conviction” under WIS. STAT.
§ 343.307(1)(d) and that, therefore, this case involves only a first offense.

¶3 Following the reasoning of opinions of our supreme court and the
court of appeals, I conclude that the State has carried its burden of establishing
that the Wyoming BAC violation is a valid basis for imposition of the enhanced
penalty, and accordingly reverse. See State v. Carter, 2010 WI 132, ¶¶38, 43, 59,
330 Wis. 2d 1, 794 N.W.2d 213 (interpreting “convictions” counted under WIS.
STAT. § 343.307(1)(d) to include administrative suspensions under Illinois law);
State v. List, 2004 WI App 230, ¶¶2-3, 7, 10-11, 277 Wis. 2d 836, 691 N.W.2d
366 (interpreting “convictions” counted under § 343.307(1)(d) to include an
Illinois court’s placement of a person charged with OWI on court supervision).

¶4 As pertinent to the issues on appeal, the State charged Wiganowsky
with second-offense OWI based on an alleged drunk driving incident in Jefferson
County. The amended complaint alleged that this was a second offense due to the

2
No. 2019AP884-CR

Wyoming BAC violation on Wiganowsky’s driving record. More specifically, the
State took the position that Wyoming records establish that the Wyoming BAC
violation is a “conviction” for purposes of counting under WIS. STAT.
§§ 343.307(1)(d) and 340.01(9r). I now summarize these two statutes.

¶5 WISCONSIN STAT. § 343.307(1)(d) provides in pertinent part:

(1) The court shall count the following … to
determine the penalty …:

….

(d) Convictions under the law of another
jurisdiction that prohibits a person … with an excess or
specified range of alcohol concentration; ….

See Carter, 330 Wis. 2d 1, ¶¶29-30 (explaining that this is the correct way of
excerpting § 343.307(1)(d), even though the provision is “not a model of clarity”).
From this point forward, I refer to § 343.307(1)(d) as “(1)(d).”

¶6 WISCONSIN STAT. § 340.01(9r) provides in pertinent part:

“Conviction” or “convicted” means … a
determination that a person has violated or failed to comply
with the law in … an authorized administrative tribunal, …
in this state or any other jurisdiction.

See Carter, 330 Wis. 2d 1, ¶¶31-43 (explaining that the definition of “conviction”
in § 340.01(9r) applies to the term “convictions” in (1)(d); overruling the holding
in State v. Machgan, 2007 WI App 263, 306 Wis. 2d 752, 743 N.W.2d 832, that
the definition of “conviction” in § 340.01(9r) does not supply the definition of
“convictions” in (1)(d)). I will refer to § 340.01(9r) as “(9r).”

¶7 Wiganowsky moved the circuit court to dismiss the amended
complaint on the ground that the Wyoming BAC violation does not count for
purposes of (1)(d), because it does not meet the definition of “conviction” in (9r).

3
No. 2019AP884-CR

¶8 In response, the State conceded that the Wyoming records that the
State relies on do not reflect a disposition that Wyoming would deem a criminal
conviction—that is, Wiganowsky was not convicted of a violation of WYO. STAT.
ANN. § 31–5–233 (West 2019) (providing criminal penalties, including for a first
offense, for “[d]riving or having control of vehicle while under influence of
intoxicating liquor or controlled substances”).2 Instead, the State made
representations to the following effects, none disputed by Wiganowsky.

¶9 In 2015, Wiganowsky was charged in Wyoming with drunk driving
as a first offense, an alleged violation of criminal law. But the Wyoming
prosecuting authority permitted him to enter into a deferred prosecution
agreement, which did not require him to enter a plea of guilty or no contest to the
criminal charge. Wiganowsky successfully fulfilled his obligations under the
deferral agreement and, as a result, the criminal case was dismissed, leaving no
Wyoming criminal conviction on his record. At the same time, however, his
conduct in the same incident resulted in the Wyoming BAC violation: his driving
privileges were administratively suspended, based on the alleged blood test result
of an alcohol concentration of .08 or greater.3 Wiganowsky failed to successfully
contest this administrative suspension, as he could have at least attempted to do
under Wyoming law.4

2
All references to the Wyoming Statutes Annotated are to the July 2019 version unless
otherwise noted.
3
Wyoming law provides that if an operator’s blood test reveals a blood alcohol
concentration above .08 percent, the operator’s license is administratively suspended. WYO.
STAT. ANN. § 31–6–102(e).
4
A suspended operator has the opportunity to challenge that status through an
administrative review process. See Wyoming Dept. of Transp. v. Haglund, 982 P.2d 699, 703
(Wyo. 1999). Separately, Wiganowsky’s certified driving record, which was submitted to the
(continued)

4
No. 2019AP884-CR

¶10 With that background, the State argued that the reasoning of our
supreme court in Carter, which I discuss below, resolves this issue in the State’s
favor.

