State v. Jack Ray Zimmerman, Jr.

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.
November 4, 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. 2020AP475 Cir. Ct. No. 2019TR2191

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE MATTER OF THE REFUSAL OF JACK RAY ZIMMERMAN, JR.:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JACK RAY ZIMMERMAN, JR.,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Washington County:
JAMES K. MUEHLBAUER, Judge. Affirmed.
No. 2020AP475

¶1 GUNDRUM, J.1 Jack Ray Zimmerman, Jr., appeals from an order
denying his motion to dismiss the complaint and revoking his operating privileges
based upon his refusal to submit to a breath test following his arrest for operating a
motor vehicle while intoxicated (OWI), third offense. For the following reasons,
we affirm.

Background

¶2 After Zimmerman’s arrest for OWI, third offense, the deputy read to
him the Informing the Accused form and asked him if he would submit to a breath
test, to which Zimmerman responded, “No.” The deputy then issued Zimmerman
a Notice of Intent to Revoke Operating Privilege.

¶3 After the refusal hearing, Zimmerman filed a motion to dismiss the
complaint, arguing that his convictions for violations of WIS. STAT. §§ 940.09(1),
Homicide by Intoxicated Use of a Vehicle or Firearm, and 940.25(1), Injury by
Intoxicated Use of a Vehicle, in 1988 should not be considered as penalty
enhancers, which make the current charge his third OWI. The circuit court
rejected this argument and ordered Zimmerman’s operating privileges revoked for
three years. Zimmerman appeals.

Discussion

¶4 Zimmerman summarizes the issue before us on appeal as “whether
[his] offenses for violations under [WIS. STAT.] §§ 940.09(1) & 940.25(1) which
occurred prior to January 1, 1989[,] ought to be counted as penalty enhancers in

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.

2
No. 2020AP475

drunk driving related prosecutions.” To answer this question, we must interpret
WIS. STAT. § 346.65(2)(am). The interpretation of a statute is a question of law
we review de novo. State v. Carter, 2010 WI 132, ¶19, 330 Wis. 2d 1, 794
N.W.2d 213.

¶5 WISCONSIN STAT. § 346.65(2)(am) provides:

Any person violating [WIS. STAT. §] 346.63(1):

.…

3. … [S]hall be fined not less than $600 nor more than
$2,000 and imprisoned for not less than 45 days nor more
than one year in the county jail if the number of convictions
under [WIS. STAT. §§] 940.09(1) and 940.25 in the person’s
lifetime, plus the total number of suspensions, revocations,
and other convictions counted under [WIS. STAT.
§] 343.307(1), equals 3 ….

(Emphasis added.)

¶6 Zimmerman contends that “the notion of ‘lifetime’ counting ... did
not actually include the accused’s entire natural life.” Considering
“enabling”/“implementation” language related to an earlier version of this statute,
he posits that the legislature must have intended that violations of WIS. STAT.
§§ 940.09(1) and 940.25(1) “were to be counted for the person’s lifetime
beginning with the date of January 1, 1989 expressly set forth in Act 237.”
(Underlining added.) Alternatively, Zimmerman asserts that WIS. STAT.
§ 346.65(2)(am) is ambiguous and therefore we must interpret it in his favor due
to the “Rule of Lenity.”

¶7 We see no ambiguity here as this statute is as plain as they come,
and there is no reason to look outside of it. See Zelman v. Town of Erin, 2018 WI
App 50, ¶12, 383 Wis. 2d 679, 917 N.W.2d 222 (in interpreting a statute, “[w]e
first look to the language of the statute, and if the language is clear and

3
No. 2020AP475

unambiguous, we define the language of the statute in accordance with its ordinary
meaning” (citation omitted)). Under the language chosen by the legislature, if at
any time during a person’s life he/she was convicted under WIS. STAT.
§§ 940.09(1) or 940.25(1), each such conviction shall be counted. There simply is
no other reasonable way to read the language.

¶8 Because there is no dispute that prior to his arrest in this case
Zimmerman was convicted of one count of WIS. STAT. § 940.09(1) and one count
of WIS. STAT. § 940.25(1), the circuit court properly found that his offense in this
case was a third offense. Thus, we affirm.2

By the Court.—Order affirmed.

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

2
Zimmerman also argues: “If this court concludes that Mr. Zimmerman was
mischarged, Deputy Conery’s informing him that he was a ‘third offender’ impermissibly
interfered with his right to make an informed decision regarding whether he should submit to an
implied consent test.” Because we conclude that Zimmerman was not “mischarged,” this issue
falls away.

Zimmerman also asserts, in his reply brief, that we should summarily reverse the order of
the circuit court because the State’s response brief on appeal was untimely. He recognizes that
this is a discretionary decision on our part. See Raz v. Brown, 2003 WI 29, ¶14, 260 Wis. 2d 614,
660 N.W.2d 647. We decline to so exercise our discretion.

4