¶11 The court disagreed and dismissed the amended complaint based on
arguments advanced by Wiganowsky. The State appeals.

¶12 “The proper interpretation of a statute and case law raises questions
of law that we review de novo.” State v. Starks, 2013 WI 69, ¶28, 349 Wis. 2d
274, 833 N.W.2d 146.

¶13 I now summarize List and Carter in chronological order. Carter
cites List with approval, and reading the cases together resolves this appeal. I
discuss List first because the court in List used broader language to explain its
understanding of pertinent legislative intent than did the court in Carter, but the
broad language in List is not inconsistent with any statement in Carter, and List
remains good law.5

circuit court in this case, reflects that his operating privileges were suspended by Wyoming for
the full “effective” period under the imposed administrative suspension.
5
I briefly observe that there may be theoretical tension on one point between the two
opinions. One passage in State v. List, 2004 WI App 230, ¶¶9-10, 277 Wis. 2d 836, 691 N.W.2d
366, seems to simply say that Wisconsin courts apply Wisconsin law to determine if
administrative events in other jurisdictions are countable under Wisconsin statutes—that is, the
question is not whether an out-of-state administrative action is a “conviction” under that state’s
laws, but instead is a “conviction” under (9r) and (1)(d). However, parts of this passage, read in
isolation, could possibly suggest that Wisconsin courts cannot examine the laws of other states to
determine whether a prior offense counts as a conviction under the terms of (1)(d). But even
assuming that dubious interpretation of that passage in List, our supreme court in State v. Carter,
2010 WI 132, 330 Wis. 2d 1, 794 N.W.2d 213, makes clear that Wisconsin courts may consider
the laws of other states for this purpose and Carter controls. See id. at ¶¶9-14, 18, 24-25, 50-65;
see also State v. Jackson, 2014 WI App 50, ¶14, 354 Wis. 2d 99, 851 N.W.2d 465 (“Carter
instructs that we are to determine whether the out-of-state law ... ‘prohibits conduct specified in
[the applicable Wisconsin statute].’” (emphasis added) (quoting Carter, 330 Wis. 2d 1, ¶45)).

5
No. 2019AP884-CR

¶14 Like Wiganowsky, List was charged in Wisconsin with second
offense OWI and argued that an alleged prior violation occurring outside
Wisconsin should not count as a “conviction” under (1)(d). List, 277 Wis. 2d 836,
¶1.6 Also as in Wiganowsky’s case, the prior out-state-violation against List had
been generated by resolution of a drunk-driving charge. Id., ¶¶2-3, 5. In List’s
case, however, this had not resulted in an outside-Wisconsin administrative
suspension as in Wiganowsky’s case. Instead, an Illinois court had placed List on
18 months of court supervision. Id. Upon successful completion of the court
supervision, List was not adjudicated of guilt or convicted under Illinois law. Id.

¶15 List argued that, under (1)(d), the only outside-Wisconsin OWI
offenses that count are those that result in a formal conviction under the laws of
the other state, and because his court supervision did not count as a formal
conviction under Illinois law, it should not be counted under (1)(d). List, 277
Wis. 2d 836, ¶5. This is so, List argued, because the opening phrase in (1)(d)—
“[c]onvictions under the law of another jurisdiction”—means that, under the laws
of the other state, the disposition at issue must be a deemed a formal conviction,
not something like court supervision. Id., ¶¶5, 7.

¶16 The List court rejected this argument. Interpreting the statutory
language “in the context in which it is used; not in isolation but as part of a
whole,” see State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58,
¶46, 271 Wis. 2d 633, 681 N.W.2d 110, the List court determined that the phrase
“under the law of another jurisdiction” does “not delimit[] ‘convictions,’” but

6
The court in List, interpreted both (1)(d) and (9r) from the 2001-02 version of the
statutes, but there is no difference in language from the current version of the statute that could
matter.

6
No. 2019AP884-CR

instead “introduce[es] and pertain[s] to ‘that prohibits’ and the remainder of the
paragraph.” List, 277 Wis. 2d 836, ¶7. As part of its analysis, the court observed
that the final phrase in (1)(d)—“as those or substantially similar terms are used in
that jurisdiction’s laws”—“indicates the broad scope of para. (d).” Id., ¶8.
Significantly, the court noted that this means that “Wisconsin even counts prior
offenses committed in states with OWI statutes that differ significantly from our
own.” Id.

¶17 Turning to (9r), the List court determined that an Illinois disposition
of court supervision is a “conviction,” because it “was a result of a determination
that [List had] ‘violated or failed to comply with the law in a court of original
jurisdiction,’” and therefore counts as a conviction as defined by Wisconsin law.
List, 277 Wis. 2d 836, ¶10 (quoting (9r)).

¶18 What the court stated next is notable for purposes of this appeal,
because it rejected the proposition that the Wisconsin legislature contemplated that
a deferred prosecution agreement in a drunk driving case in another jurisdiction
renders any disposition arising from the same incident uncountable:

Further, as the State notes, because Wisconsin does
not permit deferred prosecution agreements for alcohol-
related driving offenses, to give preferential treatment at
sentencing to those convicted in states that permit such
agreements would be inconsistent with the policy choice of
our legislature. Counting offenses committed in other
states effectuates the purposes of OWI and repeater statutes
in general. State v. Neitzel, 95 Wis. 2d 191, 193, 289
N.W.2d 828 (1980) (“Because the clear policy of the
statute is to facilitate the identification of drunken drivers
and their removal from the highways, the statute must be
construed to further the legislative purpose.”); State v.
Banks, 105 Wis. 2d 32, 49, 313 N.W.2d 67 (1981) (“[T]he
purpose of general repeater statutes is to increase the
punishment of persons who fail to learn to respect the law
after suffering the initial penalties and embarrassment of
conviction.”).

7
No. 2019AP884-CR

List, 277 Wis. 2d 836, ¶11 (emphasis added). The first step of the reasoning here
is that the legislature enacted the counting-related statutes, such as (1)(d) and (9r),
in pursuit of a broad policy purpose to deter and punish repeat drunk driving. The
second step is that, with this broad purpose in mind, the statutes contemplate that,
when defendants are arrested on drunk driving charges in other states and this
results in alternatives to formal conviction (court supervision, deferred
prosecution, diversion), this necessarily implies determinations by the other states
that the defendant “violated or failed to comply with the law” within the meaning
of (9r) and these are countable “convictions.” And, the reasoning proceeds,
Wisconsin courts should not give defendants “preferential treatment” for
Wisconsin OWI counting purposes based on the fact that a defendant was able to
take advantage of one of these alternatives available in the outside-Wisconsin
jurisdiction.

¶19 Turning to Carter, Carter was charged in Wisconsin with a fourth
offense OWI and argued that it should be a second offense, because two prior
Illinois suspensions of operating privileges on Carter’s driving record should not
count as prior “convictions” under (1)(d).7 Carter, 330 Wis. 2d 1, ¶¶6-7, 28-65.
Unlike the court supervision imposed on List, but like Wiganowsky’s Wyoming
BAC violation, the suspensions in Carter’s Illinois cases were the products of an

7
The parties in Carter also disputed whether Carter’s Illinois suspensions counted under
WIS. STAT. § 343.307(1)(e) (counting “[o]perating privilege suspensions … under the law of
another jurisdiction arising out of a refusal to submit to chemical testing”), but the court
determined that Carter’s “driving record does not provide sufficient information to conclude that
the suspensions arose from refusals to submit to testing.” Carter, 330 Wis. 2d 1, ¶¶22-27. I
discuss § 343.307(1)(e) no further and focus on the court’s discussion of (1)(d).

Separately, the court in Carter, interpreted both (1)(d) and (9r) from the 2007-08 version
of the statutes, but there is no difference in language from the current version of the statutes that
could matter.

8
No. 2019AP884-CR

Illinois administrative process that Carter had not successfully challenged in either
instance. Id., ¶¶10-14.

¶20 As pertinent here, under the Illinois administrative process, when a
chemical test showed that an operator under age 21 had a blood alcohol
concentration greater than 0.00 but less than 0.08, the operator’s privilege could be
administratively suspended, but the operator “ordinarily” faced no criminal
prosecution. Id. In the event of such an administrative suspension, the youthful
operator could request a hearing before the Illinois Secretary of State to challenge
it, and the secretary’s decision was subject to judicial review. Id., ¶¶11-13. Like
Wiganowsky, Carter had failed to successfully challenge either of his
administrative suspensions.

¶21 With that background, the Carter court held that “in the context of
the language of WIS. STAT. § 343.307(1)(d),” an Illinois administrative suspension
of the type Carter received “is a conviction under a law of another jurisdiction that
prohibits … using a motor vehicle with an excess or specified range of alcohol
concentration.” Id., ¶55. That is, Carter’s suspensions “fall squarely within the
prohibited conduct listed” in (1)(d). Id., ¶¶55-56. This is because the suspensions
“are convictions under WIS. STAT. §§ 340.01(9r) and 343.307(1)(d) as
administrative determinations in an authorized administrative tribunal that a
person has violated or failed to comply with a law and that the conduct prohibited
under the Illinois law falls squarely within conduct specifically prohibited in”
(1)(d). Id., ¶56; see also State v. Jackson, 2014 WI App 50, ¶14, 354 Wis. 2d 99,
851 N.W.2d 465.

¶22 Notably, the court in Carter recognized that Wisconsin has “absolute
sobriety” statutes similar to the Illinois laws that resulted in Carter’s

9
No. 2019AP884-CR

administrative suspensions, but also recognized that under WIS. STAT. § 343.307,
the similar Wisconsin sanctions are not counted under Wisconsin law.8 Carter,
330 Wis. 2d 1, ¶¶15-17, 59-60. This did not prevent the court from proceeding to
analyze whether, despite these differences, Wisconsin law recognizes the Illinois
suspensions as prior “convictions” for counting purposes. Id., ¶18; see also id.,
¶¶63-64.

¶23 Affirming the approach of the court in List, the court in Carter made
the unqualified statement that the pertinent portion of (1)(d) “should be read” to
provide that “convictions under the law of another jurisdiction that prohibits a
person from using a motor vehicle with an excess or specified range of alcohol
concentration” shall be counted. Id., ¶30. “This interpretation comports with the
text (and its punctuation) and fulfills the objectives of the OWI statutes to prohibit
both operating while intoxicated and operating when tests show a prohibited
alcohol concentration in excess of that permitted by statute.” Id.

¶24 Also affirming the approach of the court in List, the court rejected
Carter’s argument that the definition of “conviction” in (9r) does not apply in
(1)(d). Carter, 330 Wis. 2d 1, ¶36. “Applying the definition of ‘conviction’ under
[(9r)] to the word ‘convictions’ in [(1)(d)] comports with the text of the statutes
and the legislative policy choice evidenced in the legislative history of [(1)(d)] and
[§ 343.307(1)(e)] to ensure that [(1)(d) and (1)(e)] apply broadly to prior out-of-
state conduct.” Id., ¶¶42-43 & n.16 (overruling Machgan, 306 Wis. 2d 752, ¶16,

8
The court cited revocation as a penalty for the youthful driver in Wisconsin who
improperly refuses to submit to a test for prohibited alcohol concentration under WIS. STAT.
§§ 346.63(2m), 343.305(10)(em) and suspension as a penalty for the youthful driver in Wisconsin
who operates a motor vehicle with an alcohol concentration of more than 0.00 but less than 0.08
under WIS. STAT. § 343.30(1p). Carter, 330 Wis. 2d 1, ¶¶15-17; see also id., ¶¶59-60.

10
No. 2019AP884-CR

which had held that a Missouri alcohol-related administrative suspension of
driver’s license did not count under § 343.307(1)).

¶25 Consistent with the List court’s statement about not giving
“preferential treatment” to those favored by outside-Wisconsin statutory schemes
or practices, the court’s conclusion in Carter was based in part on legislative
history of (1)(d), reflecting “that the legislature intended the scope of [(1)(d)] to be
broad.” Id., ¶39. The history includes the decision of the legislature in 1989 to
remove the requirement that “only violations of other statutes in conformity with
Wisconsin law” are counted. Id., ¶39 & n.14.

¶26 In sum, the court in Carter held that the meaning of the phase
“[c]onvictions” “under ‘the law of another jurisdiction that prohibits’” in (1)(d),
means that the non-Wisconsin jurisdiction “need only have a law that prohibits
conduct specified in WIS. STAT. § 343.307(1)(d),” which as pertinent here includes
“operating with an excess or specified range of alcohol concentrations.” Id., ¶44-
45.

¶27 All of the discussion in List and Carter summarized above
establishes that the Wyoming BAC violation here, which is the prior conviction
alleged in the amended complaint, must be counted under Wisconsin law. That is,
under those cases, the Wyoming BAC violation was a “determination” by an
authorized administrative tribunal that Wiganowsky failed to comply with a
Wyoming law prohibiting a specified concentration of alcohol in his blood while
operating and Wiganowsky should not receive “preferential treatment” on the
ground that Wyoming authorities had the ability to, and did, offer him a deferral
option to resolve a criminal charge. On appeal Wiganowsky fails to present a

11
No. 2019AP884-CR

developed argument to the contrary. I now discuss two brief contentions he
makes.

¶28 Wiganowsky purports to base his first argument on a Wyoming
court interpretation of a Wyoming statute in a case with facts that differ
significantly from those presented here. See Wyoming Dept. of Transp. v.
Haglund, 982 P.2d 699, 702-03 (Wyo. 1999). Haglund holds that outright
acquittal, based on affirmatively proven innocence, on a criminal drunk driving
charge in Wyoming may preclude or truncate a Wyoming administrative
suspension based on the same incident, under a Wyoming statute that establishes
the conditions that must be satisfied before authorities must return a driver’s
license to a licensee following a suspension. Id. (interpreting WYO. STAT. ANN.
§ 31–7–138(e)(i)(A)). Wiganowsky argues that, applying the reasoning in
Haglund here, the decision of Wyoming prosecutors to defer Wiganowsky’s
criminal charges had the effect of vacating the Wyoming BAC violation under
Wyoming law, and therefore the Wyoming BAC violation could not be a
“conviction” under (1)(d) and (9r).

¶29 I reject this argument on the ground that the court in Haglund limits
its analysis of the Wyoming statute to the acquittal-based-on-factual-innocence
scenario. There is no starting point for Wiganowsky’s argument, given this
limited holding in Haglund, because it explicitly rests on the determination that,
when the trial court “accepted” Haglund’s defense that she had not driven drunk,
this stood as a valid finding that she was not in fact intoxicated at the time at issue
in the suspension, and therefore “there is no need to” continue with the
suspension. See Haglund, 982 P.2d at 703. In sharp contrast, Wiganowsky was
deferred, not “acquitted,” on the Wyoming criminal drunk driving charge, nor was

12
No. 2019AP884-CR

there any finding by any court or agency that he did not have the alleged excess
blood alcohol concentration.

¶30 Wiganowsky’s second argument is that the allegations of the
amended complaint fail to state or give rise to reasonable inferences sufficient to
support the further allegation that the Wyoming BAC violation counts under
Wisconsin OWI law. This argument may have two, alternative parts: (1) the
amended complaint is too vague, or is incomplete, in referencing the Wyoming
BAC violation; or (2) even if it makes sufficiently clear, complete references to
the Wyoming BAC violation, it is insufficient to explain why the Wyoming BAC
law counts under Wisconsin law.

¶31 The first possible part of this argument would have no merit.
Wiganowsky fails to point to any missing element in what the amended complaint
alleged:

The defendant’s driving record/Criminal History
reflects one (1) prior suspension as counted under
§ 343.307(1)(d) and 340.01(9r), Wis. Stats., to wit: Blood
Alcohol Content violation (Wyoming), 1st Offense
(12/25/2015 violation; 1/24/2016 suspension effective
date). His certified driving record from the State of
Wyoming reflects a per se administrative suspension for
operating a motor vehicle with a blood alcohol
concentration of .08 or greater.

(Emphasis in original.) If the purported missing element is that this language does
not include reference to the criminal charge that resulted in a deferral, this
argument would go nowhere. To repeat, the basis for the OWI-level determination
is the valid Wyoming BAC violation alone.

¶32 The second possible part of this argument is completely
undeveloped. And, in any case, the allegation in the amended complaint raises a

13
No. 2019AP884-CR

clear inference that an authorized administrative entity in Wyoming had
determined that Wiganowsky had operated with “an excess” alcohol
concentration, and this would be sufficient to allege a prior conviction for
Wisconsin OWI counting law purposes under List and Carter for the reasons
discussed above.

By the Court.—Judgment reversed and cause remanded.

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

14